Using Pre-trial Silence to Attack the Credibility of a Co-Accused
As a person charged with an offence, a defendant has the absolute right to remain silent on and after arrest. A defendant does not have to speak to the police. He does not have to answer any police questions. The right to silence (or, to remain silent) is fundamental, as is the right to choose when and how to exercise it. As the Supreme Court’s decision in Crawford [1995] 1 SCR 858 makes clear, at para. 38, the Crown cannot rely on pre-trial silence as evidence of guilt, but a co-accused can attack the credibility of another accused by referring to the other accused’s pre-trial silence. See also R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at p. 279; and R. v. Akins (2002), 59 O.R. (3d) 546 (C.A.), at para. 13.