What the Crown Can Say When the Accused does not Take the Stand

An accused has a right not to testify at trial.

See section 11(c) of the Canadian Charter of Rights and Freedoms: 
“Any person charged with an offence has the right…(c) not to be compelled to be a witness in proceedings against that person in respect of the offence.”

The failure of the accused to testify shall not be made the subject of comment by the judge, or by counsel for the prosecution.

Canada Evidence Act, section 4(6): 
“The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.”

While an accused’s silence cannot be taken into account as evidence of guilt, a decision not to testify will sometimes have the practical effect of leaving the Crown’s evidence uncontradicted.

The Crown is entitled to bring to the jury’s attention the deficiencies in the defence evidence affecting its reliability and to remark on the absence of any evidence supporting the defence theory.  The evidence is what it is, and the Crown is entitled to demonstrate its weakness. 

R. v. Howard, 2017 BCCA 263, at para. 17.


Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca






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