Supreme Court Judgments

R. v. Noble, [1997] 1 S.C.R. 874

Her Majesty The Queen                                                                   Appellant

v.

Sean Jeffrey Noble                                                                            Respondent

Indexed as:  R. v. Noble

File No.:  25271.

1996:  October 29; 1997:  April 24.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Evidence ‑‑ Inferences ‑‑ Failure to testify ‑‑ Accused charged with breaking and entering and possession of instrument suitable for breaking into motor vehicle ‑‑ Trial judge convicting accused on basis of driver’s licence he had provided as identification at time of offence and his failure to testify ‑‑ Whether trial judge erred in drawing adverse inference from accused’s failure to give evidence.

The manager of an apartment building found two young men in the parking area of his building, one of whom appeared to be attempting to break into a car with a screwdriver.  When the manager asked the man for identification, he handed over an expired driver’s licence.  The manager testified that he thought the photograph on the licence accurately depicted the man in front of him in the garage and told the man that he could retrieve the licence from the police.  The accused was eventually charged with breaking and entering and having in his possession an instrument suitable for the purpose of breaking into a motor vehicle.  At trial, neither the manager nor anyone else could identify the accused, but the trial judge concluded that he as the trier of fact could compare the picture in the driver’s licence with the accused in the courtroom and conclude that the driver’s licence accurately depicted the accused.  He also was satisfied that the building manager would have carefully examined the licence at the time of the incident.  The trial judge noted that the accused faced an overwhelming case to meet as a result of the licence, yet remained silent.  In the trial judge’s view, he could draw “almost an adverse inference” that “certainly may add to the weight of the Crown’s case on the issue of identification”.  The accused was convicted on both counts.  The Court of Appeal set aside the conviction and ordered a new trial.

Held (Lamer C.J. and La Forest, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.

Per L’Heureux‑Dubé, Sopinka, Cory, Iacobucci and Major JJ.:  The right to silence, which has been recognized as a principle of fundamental justice under s. 7  of the Canadian Charter of Rights and Freedoms , is based on society’s distaste for compelling a person to incriminate him‑ or herself with his or her own words.  Just as a person’s words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt.  The presumption of innocence, enshrined at trial in s. 11( d )  of the Charter , provides further support for this conclusion.  In order for the burden of proof to remain with the Crown, the silence of the accused should not be used against him or her in building the case for guilt.  Recent case law, particularly R. v. François, [1994] 2 S.C.R. 827, and R. v. Lepage, [1995] 1 S.C.R. 654, confirms that silence may not be treated as a piece of inculpatory evidence by the trier of fact.  Some reference to the accused’s silence by the trier of fact may not offend these Charter  principles.  Where in a trial by judge alone the trial judge is convinced of the accused’s guilt beyond a reasonable doubt, the accused’s silence may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt.   Because of the potential for confusion, however, trial judges should avoid referring to silence in this respect.  Reference to the accused’s silence is also permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified.

While the principles governing the judge and the jury as trier of fact are identical, it is clear that there are differences between the two in practice.  The first difference is found in s. 4(6)  of the Canada Evidence Act , which prevents a trial judge from commenting on the silence of the accused.  The second practical difference is that while judges give reasons which permit appellate review of the specific basis for a finding of guilt, juries do not give reasons and courts are prohibited from speculating about the reasoning process of a jury in reaching a verdict.  While it is impossible to prevent a jury from drawing whatever inference they please from the failure to testify,  it remains an error of law for the jury to become convinced of guilt beyond a reasonable doubt as the result of the silence of the accused at trial.

The appellate review cases indicate that the trier of fact and the appellate court reviewing the decision of the trier of fact cannot use the failure to testify as a piece of evidence in itself suggestive of guilt.  In any event, the principles generally governing appellate review are not necessarily identical to those governing the trial.  Even if cases have held that courts of appeal may refer to silence as a factor in assessing the reasonableness of the verdict or in deciding whether to apply the curative provision, this does not alter the conclusion that at trial silence cannot be used as a piece of inculpatory evidence.

In the limited case of alibi, the failure of the accused at trial to testify and expose him‑ or herself to cross‑examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence.  There are two reasons for permitting such a limited exception to the right to silence at trial: the ease with which alibi evidence may be fabricated, and the fact that the alibi defence is not directly related to the guilt of the accused.

Here the trial judge appears to have partially relied upon the accused’s failure to testify in reaching his belief in guilt beyond a reasonable doubt.  Since such reasoning constituted an error of law, the judgment of the Court of Appeal ordering a new trial should be confirmed.

Per Lamer C.J. and McLachlin J. (dissenting):  When the Crown presents a case to meet that implicates the accused in a strong and cogent network of inculpatory facts, the trier of fact is entitled to consider the accused’s failure to testify in deciding whether it is in fact satisfied of his or her guilt beyond a reasonable doubt.  Under the right circumstances, silence can be probative and form the basis for natural, reasonable and fair inferences.  Juries and appellate courts are entitled to give weight to the fact of the accused’s silence.  As long as the Crown has first made out a case to meet, there are certain situations where the web of inculpation fashioned by the Crown requires the accused to account for unexplained circumstances or face the probative consequences of silence.

An inference which merely confirms prior conclusions of guilt is superfluous.  Further, it is illogical to say that silence may be used by judges and juries but only to the extent that it highlights the fact that the Crown’s evidence remains uncontradicted or to say that trial judges and juries must not weigh the silence of the accused on the evidentiary scales, but in reviewing whether their verdicts are reasonable appellate courts can assume that they did.  If the role of a trier of fact is to have any meaning, appellate courts must undertake their statutory responsibility to review the fitness of verdicts and to cure trial errors on the same understanding of the silence of an accused.

When the Crown provides a case to meet, all of the evidence to sustain a conviction has been put forth by the Crown in keeping with its burden of proof.  If a conviction is subsequently entered, regardless of the use of the accused’s silence, the trier of fact has concluded that the Crown has proved its case beyond a reasonable doubt, and nothing else.  In this respect, the act of drawing adverse inferences is conceptually similar to evidentiary reverse onus provisions in the Criminal Code .   Drawing adverse inferences from the silence of the accused is akin to a general proclamation from Parliament, for all offences, that where the accused is trapped by a host of inculpatory evidence to which only he or she can answer, the accused should offer an explanation or face the risk that there may be negative consequences from his or her silence.  That is not to say that the act of drawing adverse inferences is contrary to the presumption of innocence.  The accused’s Charter  protection lies in the case to meet.  Even if it were held that the act of drawing adverse inferences is a limitation on an accused’s s. 11(d) rights, however, it is a reasonable one.

This approach to adverse inferences is consistent with the letter and spirit of s. 4(6)  of the Canada Evidence Act .  If adverse inferences themselves were impermissible, s. 4(6)  would not merely prohibit “comment”, but would prohibit the drawing of adverse inferences altogether.  Sopinka J.’s reasons indirectly challenge the constitutionality of s. 4(6) , which has not been contested before this Court.

Having found that the Crown had established an overwhelming case to meet and that it was a “virtual outcry situation”, the trial judge properly inferred guilt from the accused’s silence.  This inference was natural and reasonable and, given the existence of a case to meet, was perfectly consistent with the accused’s right to silence and the presumption of innocence.

Per La Forest and Gonthier JJ. (dissenting): The reasons of Lamer C.J. were agreed with, except that no comment should be made with respect to the constitutional validity of s. 4(6)  of the Canada Evidence Act , an issue that is not before the Court.

Per McLachlin J. (dissenting):  The first question that arises is whether the Crown has established a case to meet, that is, whether it has adduced evidence which, if believed, would establish proof beyond a reasonable doubt.  A second question arises  at the end of the trial, namely whether the trier of fact should believe the Crown’s evidence.  At this second stage, the judge or jury may consider the absence of evidence contradicting the Crown’s case to meet, including the accused’s failure to testify.  To say that an inference has been drawn from the accused’s failure to testify is only to say that the Crown’s evidence stands unchallenged.  This does not violate the accused’s right to silence or presumption of innocence.

Cases Cited

By Sopinka J.

Considered:  R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Johnson (1993), 12 O.R. (3d) 340; referred to:  R. v. Jenkins (1908), 14 C.C.C. 221; Ibrahim v. The King, [1914] A.C. 599; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Amway Corp., [1989] 1 S.C.R. 21; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. François, [1994] 2 S.C.R. 827; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Schwartz, [1996] B.C.J. No. 3145 (QL); R. v. Boss (1988), 46 C.C.C. (3d) 523; Avon v. The Queen, [1971] S.C.R. 650; R. v. Pavlukoff (1953), 106 C.C.C. 249; R. v. Leaney, [1989] 2 S.C.R. 393; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Steinberg v. The King (1931), 56 C.C.C. 9, aff’d [1931] S.C.R. 421; Corbett v. The Queen, [1975] 2 S.C.R. 275; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Branco (1993), 25 C.R. (4th) 370; R. v. Maloney (1994), 136 N.S.R. (2d) 23; R. v. Pabani (1991), 10 C.R. (4th) 381; R. v. Patel (1991), 42 Q.A.C. 77; R. v. Albert (1987), 77 N.B.R. (2d) 269; R. v. Demyen (1975), 26 C.C.C. (2d) 324; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Cleghorn, [1995] 3 S.C.R. 175; Russell v. The King (1936), 67 C.C.C. 28; R. v. Bogart (1993), 33 B.C.A.C. 225.

By Lamer C.J. (dissenting)

R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Burdett (1820), 4 B. & Ald. 95, 106 E.R. 873; R. v. Jenkins (1908), 14 C.C.C. 221; Steinberg v. The King (1931), 56 C.C.C. 9, aff’d [1931] S.C.R. 421; Avon v. The Queen, [1971] S.C.R. 650; Corbett v. The Queen, [1975] 2 S.C.R. 275; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Vézeau v. The Queen, [1977] 2 S.C.R. 277; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Leaney, [1989] 2 S.C.R. 393; R. v. François, [1994] 2 S.C.R. 827; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Pavlukoff (1953), 106 C.C.C. 249; R. v. Jackson (1991), 12 W.C.B. (2d) 270; McConnell v. The Queen, [1968] S.C.R. 802; R. v. Johnson (1993), 12 O.R. (3d) 340; R. v. Appleby, [1972] S.C.R. 303; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Boss (1988), 46 C.C.C. (3d) 523; Murray v. Director of Public Prosecutions (1992), 97 Cr. App. R. 151; R. v. Cowan, [1995] 3 W.L.R. 818;  Weissensteiner v. The Queen  (1993), 178 C.L.R. 217; R. v. Kanaveilomani (1994), 72 A. Crim. R. 492; Trompert v. Police, [1985] 1 N.Z.L.R. 357; Hall v. Dunlop, [1959] N.Z.L.R. 1031.

By McLachlin J. (dissenting)

Dubois v. The Queen, [1985] 2 S.C.R. 350; Weissensteiner v. The Queen (1993), 178 C.L.R. 217.

Statutes and Regulations Cited

Canada Evidence Act , R.S.C., 1985, c. C‑5 , s. 4(6) .

Canadian Charter of Rights and Freedoms , ss. 7 , 11( c ) , (d).

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 348(1) (a), (2) (a) [rep. & sub. c. 27 (1st Supp.), s. 47], 351(1), 686(1)(a)(i) [rep. & sub. 1991, c. 43, s. 9 (Sch., item 8)], (b)(iii).

Criminal Evidence (Northern Ireland) Order 1988, S.I. 1988/1987 (N.I. 20), art. 4.

Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33, s. 35.

Authors Cited

Delisle, R. J.  Annotation to R. v. François (1994), 31 C.R. (4th) 203.

Delisle, R. J.  “Silence at Trial: Inferences and Comments” (1997), 1 C.R. (5th) 313.

Dennis, Ian.  “The Criminal Justice and Public Order Act 1994: The Evidence Provisions”, [1995] Crim. L.R. 4.

Gooderson, R. N. Alibi. London: Heinemann Educational Books Ltd., 1977.

Jackson, John.  “The Right of Silence: Judicial Responses to Parliamentary Encroachment” (1994), 57 Mod. L. Rev. 270.

Munday, Roderick.  “Cum Tacent Clamant: Drawing Proper Inferences from a Defendant’s Failure to Testify” (1996), 55 Cambridge L.J. 32.

Paciocco, David M.  Charter Principles and Proof in Criminal Cases.  Toronto: Carswell, 1987.

Ratushny, Ed.  “The Role of the Accused in the Criminal Process”, in Walter S. Tarnopolsky and Gérald‑A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms .  Toronto: Carswell, 1982, 335.

APPEAL from a judgment of the British Columbia Court of Appeal (1996), 106 C.C.C. (3d) 161, 75 B.C.A.C. 98, 123 W.A.C. 98, 47 C.R. (4th) 258, allowing the accused’s appeal from his conviction on charges of breaking and entering a dwelling place with intent to commit an indictable offence and of having in his possession an instrument suitable for breaking into a motor vehicle, and ordering a new trial.  Appeal dismissed, Lamer C.J. and La Forest, Gonthier and McLachlin JJ. dissenting.

William F. Ehrcke, for the appellant.

Gil D. McKinnon, Q.C., and Tom Arbogast, for the respondent.

The following are the reasons delivered by

1                        The Chief Justice (dissenting) -- I have had the benefit of reading the reasons of my colleague Sopinka J. and I must respectfully disagree with his interpretation of the previous decisions of this Court that have addressed the prospect of drawing adverse inferences from an accused’s silence at trial. 

2                        According to Sopinka J. the silence of an accused can only be used by the trier of fact in two very limited senses.  The accused’s silence may: (1) confirm prior findings of guilt beyond a reasonable doubt; and (2) remind triers of fact that they need not speculate about unstated defences.  With greatest respect, this misinterprets the case law.   This Court and others have repeatedly held that when the Crown presents a case to meet that implicates the accused in a “strong and cogent network of inculpatory facts”, the trier of fact is entitled to consider the accused’s failure to testify in deciding whether it is in fact satisfied of his or her guilt beyond a reasonable doubt.   As I wrote for a majority of this Court in R. v. P. (M.B.), [1994] 1 S.C.R. 555, at  p. 579:

Once ... the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences .... In other words, once there is a “case to meet” which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes -- in a broad sense -- compellable.  That is, the accused must answer the case against him or her, or face the possibility of conviction. [Emphasis in original.]

3                        This proposition is hardly novel.  It emerged at common law some time ago in at least three notable cases.  See R. v. Burdett (1820), 4 B. & Ald. 95, 106 E.R. 873;  R. v. Jenkins (1908), 14 C.C.C. 221 (B.C.S.C.); Steinberg v. The King (1931), 56 C.C.C. 9 (Ont. S.C. App. Div.), aff’d [1931] S.C.R. 421.  It has since been adopted by this Court in a long line of appeals in the last quarter of this century.  See Avon v. The Queen, [1971] S.C.R. 650; Corbett v. The Queen, [1975] 2 S.C.R. 275; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Vézeau v. The Queen, [1977] 2 S.C.R. 277; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Leaney, [1989] 2 S.C.R. 393;  P. (M.B.), supra; R. v. François, [1994] 2 S.C.R. 827; R. v. Lepage, [1995] 1 S.C.R. 654.

The Early Cases

4                        In Burdett, supra, the accused was charged with seditious libel.  Although there was a significant amount of evidence implicating him in the creation and delivery of the seditious statements, there was no direct proof that he had published them.   Of course the accused was not competent to testify in 1820, but in restoring the accused’s initial conviction, Abbott C.J. said the following about drawing inferences against the accused’s failure to furnish any evidence in his defence  at pp. 161-62:

In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction.  No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?

5                        In Jenkins, supra, a woman was murdered and, among other incriminating evidence, the eight-year-old sole eyewitness to the crime described the murderer as a man matching the description and wearing the corresponding clothing to that of the accused.   The jury convicted the accused even though the young witness identified another man as the killer who, at trial, had been placed as a substitute in the prisoner’s dock on the consent of both parties.  On appeal, the British Columbia Supreme Court determined that there was sufficient evidence to justify the conviction.  In reaching this conclusion, Irving J. drew attention to the accused’s failure to explain the collection of incriminating facts against him.  He wrote at p. 230:

It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or stand condemned. [Emphasis added.] 

6                        In Steinberg, supra, the accused was convicted of murder in the gruesome death of his partner who was shot and later found burned in his Toronto office.  One of the issues on appeal was whether the trial judge had erred by instructing the jury to consider that the perpetrator was one of the deceased’s partners because the eyewitness described the killer’s entry into the office as though it were made with a key.  In a judgment upholding the conviction, later affirmed by this Court, Middleton J.A. asserted at p. 36:

It may be that the evidence is very largely circumstantial, but the actual facts are known to the accused, and he has the right, under the laws as they now exist, to explain them away by his own evidence.  For example, he is not directly shown to have been in possession of his gun at the time of the murder.  He was in possession of it at an earlier date.  It may have been a mere coincidence that the victim was shot by this gun, and that the accused was at the time of the murder only a few yards away.  It is possible that the gun had been stolen from his residence by the murderer.  If so, he could have testified to the fact, and the jury might have accepted his explanation.  He might have been able to explain how the cartridge, which apparently fell from the revolver while he was in the room, came to be there.  He may have a satisfactory explanation as to how blood-stained overalls came to be found in his room.  He might be able to deny that he made the compromising statements to the gaol inmates, and the jury might readily have believed that the stories told were incredible; but, notwithstanding all the damning chain of evidence, he chooses to maintain silence.

No comment may be made upon this to the jury, but the law does not forbid jurors to use their intelligence and to consider the absence of denial or explanation.

7                        None of these early cases suggests that the accused should be compelled to testify or that the accused is anything other than presumed innocent until proven guilty.  They merely recognize that when an accused is implicated or “enveloped” in a case of unexplained inculpatory circumstances, there are consequences to silence that trial judges, juries, and appellate courts alike may consider in reaching a verdict.  This does not happen in every case.  A trier of fact is entitled to draw adverse inferences only where there is a “damning chain of evidence” or more aptly a “strong and cogent network of inculpatory facts”. 

The Modern Approach

8                        This approach to adverse inferences has been expressly adopted and refined by this Court in a number of judgments in recent years, both before and after the advent of the Charter .   See Avon, Corbett, Marcoux, Vézeau, Ambrose, Dubois, Leaney, P. (M.B.), François and  Lepage, supra.  The following review of this jurisprudence is repetitious, but it does serve to illustrate my point. 

9                        In Avon, supra, the accused was convicted by a jury of non-capital murder.  He appealed the conviction on the basis that the trial judge improperly commented on his failure to testify contrary to s. 4(5) (now s. 4(6)) of the Canada Evidence Act .  The Court dismissed the appeal and concluded that the trial judge’s comments were proper. In reaching this conclusion, Fauteux C.J. found that the accused’s silence was relevant and weighty evidence.  At p. 657, Fauteux C.J. quoted R. v. Pavlukoff (1953), 106 C.C.C. 249 (B.C.C.A.), for the proposition that:

... the fact that [the] accused did not testify in the face of inculpatory facts was a matter which the Court of Appeal could place on the scale. . . .

10                           In Corbett, supra, the accused appealed his non-capital murder conviction on the ground that it was unreasonable and could not be supported by the evidence.  The primary witness for the Crown was the deceased’s wife, and although she identified the accused as the murderer in a line-up three days after the killing, there were some discrepancies between her testimony and some relevant physical evidence.  In holding that  the verdict was reasonable, Pigeon J. considered the Court of Appeal’s comments regarding the evidentiary effect of the accused’s silence.  Pigeon wrote at pp. 280-81:

Section 4.5 of the Canada Evidence Act  provides that the failure of a person charged “shall not be made the subject of comment by the judge, or by counsel for the prosecution”, it does not prevent the jury from taking the fact into account without being told.  No one can reasonably think that a jury will fail, in reaching a verdict, to take into account the failure of the accused to testify, specially in a case like this.  This being so, it is a fact properly to be considered by the Court of Appeal when dealing with the question: “Is this a reasonable verdict?”

11                           In Marcoux, supra, the accused was convicted at trial of breaking and entering and theft.  The principal issue was whether it was proper for the judge to comment on the accused’s refusal to take part in a police line-up.  In affirming the conviction, Dickson J. (as he then was) concluded that the trial judge’s comments were proper.  By way of conclusion Dickson J. added at p. 775.

Even in such a matter as the failure of an accused to testify, although neither judge nor counsel can comment upon the failure, a jury is free to draw, and I have no doubt frequently does draw from the failure, an inference adverse to the accused.

12                      In Vézeau, supra, the accused was acquitted by a jury of non-capital murder.  The issue on appeal was whether the trial judge erred by instructing the jury that they could not draw any unfavourable conclusions from the silence of the accused.  The accused had presented an alibi defence at the trial, but did not personally testify.  In concluding that the trial judge’s remarks did constitute an error of law, Martland J. referred to the Court’s then recent decision in Corbett and stated at p. 288:

Tremblay C.J. makes it clear that he was not founding his judgment upon any breach of that provision [now s. 4(6)  of the Canada Evidence Act ] by the trial judge in his charge.  His point is that the subsection does not require or authorize a trial judge to tell a jury that they cannot draw their own conclusions from the fact that the accused has not given evidence.  In his opinion, with which I agree, it is open to a jury to draw an inference from the failure of the accused to testify, and, particularly, in a case in which it is sought to establish an alibi.

Martland J. later remarked at p. 292:

The failure of an accused person, who relies upon an alibi, to testify and thus to submit himself to cross-examination is a matter of importance in considering the validity of that defence.

13                      In Ambrose, supra, the two appellants were convicted of capital murder in the killings of two police officers.  On appeal the appellants raised numerous grounds for reversal, five of which the New Brunswick Appeal Division recognized as errors on the part of the trial judge, but none of which the Appeal Division concluded resulted in a miscarriage of justice.  Spence J. concluded his strong affirmation of Limerick J.A.’s decision with a curt comment regarding the silence of the two accused at pp. 727-28:

In addition, this Court is, of course, as was the Appeal Division, entitled to take cognisance of the fact that despite this mass of circumstantial evidence pointing well nigh irrefutably to the guilt of the accused neither of the accused offered any evidence in defence.  I need not cite authority for the proposition that such a circumstance is a proper one for an Appellate Court to consider.

14                      In Leaney, supra, the accused individuals were convicted of robbery, break and enter, and use of a firearm in connection with the robbery of a drugstore in Edmonton.  On appeal, it was determined that the trial judge had erred in admitting videotape evidence as similar fact evidence.  In concluding that there was no miscarriage of justice and that the verdict would necessarily have been the same absent the error,  McLachlin J. commented on the importance of the silence of the accused at p. 418:

It is well-established that in considering whether a conviction may be upheld under s. 613(1)(b)(iii) of the Criminal Code , the court may take into account the accused’s failure to explain evidence which connects him with the crime: Avon v. The Queen, [1971] S.C.R. 650, at p. 657. 

15                      Why, one might ask, has this Court commented so frequently on the effect of the accused’s silence?  Why has it arisen so often as an issue before this Court?  The reason is simple: silence can be very probative.  Consider, for example, a case of sexual assault where the victim describes her attacker as a man with a very unusual tattoo on the upper portion of his arm.  Nothing allows the Crown to call the accused as its first witness, as it could do under an inquisitorial system of criminal justice.  However, assuming the Crown, by adducing other evidence, establishes a case to meet (i.e. enough evidence to make a guilty verdict reasonable), would not every man wrongly accused who lacks the described tattoo roll up his sleeve in court to exonerate himself?  See R. v. Jackson, B.C.C.A., January 15, 1991, Victoria Registry V01065, summarized 12 W.C.B. (2d) 270.  In Jackson, the court said:

Any sensible jury would have asked itself this simple question.  If the accused is not tattooed in the manner the complainant described why has he not established the fact?  The jury’s answer to itself can only have been something to this effect: in the absence of evidence that the accused is not thus tattooed we have no rational reason not to believe the complainant.

Under the right circumstances, as in Jackson and other cases, silence can be probative and form the basis for natural, reasonable, and fair inferences.  As Ritchie J. said for the majority of  this Court in McConnell v. The Queen, [1968] S.C.R. 802, at p. 809:

... it would be “most naive” to ignore the fact that when an accused fails to testify after some evidence of guilt has been tendered against him by the Crown, there must be at least some jurors who say to themselves “If he didn’t do it, why didn’t he say so”.

16                      Recognizing that silence can be probative, this Court has said in the above-mentioned cases that it is a factor that both juries and appellate courts may properly consider.  To summarize, with respect to juries, this Court has said:

                   “it [the law] does not prevent the jury from taking the fact into account without being told” [Corbett, supra, at p. 280];

“a jury is free to draw, and I have no doubt frequently does draw from the failure, an inference adverse to the accused” [Marcoux, supra, at p. 775];

“it is open to a jury to draw an inference from the failure of the accused to testify” [Vézeau, supra, at p. 288];

“a jury is permitted to draw an adverse inference from the failure of an accused person to testify” [François, supra, at p. 835].

Similarly, with regard to the exercise of appellate court review of trial verdicts, this Court has said:

“the fact that [the] accused did not testify in the face of inculpatory facts was a matter which the Court of Appeal could place on the scale” [Avon, supra, at p. 657];

“this Court may well consider his failure to testify as a factor in disposing of this appeal” [Corbett, supra, at p. 280];

“this Court is ... entitled to take cognisance of the fact that despite this mass of circumstantial evidence pointing well nigh irrefutably to the guilt of the accused neither of the accused offered any evidence in defence” [Ambrose, supra, at pp. 727-28];

“It is well-established that in considering whether a conviction may be upheld ... the court may take into account the accused’s failure to explain evidence which connects him with the crime” [Leaney, supra, at p. 418].

17                      I interpret these passages to mean that juries and appellate courts are entitled to give weight to the fact of the accused’s silence.  This is what courts typically mean when they use the expression “adverse inference”.  This, I submit, is also what Fauteux C.J. meant when he stated that silence was “a matter which the Court of Appeal could place on the scale” (emphasis added).  As long as the Crown has first made out a case to meet, there are certain situations where the web of inculpation fashioned by the Crown requires the accused to account for unexplained circumstances or face the probative consequences of silence.

18                      My brother Sopinka disagrees.  He asserts that these cases mean only that the silence of the accused can confirm verdicts or at most serve as the basis to refuse to speculate about unstated defences.  Nothing, he says, provides that silence can be used as evidence itself.   With respect, I find Sopinka J.’s interpretation difficult to support.  For one, an inference which merely confirms prior conclusions of guilt is superfluous.  As Professor R. J. Delisle has commented:

The essence of a criminal trial is whether the Crown has established its case beyond a reasonable doubt.  If a jury cannot use the failure to testify to assist in its determination of whether they are satisfied beyond a reasonable doubt, then pray tell what the permissible adverse inference does?  For what else can the jury use it?

(Annotation to R. v. François (1994), 31 C.R. (4th) 203, at p. 204.)

Second, I find it illogical for the Court to say that silence may be used by judges and juries but only to the extent that it highlights the fact that the Crown’s evidence remains uncontradicted.   Uncontradicted by whom?  To allow a trial judge to instruct the jury that the evidence remains uncontradicted is just a coded message to remind the jury that the accused has not led any evidence in his or her own defence. The jurisprudence clearly establishes that, once the Crown has proffered a case to meet, the silence of an accused itself can be used in determining whether an accused is guilty beyond a reasonable doubt.  I believe that we should be straightforward and say so.

19                      I similarly cannot accept that because this is a novel case involving a trial judge sitting without a jury, these holdings are any less applicable to the case at bar.  In my opinion, whatever the Court is prepared to say about the proper uses of an accused’s silence, those  principles must apply to all decision makers, be they trial judges, juries, or appellate courts.  Sopinka J. acknowledges this in part.  He asserts in his reasons at para. 95 that there is no reason in principle to treat a judge’s role as trier of fact any differently from that of a jury.  However, Sopinka J. does make the claim that the principles this Court has enunciated in the context of appellate review do not apply to a situation in which a trial judge is sitting alone.  The reason, he suggests, is that the right to silence and the presumption of innocence do not apply to appellate review. 

20                      With respect, I find it profoundly illogical to say that trial judges and juries must not weigh the silence of the accused on the evidentiary scales, but in reviewing whether their verdicts are reasonable appellate courts can assume that they did.  Such a holding would lead to disparate and unjust results.  Consider the following two scenarios:

Scenario 1: A is charged with theft.  A remains silent and the trier of fact follows the supposed rule against adverse inferences  and does not weigh his silence as evidence.  The other evidence against A, while strong, does not convince the trier of fact that he is guilty beyond a reasonable doubt.  A is acquitted.

Scenario 2: A is charged with theft.  A remains silent but the trier of fact, contrary to the supposed rule against adverse inferences, weighs his silence as evidence but says nothing of it.  On the basis of his silence and the other evidence against him A is convicted. 

According to Sopinka J., if A were to appeal his conviction  in the second scenario under s. 686(1) (a)(i) of the Criminal Code , R.S.C., 1985, c. C-46 , the appellate court would be right to consider the silence of the accused in determining whether the initial verdict was unreasonable or unsupported by the evidence.  In other words, it would be proper for appellate courts to tacitly approve errors of law. 

21                      I simply cannot conceive how a trial verdict that is a miscarriage of justice can be cured by an appellate court pursuant to s. 686(1)(b)(iii) because we say that certain Charter  rights no longer apply on appeal.   I similarly cannot understand how a verdict that would ordinarily be considered unreasonable can magically become reasonable  pursuant to s. 686(1)(a)(i) simply because the case has progressed from one level of court to another.  If the role of a trier of fact is to have any meaning, appellate courts must undertake their statutory responsibility to review the fitness of verdicts and to cure trial errors on the same understanding of the silence of an accused.  I cannot endorse a criminal justice system in which an accused’s silence may be used to a greater extent by appellate judges than by triers of fact at the trial level.   Otherwise the Court is effectively sanctioning what it says is prohibited -- inviting both judges and juries to use silence as evidence, but asking them to keep it quiet.

22                      Admittedly, some of the past comments of this Court are ambiguous.  I refer principally to this Court’s recent judgment in Lepage, supra, a case on which I note that I did not sit.  In Lepage, the accused was convicted by a judge sitting alone of possession of LSD for the purposes of trafficking.  On appeal, one of the issues was whether the trial judge’s verdict was unreasonable or unsupported by the evidence.  This Court held that the verdict was proper, concluding, in part, that the trial judge would have been entitled to infer possession from the accused’s failure to offer an explanation.  Sopinka J. stated at pp. 670-71: 

Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent’s failure to offer an explanation for the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to draw such an inference in any event.  The following passage from R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at pp. 347-48, is on point:

No adverse inference can be drawn if there is no case to answer.  A weak prosecution’s case cannot be strengthened by the failure of the accused to testify.  But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), “circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”.  That point, it seems to me, can only be the point where the prosecution’s evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt.  Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence.  It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise.  When linked in that fashion to the strength of the Crown’s case, the failure to testify is no different than the failure to call other defence evidence .... If the Crown’s case cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent: R. v. Boss (1988), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.), at p. 542 C.C.C., p. 42 (sic) C.R.   But the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can be inferred: R. v. Armstrong (1989), 52 C.C.C. (2d) 190 ... As Doherty J. pointed out in R. v. Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused’s failure to testify is not an independent piece of evidence to be placed on the evidentiary scale.  It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced. [Emphasis added by Sopinka J.]

23                      Sopinka J. seems to imply in his reasons today that we should effectively read out of this passage the initial references to “adverse inferences” and “prima facie” case.  Instead, we should understand Lepage as a case in which the accused’s silence merely served to confirm the trial judge’s verdict.  I can only say that upon a careful reading I interpret Lepage to mean two things: (1) given the existence of a prima facie case, the trial judge would have been entitled to draw an adverse inference against the accused; and (2) given the totality of the incriminating evidence, there was no need to draw such an inference in that case; the silence of the accused merely served to confirm what was obvious.   In my opinion, these conclusions are not mutually exclusive.    

24                      Moreover, we can all agree that the passage from R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.),  as quoted by Sopinka J. in Lepage, is at best unclear.  As much as parts of Arbour J.A.’s reasons seem to suggest that the accused’s silence cannot be used as a “make-weight”, other parts indicate otherwise.  In the two paragraphs immediately following the passage quoted by Sopinka J., Arbour J.A. stated the following at pp. 348-49:

On the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation.  Failure to testify is not evidence of guilt.  It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt.  However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross-examination, the judge or jury may properly draw from that an inference unfavourable to the accused.

In short, judges, like juries, may draw an inference from the failure of the accused to testify, but only in circumstances where the inference is justified.  For one thing, if, at the end of the prosecution’s case, the evidence is such that a properly instructed jury, acting reasonably, could not convict, the accused is entitled to an acquittal, on a motion to that effect, without having been called to tender a defence, let alone to testify.  However, assuming that the prosecution’s case is strong enough to survive a motion for a directed verdict, and that there is therefore a case for the defence to answer, it is not always appropriate to draw an inference of guilt from the accused’s failure to testify.  The inference is linked not only to the strength of the Crown’s case, but also to the logical expectation of an innocent explanation which can either come only from the accused, or, as in the case of an alibi, would be strengthened by his oath. [Emphasis added.]

It seems to me that the apparent wavering by Arbour J.A. on the propriety of adverse inferences relates to her concern that they not be drawn in every case, but only those cases where there is a “logical expectation of an innocent explanation”.  Indeed in stating that “it is not always appropriate to draw an inference of guilt from the accused’s failure to testify”, Arbour J.A. is clearly implying that  “inferences of guilt” sometimes are appropriate.   As I have said before, this occurs where the accused is “enveloped ... in a strong and cogent network of inculpatory facts”.

The Right of Non-Compellability and the Presumption of Innocence

25                      The act of drawing adverse inferences from the silence of an accused is not contrary to the accused’s right of non-compellability or the presumption of innocence.   This point becomes clear upon a proper understanding of the case to meet. 

26                      If the Crown establishes a case to meet, such that its case cannot be non-suited by a motion for a directed verdict of acquittal, it has put forth, by definition, sufficient evidence upon which a jury, properly instructed, could reasonably convict.  Put differently, when the Crown provides a case to meet,  all of the evidence to sustain a conviction has been put forth by the Crown in keeping with its burden of proof.   As Professor R. J. Delisle has argued:

Some object that permitting an inference of guilt modifies the burden of proof.  But query whether this is so.  The prosecution has the burden of proving the accused’s guilt beyond a reasonable doubt and the Crown will not have discharged that burden, if at all, until the end of the case after all the evidence has been heard.  The defendant’s silence may be treated as a piece of evidence in assisting the discharge of the Crown’s burden, it may constitute part of the totality of the evidence, but that does not mean the burden of proof has been shifted.

(“Silence at Trial: Inferences and Comments” (1997), 1 C.R. (5th) 313, at pp. 318-19.)

If a conviction is subsequently entered, regardless of the use of the accused’s silence, the trier of fact has concluded that the Crown has proved its case beyond a reasonable doubt, and nothing else.  As Professor D. M. Paciocco observes in Charter Principles and Proof in Criminal Cases (1987), at p. 495:

As indicated earlier, it seems clear that this principle of a case to meet relates to the Crown’s obligation to present a prima facie case so as to avoid being non-suited by a motion for a directed verdict of acquittal.  It does not refer to the Crown’s ultimate burden of proving guilt beyond a reasonable doubt.  If this is so, once the Crown meets its case, the accused can quite legitimately be expected to respond, whether by testifying or otherwise, and his failure to do so can be used as the basis for logical inferences without violating the principle.

27                      Those who are unconvinced by this perspective urge the Court to read the right to silence and the presumption of innocence together.  They contend that any use of silence which takes a case to meet to the level of a case beyond a reasonable doubt is using the accused’s Charter  right to silence to meet the Crown’s burden.  The flaw in this argument is twofold.  First, it ignores the reality that when an accused adduces no evidence in his or her own defence, a case to meet and a case beyond a reasonable doubt are simply separate standards, applied at different stages in a trial, to the very same case put forth by the Crown.  In other words, they are different ways of looking at the same evidence presented by the Crown in keeping with its burden of proof.  Second, and more importantly, it is not so much a matter of comparing a case to meet to a case beyond  a reasonable doubt.  As I have said repeatedly, these adverse inferences are not appropriate in every case which passes the case to meet threshold.  It is only where a case to meet has been put forth and the accused is enveloped in a “cogent network of inculpatory facts” that triers of fact may draw inferences from an accused’s silence.  

28                      This does not mean that the Crown is entitled to use the silence of the accused to establish its case to meet.  In Dubois, supra, the Crown sought to have the accused’s murder confession from his first trial read into evidence at his second trial, where he decided to remain silent.  In the reasons of the majority, I discussed at length the meaning of the right of non-compellability and the presumption of innocence in the context of a case to meet at pp. 357-58:

Section 11(d) imposes upon the Crown the burden of proving the accused’s guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond....

The Crown’s “burden of establishing guilt” and the “right of silence”, i.e., the concept of a “case to meet”, which are essential elements of the presumption of innocence, also underlie the non-compellability right.  For, as Professor Ratushny has written,

In many ways, it is the principle of a ‘case to meet’ which is the real underlying protection which the ‘non-compellability’ rule seeks to promote.  The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence.  However, even where a ‘case to meet’ has been presented, the burden of proof remains upon the Crown to the end.

(“The Role of the Accused in the Criminal Process”, in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms  (1982), at pp. 358-59.)

The accused need only respond once.  The Crown must present its evidence at an open trial.  The accused is entitled to test and to attack it.  If it does not reach a certain standard, the accused is entitled to an acquittal.  If it does reach that standard, then and only then is the accused required to respond or to stand convicted. 

(Self-incrimination in the Canadian Criminal Process (1979), at p. 180.)

As such, the concept of the “case to meet” is common to ss. 11(c), (d) and 13.  In the context of ss. 11(c) and 13, it means specifically that the accused enjoys “the initial benefit of a right of silence” (R. v. Appleby, supra) and its corollary, protection against self-incrimination.

29                      Nine years later, I similarly evaluated the notion of a case to meet in  P. (M.B.), supra.  In P. (M.B.) the accused was charged with indecent assault and with having sexual intercourse with his niece when she was under the age of 14.  The primary issue on appeal was whether the trial judge erred by allowing the Crown to reopen its case after defence counsel indicated its intention to present an alibi defence and the Crown thereby realized that it had gotten the relevant dates of the assaults wrong.  In discussing prejudice and the harms to be avoided by prohibiting the Crown to reopen its case, I highlighted the notions of the “case to meet” and the adverse inferences that can be drawn against an accused who chooses not to respond to a case against him.  I wrote at p. 579:

At trial, accused persons continue to be protected by a right to silence.  Specifically, they cannot be compelled to testify, and they have a right not to have their testimony used against them in future proceedings.  These protections against testimonial compulsion of the accused have been constitutionalized in s. 11(c) (right of the accused not to be compelled to testify) and s. 13 (right of witness not to have his or her testimony from one proceeding used to incriminate him or her in a subsequent proceeding) of the Charter .  As this Court observed in Dubois, supra, at p. 357, when combined with s. 11(d) (presumption of innocence), ss. 11( c )  and 13  of the Charter  protect the basis tenet of justice that the Crown must establish a “case to meet” before there can be any expectation that the accused should respond.  

All of these protections, which emanate from the broad principle against self-incrimination, recognize that it is up to the state, with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfil this task.  Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences: Dubois, supra, at pp. 357-58; D. M. Paciocco, Charter Principles and Proof in Criminal Cases (1987), at p. 495.  In other words, once there is a “case to meet” which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes -- in a broad sense -- compellable.  That is, the accused must answer the case against him or her, or face the possibility of conviction. [Emphasis in original.]

30                      In this respect, the act of drawing adverse inferences is conceptually similar to evidentiary reverse onus provisions in the Criminal Code .   The Criminal Code  is replete with provisions which, for the sake of doing justice, reverse the evidentiary burden of proof upon the accused where the Crown has proved minimal elements of an offence and the accused, because of his singular position, has knowledge which is peculiar to him-or herself.  For example, s. 348 provides:

348. ...

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein. . . . [Emphasis added.]

Similar reversals of the evidentiary burden of proof exist in cases of: (a) possession of stolen property; (b) care and control of a vehicle while intoxicated; (c) possession of a vehicle with its Vehicle Identification Number removed; (d) fighting or baiting of animals; (e) cattle theft; (f) common betting/gaming house; (g) fraud by holder of fire insurance; (h) living on the avails of prostitution, etc.  In such cases Parliament has seen fit to require the accused to furnish some evidence to explain what would otherwise be unexplainable.   In my opinion, drawing adverse inferences from the silence of the accused is akin to a general proclamation from Parliament, for all offences, that where the accused is trapped by a host of inculpatory evidence to which only he or she can answer, the accused should offer an explanation or face the risk that there may be negative consequences from his or her silence.

31                      In this respect, it is important to note that while few of these reverse onus provisions have been challenged as violations of an accused’s rights, those Criminal   Code  sections that have been contested have either been held not to violate the right to silence or the presumption of innocence or at the very least have been upheld as reasonable limits to an accused’s Charter  rights under s. 1.  See e.g. R. v. Appleby, [1972] S.C.R. 303; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Downey, [1992] 2 S.C.R. 10.

32                      In Appleby, supra, the accused was charged with having the care and control of a motor vehicle while impaired contrary to what was then s. 222  of the Criminal Code .  The accused sought to rebut the statutory presumption in s. 222 of care and control by arguing that he had entered the front seat of his cab to radio for help rather than to operate the vehicle.  In a concurring judgment upholding the accused’s conviction, Laskin J. (as he then was) discussed the meaning of the presumption of innocence and the right to silence under Canadian criminal law.  He stated, at pp. 317-18:

The “right to be presumed innocent”, of which s. 2(f) [of the Canadian Bill of Rights] speaks, is, in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted.  In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown’s evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S.

What I have termed the initial benefit of a right of silence may be lost when evidence is adduced by the Crown which calls for a reply.  This does not mean that the reply must necessarily be by the accused himself.  However, if he alone can make it, he is competent to do so as a witness in his own behalf; and I see nothing in this that destroys the presumption of innocence.  It would be strange, indeed, if the presumption of innocence was viewed as entitling an accused to refuse to make any answer to the evidence against him without accepting the consequences in a possible finding of guilt against him.

33                      The same “care and control” provision of the Criminal Code  was challenged under the Charter  in Whyte, supra.   In Whyte, the accused was found in an impaired state in the driver’s seat of his car with his body slumped over the steering wheel.  The key was in the ignition, but the engine was not running.  This Court held that its previous characterization of the legal effect of the “care and control” reverse onus provision in Appleby was still relevant under the Charter  but not conclusive of whether the section amounted to an infringement.  Indeed the Court  held that the provision did violate the accused’s s. 11(d) rights, but that it was a reasonable limit under s. 1  of the Charter .

34                      That is not to say that the act of drawing adverse inferences is contrary to the presumption of innocence.   It is crucial to recognize that the Criminal Code ’s reverse onus provisions are triggered upon proof of some elements of an offence and not a full case to meet.  Put differently, the statutory reversal of the evidentiary burden of proof presumes key elements of an offence -- the act of drawing adverse inferences does not.  In fact, in the one case where a reverse onus provision (in the Narcotic Control Act) was held to be constitutionally infirm, it was where the provision did not simply presume a key element of an offence, but where it presumed the offence itself.  See R. v. Oakes, [1986] 1 S.C.R. 103.  That said, cases such as Whyte remain important to this analysis because even if it were held that the act of drawing adverse inferences is a limitation on an accused’s s. 11(d) rights, I have no doubt that it is a reasonable one. 

35                      To summarize, I find nothing infirm in appropriate circumstances in  drawing inferences from the silence of the accused.  The accused’s Charter  protection lies, as it always has, in the case to meet.  Silence cannot be used as part of the case to meet.  But once the Crown has made out its case such that a conviction would be reasonable and there is a logical expectation that the accused adduce evidence in response, all judicial decision-makers may draw inferences of guilt based on the silence of the accused. 

Section 4(6)  of the Canada Evidence Act 

36                      This approach to adverse inferences is more consistent with the letter and spirit of s. 4(6)  of the Canada Evidence Act , R.S.C., 1985, c. C-5 , than the approach endorsed by Sopinka J.  Section 4(6) currently provides:

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.

This rule against commenting on the accused’s failure to testify was originally created to ensure that neither the court nor the prosecution would draw unfair attention to the silence of the accused.  It was not, however, intended to preclude triers of fact  from drawing natural and reasonable inferences from his silence.  Under s. 4(6), this Court has said on a number of occasions that a jury is “free to draw” and “frequently does draw” adverse inferences from the failure of the accused to explain.  See Marcoux, Corbett, Steinberg and Vézeau, supra.   If adverse inferences themselves were impermissible, s. 4(6) would not merely prohibit “comment”, it would prohibit the drawing of adverse inferences altogether. 

37                      In this respect, it is important to stress that s. 4(6) is a product of the case to meet.  A trial judge does not get to the point where he or she would be prompted to comment on the silence of the accused until well after a case to meet has been made out, at the time of charging the jury.  In fact, until the Crown has surmounted the hurdle of the case to meet, there is no telling how an accused will choose to respond in his or her defence.  But once the trial judge has concluded that there is sufficient evidence such that a guilty verdict would be reasonable, s. 4(6) is invoked.  At this point, s. 4(6) suggests that we do not want juries to be overwhelmed by the silence of the accused, but we also do not want juries to close their minds to the probative value of the failure to explain.  The end result is that s. 4(6) permits what comes naturally.

38                      By contrast, I question how Sopinka J.’s position can be reconciled with s. 4(6).  Even though s. 4(6) does not prohibit adverse inferences, the intractable rule that emerges from the reasons of Sopinka J. is that no trier of fact can use the accused’s silence as inculpatory evidence adding to the weight of the Crown’s case.  The reason for this rule, he suggests, lies in an accused’s fundamental right of non-compellability and the presumption of innocence.  However, if this Court is prepared to conclude that the fundamental Charter  rights to silence and the presumption of innocence prohibit triers of fact from using the accused’s silence as evidence, one would have thought that trial judges would be empowered, if not required, to say so.  Similarly, if there are subtle, permissible uses to be made of an accused’s silence, trial judges must be able to explain them.  Otherwise, the trial judge would, as a result of s. 4(6), be precluded from instructing the jury on what Sopinka J. has characterized as one of the most important rules of law of fundamental importance where an accused has chosen not to testify.  Given that this Court is regularly called upon to quash convictions for inadequate jury charges in situations where trial judges have made what Sopinka J. would consider much less vital non-Charter errors, I cannot reconcile Sopinka J.’s position with s. 4(6)  of the Canada Evidence Act .  Indeed his reasons indirectly challenge the constitutionality of s. 4(6) , which has not been contested at this Court, but which was upheld by Cory J.A. (as he then was) at the Ontario Court of Appeal in R. v. Boss (1988), 46 C.C.C. (3d) 523.

Adverse Inferences in Other Jurisdictions

39                      Other Commonwealth jurisdictions have not only endorsed the act of drawing adverse inferences from the silence of the accused, they affirm that such inferences do not alter the traditional notions of the burden of proof and the right to silence. 

40                      For example, in a prosecution for attempted murder and possession of a firearm, the House of Lords (Northern Ireland) in 1992 held that, where there was no innocent explanation offered by the accused in circumstances that called out for one, the trial judge was entitled to infer that the accused was guilty.  See Murray v. Director of Public Prosecutions (1992), 97 Cr. App. R. 151.  In discussing the presumption of innocence, Lord Mustill said the following at p. 155:

This is not of course because a silent defendant is presumed to be guilty, or because silence converts a case which is too weak to call for an answer into one which justifies a conviction.  Rather, the fact-finder is entitled as a matter of common sense to draw his own conclusions if a defendant who is faced with evidence which does call for an answer fails to come forward and provide it.

                                                                      . . .

It is however equally a matter of common sense that even where the prosecution has established a prima facie case in the sense indicated above it is not in every situation that an adverse inference can be drawn from silence.... Everything depends on the nature of the issue, the weight of the evidence adduced by the prosecution upon it ... and the extent to which the defendant should in the nature of things be able to give his own account of the particular matter in question.  It is impossible to generalise, for dependent upon circumstances the failure of the defendant to give evidence may found no inference at all, or one which is for all practical purposes fatal.

An important feature of the House of Lords’ reasons is the observation, similar to my own, that the propriety of an adverse inference depends upon the nature of the case and the extent to which the defendant should “be able to give his own account”.

41                      In R. v. Cowan, [1995] 3 W.L.R. 818, the Court of Appeal similarly  confirmed that adverse inferences do not alter traditional notions of the burden of proof and the right to silence.  In Cowan, the accused was charged with causing grievous bodily harm and unlawful wounding.  In the face of strong but conflicting evidence, the accused chose not to testify.  At p. 822, Lord Taylor C.J. stated:

It is further argued that the section alters the burden of proof or “waters it down” to use Mr. Mansfield’s phrase.  The requirement that the defendant give evidence on pain of an adverse inference being drawn is said to put a burden on him to testify if he wishes to avoid conviction.

In our view that argument is misconceived.  First, the prosecution have to establish a prima facie case before any question of the defendant testifying is raised.  Secondly, section 38(3) of the Act of 1994 is in the following terms: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in ... section 35(3) ....”  Thus the court or jury is prohibited from convicting solely because of an inference drawn from the defendant’s silence.  Thirdly, the burden of proving guilt to the required standard remains on the prosecution throughout.  The effect of section 35 is that the court or jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case.  It cannot be the only factor to justify a conviction and the totality of the evidence must prove guilt beyond reasonable doubt. 

42                      I recognize that both Murray and Cowan were based upon legislative provisions which now expressly permit the use of adverse inferences under certain circumstances in the United Kingdom.  See  Article 4 of the Criminal Evidence (Northern Ireland) Order 1988, S.I. 1988/1987 (N.I. 20), and  s. 35 of the Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33.  Nevertheless, these cases discuss the rationale for making use of the silence of the accused and both cases serve to highlight the conventional legal wisdom that adverse inferences, when drawn in appropriate circumstances, in no way undermine the right to silence or the presumption of innocence.  Moreover, these new provisions are not limited to the sort of inferences to which Sopinka J. refers.  The provisions do not stipulate that silence can be used merely to confirm guilt or to highlight the fact that the evidence is uncontradicted.   Both enactments establish that trial judges and juries may, in certain circumstances, use the silence of the accused to draw reasonable inferences and help them determine whether the accused is guilty of the offence charged.  For further discussion see R. Munday, “Cum Tacent Clamant: Drawing Proper Inferences from a Defendant’s Failure to Testify” (1996), 55 Cambridge L.J.  32; J. Jackson, “The Right of Silence: Judicial Responses to Parliamentary Encroachment” (1994), 57 Mod. L. Rev. 270; I. Dennis, “The Criminal Justice and Public Order Act 1994: The Evidence Provisions”, [1995] Crim. L.R. 4.

43                      Although not statutory, similar developments have occurred in New Zealand, and in part, Australia.  See Weissensteiner v. The Queen (1993), 178 C.L.R. 217 (H.C.); R. v. Kanaveilomani (1994), 72 A. Crim. R. 492 (C.A. Qld.); Trompert v. Police, [1985] 1 N.Z.L.R. 357 (C.A.).

44                      In 1993, the High Court of Australia considered the impact of the accused’s silence at trial.  In Weissensteiner the accused was charged with two counts of  murder and the theft of a boat.  The circumstantial case against him was strong, but the accused did not give evidence or call any witnesses.  The High Court was thus asked to determine what use the jury could make of the accused’s failure to explain.  The court concluded that adverse inferences were permissible but to varying degrees.   For example, Mason C.J., and Deane  and Dawson JJ. held at p. 229 that the failure of the accused to give evidence can only “bear upon the probative value of the evidence which has been given and which the jury is required to consider”.    Brennan and Toohey JJ. went somewhat further and stated at p. 236:

The jury should be told that the onus remains on the prosecution and that the accused is under no obligation to give evidence, but that “it is legitimate to have regard to the fact that the accused has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear”.

45                      The approach to adverse inferences in New Zealand is more conclusive.  In Trompert, supra, the accused was charged with cultivating cannabis contrary to the Misuses of Drugs Act 1975.  The Crown established a strong case but the accused failed to testify or give evidence in his defence. The Court of Appeal held that where a prima facie case is established, the judge is entitled to take the accused’s silence into account in determining what weight should be given to the evidence against him. In reaching this conclusion, Richardson J. quoted the following excerpt from Hall v. Dunlop, [1959] N.Z.L.R. 1031 (S.C.), at p. 358 of his reasons:

I have never previously come across the suggestion that an accused person has a general privilege of silence which protects him from such inferences as will naturally be drawn from his silence in the face of proved facts which call for explanation on his part.  In the face of such facts, an accused person preserves silence at his peril, except where some particular rule of law protects him.  In my experience, but subject always to those particular rules, the silence of an accused person has always been regarded as a major indication of guilt in cases where he might be expected to speak if he were innocent.  Even where a statute prohibits comment on failure to testify, there is no privilege of silence, as no law has ever purported to prohibit the tribunal of fact, be it jury, Judge or Magistrate, from drawing such inferences as must inevitably be drawn from silence on the part of the accused.   

46                      The record suggests that in other Commonwealth jurisdictions, judges, juries, and appellate courts are entitled to consider the silence of the accused in making findings of guilt.  In adopting this position, the courts of these countries have relied on the notion of a prima facie case or a case to meet; all require as a precondition to adverse inferences that the Crown first present sufficient evidence from which a verdict of guilt would be reasonable.   Then, as I contend the case is here, decision-makers alike should consider the probative value of silence in unexplained circumstances, to assist them in determining guilt.

Application to the Case at Bar

47                      In the early morning of March 6, 1994 in Abbotsford, British Columbia, the manager of an apartment complex came upon two individuals who were breaking into an automobile in the underground parking garage.  He obtained an expired driver’s licence from one of the perpetrators, bearing the name of the respondent, Sean Noble.  Before the two perpetrators fled the scene, the apartment manager determined that the picture on the licence matched the face of the individual before him.  

48                      At trial, before a judge sitting alone, the respondent chose not to testify or call any evidence in his own defence.  In the face of the uncontradicted Crown case, he was subsequently convicted of: (a) breaking and entering with the intent to commit an indictable offence;  and (b) possession of an instrument for the purpose of breaking and entering, contrary to ss. 348(1) (a) and 351(1)  of the Criminal Code .  The respondent was given a 30-day concurrent sentence.    

49                      In reaching the guilty verdict, Lemiski Prov. Ct. J. made the following findings which I believe are necessary to set out in full:

I say that the issue is, can I be satisfied beyond a reasonable doubt on that evidence that the man that the manager dealt with based on his looking at the photograph and the driver’s licence and having the photograph before me, is the same person.  My answer is yes, I can be.

I go further than that.  The time honoured position in law has always been that there is a right to silence.  A person is presumed innocent.  A person does not have to testify in a case and the traditional long standing rule has been that a judge instructing a jury does not comment to the jury that you should consider the fact that the accused person has not taken the stand. Recent case law has confirmed in a strong way that where there is an overwhelming case to meet and where there is a virtual outcry situation that the failure of an accused person to take the stand may be the subject of comment and, in my opinion, this is that case.  Here, in my opinion, there is an outcry factor.  The accused faces an overwhelming situation.  His driver’s licence bearing his name, his photograph and other personal information has been tendered by him, a witness testifies, at the scene of a crime.  That cries out for comment from the accused and his failure to make any comment, his failure to testify at his trial with that overwhelming evidence, in my opinion, falls within this very recent case law where the failure to testify may be considered by the trier of fact, by the Court, particularly, where a judge is sitting alone, less so with a jury and may, in effect, result in almost an adverse inference but certainly may add to the weight of the Crown’s case on the issue of identification in this case.  I make that observation, mindful of the long standing rule and the reason for the rule, but aware of what have been relatively recent significant changes in that area of the law.  Here is that case that where the accused, Mr. Noble, could take the stand, for example, and say that, “My driver’s licence was stolen by somebody who looks like me”, or comment on the address or the personal information on the driver’s licence or give some explanation and that has not been forthcoming.

I am satisfied on the issue of identification beyond a reasonable doubt for those reasons that the accused before me is the person that the manager was dealing with in the garage on that evening or morning. [Emphasis added.]

50                      In my view, the trial judge’s use of the accused’s silence was proper. Although he could have been more precise, Lemiski Prov. Ct. J. clearly found, without reference to the accused’s silence, that the Crown had established an “overwhelming” case to meet.  Then, given the network of inculpatory facts, or the “virtual outcry situation” as he referred to it, Lemiski Prov. Ct. J. properly inferred guilt from the silence of the accused.  

51                      As I have gone to great lengths to discuss, having no doubt concluded that silence was probative in this case, the trial judge’s inference was natural and reasonable.  Moreover, given the existence of a case to meet, it was perfectly consistent with the respondent’s right to silence and the presumption of innocence.   For all of these reasons, I would allow the appeal.

The reasons of La Forest and Gonthier JJ. were delivered by

52                      La Forest J.  (dissenting) -- I agree with the Chief Justice, except that I prefer not to comment on the constitutional validity of s. 4(6)  of the Canada Evidence Act , R.S.C., 1985, c. C-5 , an issue that is not before us.

The judgment of L’Heureux-Dubé, Sopinka, Cory, Iacobucci and Major JJ. was delivered by

53                      Sopinka J.  -- This appeal concerns the evidentiary significance of the failure of the accused to testify at trial.  While it is plain that the accused has a right not to testify at trial, may the trier of fact consider this silence in arriving at its belief in guilt beyond a reasonable doubt?  In my view, the right to silence and the presumption of innocence preclude such a use of the silence of the accused by the trier of fact.  It is apparent in the present case that the trial judge did place independent weight on the accused’s failure to testify in reaching his belief in guilt beyond a reasonable doubt, which in my view constituted an error of law.  Consequently, I would dismiss the appeal and confirm the decision of the Court of Appeal ordering a new trial.

Facts

54                      The manager of an apartment building in Abbotsford, British Columbia, Mr. Silljer, testified that he went into the parkade of his building at around 1:00 a.m. on March 6, 1994 and found a couple of young men there, one of whom appeared to be attempting to “jimmy into a car” with a screwdriver.  One of the men showed Mr. Silljer what appeared to be marijuana cigarettes and stated that they were “having a few tokes”.  Mr. Silljer smelled no smoke and asked the men for identification.  One said he was not carrying identification, while the other handed over an expired driver’s licence.  The manager testified that he thought the licence accurately depicted the man in front of him and told the man that he could retrieve the licence from the RCMP.  The respondent was eventually charged with breaking and entering a dwelling place with intent to commit an indictable offence therein, and of having in his possession, without lawful excuse, an instrument suitable for the purpose of breaking into a motor vehicle, contrary to ss. 348(1) (a) and 351(1)  of the Criminal Code , R.S.C., 1985, c. C-46 , respectively.

55                      At trial, neither the manager Mr. Silljer nor anyone else could identify the accused, but the trial judge convicted on the basis of the licence and the accused’s silence.  The Court of Appeal allowed the respondent’s appeal ((1996), 106 C.C.C. (3d) 161, 75 B.C.A.C. 98, 123 W.A.C. 98, 47 C.R. (4th) 258) and the Crown appeals to this Court.

Relevant Statutory Provisions

56                      Canada Evidence Act , R.S.C., 1985, c. C-5 

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.

Canadian Charter of Rights and Freedoms 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

11. 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;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Criminal Code 

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law. . . .

(b) may dismiss the appeal where

                                                                       ...

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred. . . .

Prior Judgments

1.  Provincial Court

57                           Lemiski Prov. Ct. J. noted that the defence was that the evidence of identification  was insufficient to prove the case beyond a reasonable doubt.  Lemiski Prov. Ct. J. concluded that he as the trier of fact could compare the picture in the driver’s licence handed to Mr. Silljer with the accused in the courtroom and conclude that the driver’s licence accurately depicted the accused.  He also was satisfied that the building manager would have carefully examined the licence at the time he concluded that the licence accurately depicted the man in the garage.  The trial judge asked himself whether he can be satisfied beyond a reasonable doubt that the person on the licence was the person in the court at trial, and answered, “yes, I can be”.

58                      The trial judge then stated that he would go “further than that”.  He acknowledged that there was a time-honoured commitment to the presumption of innocence, but stated that recent cases have held that where there is an overwhelming case to meet, the failure of the accused to take the stand may be the subject of comment.  The trial judge held that the accused in the case before him faced an overwhelming case to meet as a result of the licence, yet remained silent.  In the trial judge’s view, he could draw “almost an adverse inference” that “certainly may add to the weight of the Crown’s case on the issue of identification”. 

59                      The trial judge was satisfied beyond a reasonable doubt on the issue of identification and convicted the respondent on both counts.

2.  Court of Appeal for British Columbia (1996), 106 C.C.C. (3d) 161

(i)  McEachern C.J.B.C.

60                      The first ground of appeal was that since some portions of the trial transcript had been lost, the Court of Appeal could not review adequately the reasonableness of the trial judge’s decision and that therefore a miscarriage of justice had occurred.  McEachern C.J.B.C. dismissed this ground of appeal and that decision is not before this Court.

61                      Turning to the use made by the trial judge of the accused’s silence, McEachern C.J.B.C. reviewed the judgment of the trial judge and concluded that, while it was not altogether clear, on balance, the trial judge did place some reliance upon the failure to testify in reaching a conviction.  He concluded that it would be unsafe to consider the case on any other basis.

62                      McEachern C.J.B.C. then proceeded to examine thoroughly recent case law on the permissible inferences from an accused’s failure to testify.  He concluded that the silence of an accused cannot be placed on the evidentiary scales, but rather if an accused is silent in the face of evidence that would support a directed verdict of guilty, it is not for the trier of fact to speculate about unstated defences; the belief in guilt beyond a reasonable doubt is not disturbed by the silence of the accused.  McEachern C.J.B.C. noted (at p. 173) that the silence of the accused may be motivated by a variety of reasons, such as the “hopeless” witness who would harm his or her cause by testifying, whether or not he or she was guilty.

63                      In the case at bar, McEachern C.J.B.C. noted that the trial judge stated that the silence of the accused “certainly may add to the weight of the Crown’s case”, which was a fatal misdirection.  McEachern C.J.B.C. set aside the conviction and ordered a new trial. 

(ii)  Southin J.A. (dissenting)

64                      Southin J.A. agreed with the majority that the ground of appeal based on the missing transcript  should be dismissed, but disagreed with respect to the silence issue.  The question of law she considered is to what extent, if at all, the absence of evidence from the accused can weigh in the determination of the verdict.  Southin J.A. concluded that it would be curious if a judge must give himself an instruction he cannot give, because of a statutory provision, to the jury (see s. 4(6)  of the Canada Evidence Act ).  Southin J.A. held that the evidentiary significance of an accused’s failure to adduce evidence is that although it is true that a man is not called upon to explain suspicious things, there comes a time when a man is so enveloped by inculpatory circumstantial evidence that that man is bound to make some explanation or stand condemned: R. v. Jenkins (1908), 14 C.C.C. 221 (B.C.S.C.).  Southin J.A. held that if the judge is satisfied that the case put forward by the Crown requires some explanation if it is not to be accepted, yet the accused fails to provide that explanation, there is no reason for the judge not to be satisfied in guilt beyond a reasonable doubt. 

65                      In the present case, counsel for the accused put forward the argument that it was contrary to common sense for a thief to hand over his driver’s licence, thus whoever handed over the licence was not a thief.  Southin J.A. noted that this argument implied that the accused might well have lost his licence or given it to somebody else, but no explanation was put forward by the accused in this regard.  For the judge to accept the identification argument in the face of the accused’s silence would have required him to indulge in speculation.  Southin J.A. concluded that the trial judge did not make an error of law and would have dismissed the appeal.

(iii)  Donald J.A.

66                      Donald J.A. was of the view that the difference between the reasons of McEachern C.J.B.C. and Southin J.A. rested on a differing appreciation of what the trial judge did in the present case.  Donald J.A. agreed with the Chief Justice that the trial judge had improperly drawn an adverse inference from the accused’s failure to testify and used that as an element of proof in the Crown’s case.  He thus agreed with the disposition proposed by the Chief Justice.

Issues

67                      1. Under what circumstances is a trier of fact permitted to draw an inference from the failure of an accused to give evidence, and what is the nature of that inference?

68                      2.  Did the majority in the British Columbia Court of Appeal err in law in holding that the trial judge had committed reversible error by placing the respondent’s failure to testify on the evidentiary scales?

Analysis

69                      While it is clear that the accused is neither a competent nor a compellable witness for the Crown, it is a separate question whether the silence of the accused at trial may be used against him in reaching a verdict.  Specifically, if the trier of fact is otherwise not convinced of guilt beyond a reasonable doubt, may the silence of the accused at trial be treated as a distinct piece of evidence which the trier of fact may use to become convinced of guilt beyond a reasonable doubt?  Put in other ways, may silence be placed on the evidentiary scales or may it be used as a “make-weight”?  In my view, the answer to this question is found in two common law rights which were subsequently enshrined in the Charter : the right to silence and the presumption of innocence.

The Right to Silence

70               The right to silence existed in various forms in the common law.  For example, the “confessions rule” excluded any confession that was not demonstrated to have been voluntary: Ibrahim v. The King, [1914] A.C. 599 (P.C.); the accused had a right to choose not to confess.  The common law right to silence, while it still exists, was to some extent superseded in importance by the establishment of the right to silence in the Charter .  The accused’s non-compellability at trial is now constitutionally protected under s. 11(c), but there has also been recognition of a right to silence as a principle of fundamental justice in s. 7.  R. v. Hebert, [1990] 2 S.C.R. 151, established that there is a right to silence under the Charter  which is engaged when a person is subject to the coercive power of the state.  This occurs upon arrest, charge or detention of the individual.  It is at this point that an adversarial relationship is created between the state and the individual.  In Hebert itself, it was held that the state could not trick a detained accused into making self-incriminating statements through the use of an undercover police officer eliciting information in the accused’s cell.  Once under the coercive power of the state, the accused’s right to silence could only be waived by an informed decision of the accused; state trickery was unacceptable.

71                      While Hebert confirmed the existence of the right to silence under s. 7, it remained unclear to what use the silence of the detainee could be put.  That is, while the detainee had a right to silence on arrest or detention, could this silence later be used against the accused at trial as evidence of his or her guilt?  R. v. Chambers, [1990] 2 S.C.R. 1293, settled the matter.  In that case, in addressing the jury, Crown counsel treated the appellant’s silence on his arrest as evidence of guilt.  The trial judge neglected to instruct the jury to ignore the evidence of silence on arrest, despite requests from both Crown and defence counsel to do so.  This Court held that such neglect constituted reversible error.  Cory J., speaking for a majority of six judges, stated at p. 1316 that:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.

72                      In my view, Chambers assists in analyzing the proper use by the trier of fact of the accused’s silence at trial.  Cory J. indicated that it would severely undercut the pre-trial right to silence if pre-trial silence could be used against the accused.  Similarly, in the present context, it would severely undercut the right to silence at trial, which is found in ss. 7  and 11( c )  of the Charter , if the silence could be used against the accused to convince the trier of fact of guilt.  If the case against the accused does not otherwise prove guilt beyond a reasonable doubt, to permit the trier of fact to reach a guilty verdict on the basis of the failure to testify would significantly undermine the right not to testify.  As Cory J. stated in Chambers, it would be a “snare and a delusion” to grant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty.

73                      While Chambers itself supports the conclusion that silence of the accused cannot be placed on the evidentiary scales, the underlying justification for the right to silence also supports such a conclusion.  The justification for the right to silence was affirmed by the unanimous decision of this Court in R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 40.  We stated:

Applying a purposive interpretation to s. 11(c), I am of the opinion that it was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.  Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role.

74                      In a similar vein, in the context of pre-trial silence, McLachlin J. for the majority in Hebert stated, at p. 181:

The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect’s right to choose whether to speak to the authorities or remain silent. . . . In keeping with the approach inaugurated by the Charter , our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.

I stated in Hebert, at p. 195, that:

However, it cannot be denied that, apart altogether from the privilege [against self-incrimination], the right to remain silent -- the right not to incriminate oneself with one’s words -- is an integral element of our accusatorial and adversarial system of criminal justice. [Emphasis added.]

75                      The right to silence is based on society’s distaste for compelling a person to incriminate him- or herself with his or her own words.  Following this reasoning, in my view the use of silence to help establish guilt beyond a reasonable doubt is contrary to the rationale behind the right to silence.  Just as a person’s words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt.  To use silence in this manner is to treat it as communicative evidence of guilt.  To illustrate this point, suppose an accused did commit the offence for which he was charged.  If he testifies and is truthful, he will be found guilty as the result of what he said.  If he does not testify and is found guilty in part because of his silence, he is found guilty because of what he did not say.  No matter what the non-perjuring accused decides, communicative evidence emanating from the accused is used against him.  The failure to testify tends to place the accused in the same position as if he had testified and admitted his guilt.  In my view, this is tantamount to conscription of self-incriminating communicative evidence and is contrary to the underlying purpose of the right to silence.  In order to respect the dignity of the accused, the silence of the accused should not be used as a piece of evidence against him or her.

The Presumption of Innocence

76                      The presumption of innocence, enshrined at trial in s. 11( d )  of the Charter , provides further support for the conclusion that silence of the accused at trial cannot be placed on the evidentiary scales against the accused.  Lamer J. (as he then was) stated in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357, that:

Section 11(d) imposes upon the Crown the burden of proving the accused’s guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or calling other evidence.

If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused.  In a situation where the accused exercises his or her right to silence at trial, the Crown need only prove the case to some point short of beyond a reasonable doubt, and the failure to testify takes it over the threshold.   The presumption of innocence, however, indicates that it is not incumbent on the accused to present any evidence at all, rather it is for the Crown to prove him or her guilty.  Thus, in order for the burden of proof to remain with the Crown, as required by the Charter , the silence of the accused should not be used against him or her in building the case for guilt.  Belief in guilt beyond a reasonable doubt must be grounded on the testimony and any other tangible or demonstrative evidence admitted during the trial.

77                      Some reference to the silence of the accused by the trier of fact may not offend the Charter  principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt.  If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn’t, the Crown’s case prevails and the accused will be convicted.  It is only in this sense that the accused “need respond” once the Crown has proved its case beyond a reasonable doubt.  Another permissible reference to the silence of the accused was alluded to by the Court of Appeal in this case.  In its view, such a reference is permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified.  As McEachern C.J.B.C. stated (at p. 171):

In other words, the court will not speculate that the accused may have some unstated defence, such as, in this case, that someone may have stolen his driver’s licence.

78                      Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence.  If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her.  The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused.    The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence.  Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him- or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict.  On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.

79                      The reasons of the Chief Justice and McLachlin J., when read with my reasons, indicate that there are three ways in which the silence of the accused might be considered by the trier of fact:

(1)               Once the Crown has proffered a case to meet, the silence of the accused can be used in determining whether an accused is guilty beyond a reasonable doubt.

(2)               Inferences of guilt may be drawn from the accused’s silence “only where a case to meet has been put forth and the accused is enveloped in a ‘cogent network of inculpatory facts’”.

(3)               The silence of the accused means that the evidence of the Crown is uncontradicted and therefore must be evaluated on this basis without regard for any explanation of those facts that does not arise from the facts themselves.

80                      The Chief Justice appears to adopt both positions (1) and (2) in different parts of his reasons.  Clearly, the first position uses the silence of the accused and violates both the right to silence and the presumption of innocence.  If the Crown’s evidence, although sufficient to pass the case to meet test, would, on evaluation, fall short of proof beyond a reasonable doubt but for the evidence of the accused, then the silence of the accused becomes evidence for the Crown which enables the Crown to discharge its burden of proof beyond a reasonable doubt.

81                      The second position appears to invite the use of silence when the level of the Crown’s proof passes the case to meet test but falls slightly short of proof beyond a reasonable doubt.  In other words, the Crown has a strong case but it needs a little extra push.  The extra push will be supplied by the silence of the accused.  Of course, if the Crown’s case does not need the extra push, there would be no justification for this position.  Whether the evidence of the accused bridges the entire gap or only part of the gap between the standard of a case to meet and proof beyond a reasonable doubt, the silence of the accused becomes evidence for the Crown in discharge of its burden of proof.  In both instances, the right to silence and the presumption of innocence are violated.

82                      The third position which I have attempted to explain in my reasons simply recognizes the fact that the evidence of the Crown stands alone.  It must be evaluated on this basis.  Contradictions that have not been offered cannot be supplied.  No inference of guilt is drawn from the silence of the accused.  Rather, the silence of the accused fails to provide any basis for concluding otherwise, once the uncontradicted evidence points to guilt beyond a reasonable doubt.

83                      It is not entirely clear which position McLachlin J. adopts.  Her reasons appear to conclude that the judge or jury may take into account that the Crown’s evidence is unchallenged and decide the case on this basis.  This appears to accord with position (3) and not with positions (1) or (2).  This would not support either the reasons or the result reached by the Chief Justice.

The Case Law

84                      The principles to which I have referred which derive from ss. 7  and 11( d )  of the Charter  find ample support in recent case law of this Court.  While earlier cases on the appropriate use of silence by the trier of fact are admittedly ambiguous, recent decisions are clear: silence may not be used by the trier of fact as a piece of inculpatory evidence.  In R. v. François, [1994] 2 S.C.R. 827, the accused appealed partly on the ground that the jury had improperly drawn an inference of guilt from the accused’s failure to testify.  McLachlin J., for the majority, stated at p. 835:

This ground of appeal cannot succeed because it would require speculation as to what the jury did.  We cannot know what inferences the jury drew in this case....

In any event, subject to the caveat that failure to testify cannot be used to shore up a Crown case which otherwise does not establish guilt beyond a reasonable doubt, a jury is permitted to draw an adverse inference from the failure of an accused person to testify.... [Emphasis added.]

Major J., dissenting but concurring on this point, stated at pp. 847-48:

These cases make it clear that, where the accused does not testify, it is open to the jury to draw the inference that he or she could not have raised a reasonable doubt in the face of convincing Crown evidence.  However, it is not permissible for a jury which is not otherwise convinced that the Crown has proven guilt beyond a reasonable doubt to infer from the fact that the accused has not testified that he must be guilty.  In other words, where the Crown has proven its case beyond a reasonable doubt, the absence of the accused’s testimony may indicate that he or she is unable to raise a reasonable doubt as a basis for acquittal, but this lack of testimony cannot otherwise be used to strengthen the Crown’s case where the Crown has fallen short of proving guilt. [Emphasis added.]

85                      In my view, these comments clearly indicate that it is not permissible to use the failure to testify as a piece of evidence contributing to a finding of guilt beyond a reasonable doubt where such a finding would not exist without considering the failure to testify.  McLachlin J. stated that the failure to testify could not be used to “shore up a Crown case which otherwise does not establish guilt beyond a reasonable doubt”.  Major J. stated that “this lack of testimony cannot otherwise be used to strengthen the Crown’s case where the Crown has fallen short of proving guilt”.  In my view, these statements indicate that silence cannot be used to take an unproven case to a proven case.

86                      R. v. Lepage, [1995] 1 S.C.R. 654, revisited the question of the permissible inferences from the failure to testify.  In that case, I stated at pp. 670-71:

Although I have concluded above that Pardu J. did not draw any adverse inference from the respondent’s failure to offer an explanation for the presence of his fingerprints, I note that once the Crown had proved a prima facie case, the trial judge would be entitled to draw such an inference in any event.  The following passage from R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at pp. 347-48, is on point:

No adverse inference can be drawn if there is no case to answer.  A weak prosecution’s case cannot be strengthened by the failure of the accused to testify.  But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), “circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”.  That point, it seems to me, can only be the point where the prosecution’s evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt.  Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence.  It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise....

In this case, since the totality of the evidence enabled the trial judge to infer guilt beyond a reasonable doubt, the absence of any explanation from the respondent merely failed to provide any basis to conclude otherwise. [Emphasis added by Sopinka J. in Lepage.]

87                      Again, in my view it is clear from the passage cited that while it is permissible to conclude from the failure to testify that there is no unspoken, innocent explanation about which the trier of fact must speculate, it is not permissible to use silence to strengthen a case that otherwise falls short of proving guilt beyond a reasonable doubt.  If the totality of the evidence leads to guilt beyond a reasonable doubt, the accused’s silence simply fails “to provide any basis to conclude otherwise”.

88                      There may, however, be confusion over the use of the words “adverse inference” in the above cases.  Professor R. J. Delisle, in an annotation to R. v. François (1994), 31 C.R. (4th) 203, asked that if an adverse inference is permitted, what inference is relevant if it can only be drawn after guilt beyond a reasonable doubt has been proved?  He stated at p. 204:

The essence of a criminal trial is whether the Crown has established its case beyond a reasonable doubt.  If a jury cannot use the failure to testify to assist in its determination of whether they are satisfied beyond a reasonable doubt, then pray tell what the permissible adverse inference does?  For what else can the jury use it?

89                      As set out above, silence is not inculpatory evidence, but nor is it exculpatory evidence.  Thus, as in Lepage, if the trier of fact reaches a belief in guilt beyond a reasonable doubt, silence may be treated by the trier of fact as confirmatory of guilt.  Silence may indicate, for example, that there is no evidence to support speculative explanations of the Crown’s evidence offered by defence counsel, or it may indicate that the accused has not put forward any evidence that would require that the Crown negative an affirmative defence.  In this limited sense, silence may be used by the trier of fact.  If, however, there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt.

90                      Thus, there are permissible uses of silence by the trier of fact.  However, Delisle is correct in stating that, since these permissible uses only arise after the trier of fact has reached a belief in guilt beyond a reasonable doubt, the uses may be superfluous.  I would therefore conclude that courts should generally avoid using the potentially confusing term “inference” in discussing the silence of the accused.  “Inference” could be taken to indicate that the trier of fact used silence to help establish the case for guilt beyond a reasonable doubt, which is not a permissible use of silence.  Indeed, because of the potential for confusion, discussion of the silence of the accused should generally be avoided.  However, where silence is mentioned by the trial judge as confirmatory of guilt given the totality of the evidence, but not as a “make-weight”, there is no reversible error.  Lepage provides an example of such a situation.

91                      I turn now to consideration of R. v. P. (M.B.), [1994] 1 S.C.R. 555, a case which was pointed to by the appellant as challenging the conclusion that silence may not be placed on the evidentiary scales.  In P. (M.B.), the Court discussed the principles surrounding the power of the Crown to reopen its case after the accused had begun presenting the case for the defence.  In a passage which is properly characterized as obiter dicta, given that the case was not about the use of the failure to testify, Lamer C.J. stated at p. 579:

All of these protections, which emanate from the broad principle against self-incrimination, recognize that it is up to the state, with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfil this task.  Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences. . . . In other words, once there is a “case to meet” which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes -- in a broad sense -- compellable.  That is, the accused must answer the case against him or her, or face the possibility of conviction. [Emphasis in original.]

92                      With respect to the relevance of P. (M.B.) to the present analysis, I would note first of all that this passage was concerned with a case where the Crown had reopened its case after the defence had started its presentation.  Given Lamer C.J.’s decision that such a reopening was reversible error, it is apparent that he included these obiter dicta as a means of illustrating the potential harm to the accused as the result of the Crown reopening its case; the accused may have chosen a strategy, for example, the accused may have chosen not to testify, based on the strength of the Crown’s initial presentation.  While Lamer C.J. mentions the legal permissibility of drawing inferences from silence, the passage in general seems more concerned with the shifting of a strategic burden.  That is, the accused is in a “broad sense”, by which I infer he means “strategic sense”, compellable once the Crown has proved a case to meet; if the accused does not present a defence, he risks conviction.  This observation is not inconsistent with the impermissibility of drawing an adverse inference from silence before a case has been proved.  If a case against the accused has been adduced that is capable of supporting an inference of guilt, it may be a wise strategy for the accused to testify in order to refute the case to meet; this does not involve a shift in the legal burden of proof to the accused, but rather involves a shift of a strategic burden.  On balance, in my view, the passage in P. (M.B.) set out above is not inconsistent with the conclusion that silence may not be placed on the evidentiary scales, but rather the passage is concerned with the strategic impact of the establishment of a case to meet by the Crown on the decision of the accused to remain silent at trial.  The situation is similar to the circumstances to which I referred earlier in which the Crown has proved its case beyond a reasonable doubt.  In both cases, there is what may be referred to as a strategic burden.  In the former case, however, in which the Crown has adduced evidence capable of supporting an inference of guilt, failure to testify exposes the accused to a risk of conviction.  In the latter case, in which the Crown has proved the case beyond a reasonable doubt, the strategic burden is more compelling because failure to testify will result in conviction.  Reference to silence in either case is simply a comment on the failure to respond to the strategic burden.

93                      While the discussion thus far set out the three most recent Supreme Court cases on the subject of the permissible use of silence by the trier of fact, in my view it is also appropriate to address a recent decision of the Ontario Court of Appeal, R. v. Johnson (1993), 12 O.R. (3d) 340.  The significance of this case for the present discussion derives from the fact that Arbour J.A.’s reasons at times appear to be consistent with the analysis here -- indeed in Lepage I cited a passage from this case for support for the conclusion that silence cannot be used as a “make-weight” -- while at other times her reasons appear to challenge the present analysis.   While they are occasionally ambiguous, in my view, as illustrated by my citation of the case in Lepage, on balance the reasons in Johnson support the analysis here.  However, as an illustration of the ambiguity in the reasons, I note the following passage at pp. 348-49:

On the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation.  Failure to testify is not evidence of guilt.  It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt.

The latter sentences are difficult to reconcile with the former sentence; if silence may have “evidentiary significance”, why may it not be used to prove guilt?  However, given the vague meaning of “evidentiary significance” and the plain meaning of the latter sentences, on balance, in my view, the latter sentences are better representatives of the reasoning in Johnson.  That is, Johnson indicated that silence could not be used to help establish the guilt of the accused.  Thus, Johnson does not contradict the above reasoning.  I note that Prowse J.A. of the British Columbia Court of Appeal came to a similar conclusion about Johnson in R. v. Schwartz, [1996] B.C.J. No. 3145, and both McLachlin J. and Major J. cited Johnson as support for their conclusions in François, which conclusions are also consistent with the present analysis.

The Character of the Trier of Fact

94                      Thus far in the analysis I have not distinguished cases where the trier of fact is a jury from cases where the trier of fact is a judge.  In my view, there is no difference in the principles governing either situation; the trier of fact, whether judge or jury, cannot treat the silence of the accused as a “make-weight”.  There are several reasons for this conclusion.  First, the Charter  principles upon which the protection of the silence of the accused rests are equally valid whether informing the approach to be taken by a judge or the approach to be taken by a jury.  Whether judge or jury, the trier of fact is not permitted to place the accused’s silence on the evidentiary scales because of the right to silence and the presumption of innocence.  Second, the case law does not distinguish between the two different situations.  For example, François considered the permissible use of silence in the context of a jury trial, while Lepage concerned the permissible use of silence in the context of a trial by a judge sitting alone.  In considering in principle the permissible use of silence, the cases placed no significance on the nature of the trier of fact.  Finally, there is no reason in principle why the trier of fact should be governed by different principles depending on its character.  Whether it be trial by jury or judge alone, the role of the trier of fact is the same.

95                      While the principles governing the judge and the jury as trier of fact are identical, it is clear that there are differences between the two in practice.  The first difference is found in s. 4(6)  of the Canada Evidence Act .  Section 4(6) , whose validity is not at issue in the present case, prevents a trial judge from commenting on the silence of the accused.  The trial judge is therefore prevented from instructing the jury on the impermissibility of using silence to take the case against the accused to one that proves guilt beyond a reasonable doubt.  The second practical difference is that while judges give reasons which permit appellate review of the specific basis for a finding of guilt, juries do not give reasons and courts are prohibited from speculating about the reasoning process of a jury in reaching a verdict: see François, supra.  These two factors have a significant effect on the potential inferences from the failure to testify in a jury trial: in a jury trial, it is impossible to prevent a jury from drawing whatever inference they please from the failure to testify.  They cannot be cautioned against such an inference ex ante because of s. 4(6) , and they cannot be reversed ex post for drawing such an inference because speculation as to the jury’s reasoning is forbidden.  

96                      While there are practical considerations which prevent appellate review of the use of the silence of the accused by a jury, it remains an error of law for the jury to become convinced of guilt beyond a reasonable doubt as the result of the silence of the accused at trial.  The principle against such use of the failure to testify applies equally to a jury as it does to a judge.  I agree now as I did then with the approach of Major J. (dissenting, but not on this point) in François at p. 848:

. . . the appellant claims that the jury was not otherwise convinced beyond a reasonable doubt solely on the basis of the complainant’s testimony, and that they used the lack of accused’s testimony to strengthen the Crown’s case to a point where they felt safe in convicting.

If this was in fact what happened, then it would be an error.  However, it is impossible to know what took place either in the jury room or in the minds of the individual jurors.  What the appellant is asking us to do is to speculate that the jury reached their verdict improperly.  A jury’s verdict cannot be interfered with on the basis of speculation. [Emphasis added.]

Because of s. 4(6) and the absence of reasons, there is no practical way of preventing the jury from drawing an improper inference from silence.  The fact that the jury is permitted to do so does not elevate the use of silence to a principle of law which should be extended to all triers of fact.

97                      On a related point, I would add that nothing in s. 4(6) or in the analysis thus far prevents the trial judge from telling the jury that the evidence on a particular issue is uncontradicted.  In such a circumstance, the judge is not instructing the jury to consider the failure of the accused to testify per se, but rather is simply instructing  the jury to take note of the fact that no evidence had been led to contradict a particular point.  Rather than inviting the jury to place the failure of the accused on the evidentiary scales, the judge is instructing the jury that it need not speculate about possible contradictory evidence which has not been led in evidence.  Section 4(6) prevents the trial judge from going farther and instructing the jury to consider the failure of the accused in particular to lead contradictory evidence.  Moreover, because of the right to silence and the presumption of innocence, the trial judge qua trier of fact may not place any particular significance on the failure of the accused to lead contradictory evidence.  However, it is permissible as a means of weighing the evidence to note that evidence on a particular point is uncontradicted; the trier of fact need not speculate about contradictory evidence not put before it.

98                      As stated above, the validity of s. 4(6) is not in issue in the present case.  My colleague Lamer C.J., however, states that my reasoning in the present case indirectly challenges the constitutionality of s. 4(6).  I prefer not to decide the matter without the benefit of argument, but I disagree that my views in the present case cannot be reconciled with s. 4(6).  Notwithstanding the right to silence and the presumption of innocence, and therefore the impermissibility of using silence as inculpatory evidence, s. 4(6) may be justifiable.  I will do no more than cite some possible reasons for its constitutionality, as stated by Cory J.A. (as he then was) in R. v. Boss (1988), 46 C.C.C. (3d) 523 (Ont. C.A.), at pp. 538-39 in concluding that s. 4(6) indeed is consistent with the Charter :

[I]t could be said that s. 4(5) [now s. 4(6)] of the Canada Evidence Act  constitutes a reasoned and considered legislative attempt to protect in a measured way the rights of the accused.  By its provisions neither the judge nor the prosecutor can make any comment pertaining to the failure of the accused to testify if the accused has made such a decision.  However, counsel for the accused is entitled to make an appropriate comment on the issue.  For example, it might be explained to the jury that the case against the accused must be made out by the Crown which must bear the burden of proving all the essential elements of the offence beyond any reasonable doubt.  Counsel can stress that there is no duty upon the accused to testify and that, rather, the obligation rests upon the Crown throughout the case to satisfy them beyond all reasonable doubt that the accused has indeed committed the crime with which he or she is charged.

As these comments are not inconsistent with my views in the present case, contrary to the remarks of Lamer C.J., it is not necessarily the case that my reasoning implies that s. 4(6) is unconstitutional.

Appellate Review Cases

99                      In support of its contention that silence may be used to build the case against the accused, the appellant pointed to various appellate review cases involving s. 686  of the Criminal Code .  Section 686(1)(b)(iii) is a curative provision; notwithstanding errors of law at the trial, if the court of appeal is satisfied that no miscarriage of justice occurred when the conviction was entered, the conviction will be upheld.  In applying this curative provision, this Court has established that it is permissible for an appellate court to account for the silence of the accused.  In Avon v. The Queen, [1971] S.C.R. 650, at p. 657, Fauteux C.J. adopted the following passage from R. v. Pavlukoff (1953), 106 C.C.C. 249 (B.C.C.A.):

. . .  the fact that the accused did not testify in the face of inculpatory facts was a matter which the Court of Appeal could place on the scale in applying s. 1014(2).

100                    Recently, this Court confirmed the relevance of the failure to testify to the decision to apply the curative provision in R. v. Leaney, [1989] 2 S.C.R. 393.  In that case, McLachlin J. stated at p. 418 for the majority that:

It is well-established that in considering whether a conviction may be upheld under s. 613(1)(b)(iii) of the Criminal Code , the court may take into account the accused’s failure to explain evidence which connects him with the crime: Avon v. The Queen, [1971] S.C.R. 650, at p. 657.

See also Ambrose c. The Queen, [1977] 2 S.C.R. 717; Marcoux v. The Queen, [1976] 1 S.C.R. 763.

101                    Similarly, it has also been established that it is appropriate for an appellate court to account for the accused’s failure to testify in assessing the reasonableness of the verdict under s. 686(1)(a)(i).  In Steinberg v. The King (1931), 56 C.C.C. 9 (Ont. S.C. App. Div.) (affirmed on largely procedural grounds by this Court, [1931] S.C.R. 421), Middleton J.A. stated at p. 36:

The accused gave no evidence; and, while this cannot be commented upon to the jury, it is a factor which must be considered by the Appellate Court.  His failure to testify does not prove his guilt, but when the Court is by the statute required to dismiss an appeal unless it is satisfied that there was a miscarriage of justice, the failure of the accused to explain in any way facts which place a very heavy onus upon him cannot be ignored.

                                                                       ...

No comment may be made upon [the failure to testify] to the jury, but the law does not forbid jurors to use their intelligence and to consider the absence of denial or explanation.

102                    In considering the reasonableness of a verdict in Corbett v. The Queen, [1975] 2 S.C.R. 275, Pigeon J. for the majority stated at pp. 280-81 that:

At the end of his reasons, Branca J.A. added:

.....The accused did not testify.  He was under no duty to do so and was entitled to rely upon the presumption of innocence and the fact that the Crown had to prove his guilt beyond a reasonable doubt.  The fact that he did not testify did not relieve the Crown of the duty of proving his guilt beyond a reasonable doubt, but where as here there was evidence of a direct nature which inculpated him and which the jury accepted as truthful then this Court may well consider his failure to testify as a factor in disposing of this appeal.

Assuming that the correctness of that statement is a question of law that may be considered on this appeal, I can find no reason for disagreeing with it.  Section 4.5 [now s. 4(6)] of the Canada Evidence Act  provides that the failure of a person charged “shall not be made the subject of comment by the judge, or by counsel for the prosecution”, it does not prevent the jury from taking the fact into account without being told.  No one can reasonably think that a jury will fail, in reaching a verdict, to take into account the failure of the accused to testify, specially in a case like this.  This being so, it is a fact properly to be considered by the Court of Appeal when dealing with the question: “Is this a reasonable verdict?”

103                    The appellant submitted that since it is permissible for appellate courts to consider silence in assessing the verdict, it must be permissible for the trier of fact to consider silence in reaching a verdict.  In my view, the appellate review cases do not contradict the conclusion that silence may not be placed on the evidentiary scales, either by the trier of fact or by appellate courts.  Rather, the cases hold that appellate courts, like triers of fact, may refer to the silence of the accused as indicative of the absence of an exculpatory explanation; silence is not inculpatory, but nor is it exculpatory.  Nowhere do the appellate review cases outlined above explicitly state that silence may be used as a “make-weight” by the trier of fact, but there is wording that suggests that silence may be used simply in the limited sense of not providing an innocent explanation.  In Steinberg, for example, the court stated that the accused’s “failure to testify does not prove his guilt”, but rather the absence of an innocent explanation may be a factor in assessing the reasonableness of the verdict in the face of strong inculpatory evidence.  As noted above, in Corbett, the majority of this Court cited with approval the following statement of the Court of Appeal:

The accused did not testify.  He was under no duty to do so and was entitled to rely upon the presumption of innocence and the fact that the Crown had to prove his guilt beyond a reasonable doubt.  The fact that he did not testify did not relieve the Crown of the duty of proving his guilt beyond a reasonable doubt, but where as here there was evidence of a direct nature which inculpated him and which the jury accepted as truthful then this Court may well consider his failure to testify as a factor in disposing of this appeal. [Underlining added.]

This passage, in my view, is entirely consistent with the analysis above.  If the jury accepted as truthful the inculpatory evidence, the conviction was based not on the failure to testify but on the Crown’s case, and the absence of an innocent explanation of the inculpatory evidence is a factor for the Court of Appeal to consider in assessing the reasonableness of this conclusion.  The failure to testify was not used by the jury to find guilt beyond a reasonable doubt, but in the face of evidence which convinced the jury of guilt beyond a reasonable doubt subject only to the existence of an innocent explanation, the absence of an innocent explanation may be considered by the jury, and by an appellate court reviewing the jury’s decision, in entering or upholding a conviction.

104                    In Leaney, McLachlin J. simply stated that the “court may take into account the accused’s failure to explain evidence which connects him with the crime” (p. 418). Again, in my view, this passage is not inconsistent with the above analysis.  The appellate court, and the trier of fact, may consider the silence of the accused as failing to provide an innocent explanation for the existence of otherwise convincing inculpatory evidence.

105                    In summary, in my view, the cases indicate that  the trier of fact and the appellate court reviewing the decision of the trier of fact cannot use the failure to testify as a piece of evidence in itself suggestive of guilt.  I note in support of this reading of the case law that McLachlin J. in the majority in François at p. 835 cited, amongst other cases, Corbett as supporting the conclusion that “failure to testify cannot be used to shore up a Crown case which otherwise does not establish guilt beyond a reasonable doubt”. 

106                    In any event, the principles generally governing appellate review are not necessarily identical to those governing the trial.  At trial, the accused is presumed innocent under s. 11( d )  of the Charter , but this section does not establish a presumption of innocence in other proceedings such as appeals.  In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J. stated at p. 353:

[T]he phrase “Any person charged with an offence” in the opening words of the section [s. 11  of the Charter ] must be given a constant meaning that harmonizes with the various paragraphs of the section.  It seems clear to me that for the purposes of s. 11 it would be quite inappropriate to conclude that a convicted person is charged with an offence when confronted with a Part XXI application.  How can it be said that the right to the presumption of innocence until proven guilty (s. 11(d)) and the right to bail (s. 11(e)), for example, could have any application in the context of the unique post-conviction proceeding mandated by Part XXI? [Emphasis in original.]

In part on the basis of this passage, the majority concluded in R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908 that “as a general rule ‘[a]ny person charged’ under s. 11 does not include an accused person who is party to an appeal”.  As Lamer C.J. had earlier stated in R. v. Pearson, [1992] 3 S.C.R. 665, at p. 683, “[s]ection 11(d) of the Charter  sets out the presumption of innocence in the context of its operation at the trial of an accused person”.

107                    Thus, the presumption of innocence in s. 11(d) does not operate at the appeal level.  However, the presumption of innocence is also found in s. 7  of the Charter  and extends to other stages of the criminal process: see Pearson, supra, and R. v. Morales, [1992] 3 S.C.R. 711.  For example,  Lamer C.J. concluded  in Pearson that while R. v. Gardiner, [1982] 2 S.C.R. 368, which held that the existence of aggravating factors must be proved by the Crown beyond a reasonable doubt at a sentencing hearing, was not a Charter  case, the principle of the presumption of innocence found in s. 7 would almost certainly confirm the correctness of that decision.  While Lamer C.J. for the majority in Pearson set out that the presumption of innocence in s. 7 pervades the criminal process, he added at p. 684:

As the majority of this Court (per La Forest J.) noted in R. v. Lyons, [supra], at p. 361:

It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked.  Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

This is true with respect to the presumption of innocence as a substantive principle of fundamental justice within s. 7  of the Charter .  While the presumption is pervasive in the criminal process, its particular requirements will vary according to the context in which it comes to be applied. [Emphasis added.]

108                    In my view, the presumption of innocence does not operate with the same vigour in the context of an appeal of a conviction as it does at trial.  After the guilty verdict has been entered, it is no longer incumbent on the Crown to establish guilt ^-- that guilt having already been proved beyond a reasonable doubt ^-- rather it is incumbent on the appellant to demonstrate an error at trial.  In such a context, the presumption of innocence is not applied in the same manner as it is at trial.  In support of this conclusion, I note that provincial  appellate courts have consistently held that in hearing applications for interim judicial release pending the hearing of an appeal of a conviction, the presumption of innocence does not operate in favour of such release.  In R. v. Branco (1993), 25 C.R. (4th) 370, Finch J.A. of the British Columbia Court of Appeal stated for the court at p. 375 that:

[T]he presumption of innocence in favour of the accused before and during trial is extinguished upon conviction by proof beyond reasonable doubt of the accused’s guilt.  The conviction indicates that the Crown has successfully rebutted the presumption of innocence.  While any verdict may be overturned on appeal, a conviction nevertheless replaced the presumption of innocence with the presumption of guilt.  There is no reason to regard the appellant’s guilt as being held in a state of suspension during the appeal process.

See also R. v. Maloney (1994), 136 N.S.R. (2d) 23 (C.A.); R. v. Pabani (1991), 10 C.R. (4th) 381 (Ont. C.A.); R. v. Patel (1991), 42 Q.A.C. 77; R. v. Albert (1987), 77 N.B.R. (2d) 269 (C.A.); R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.).

109                    I conclude that the presumption of innocence under s. 7 in the context of an appeal of a conviction, if it applies at all, does not operate with the same force as it does in the setting of a trial.  Moreover, the right to silence does not have the same meaning on appeal.  At the appellate stage, a conviction has previously been entered.  Regardless of the use of silence by the appellate court in exercising its discretion to confirm the conviction or order a new trial, the conviction will not be reached on the basis of the silence of the accused, rather the presumption of guilt established by the guilty verdict will not be dislodged.  Thus, even if the appellate review cases go farther than suggesting that silence may be accounted for by the court of appeal only in the limited sense of confirming the absence of innocent explanations, the principles applying to appellate review are not necessarily those that apply to a trial.  At trial, which is the context with which the present appeal is concerned, not appellate review, the presumption of innocence and the right to silence are of paramount importance.  Moreover, recent case law, particularly François and Lepage, is clear that, at trial, silence cannot be used as a piece of inculpatory evidence.  Consequently, even if cases have held that courts of appeal may refer to silence as a factor in assessing the reasonableness of the verdict or in deciding whether to apply the curative provision, this does not alter the conclusion that at trial silence cannot be used as a piece of inculpatory evidence.  I leave for another day any final conclusion as to whether the appellate review cases were correct insofar as they implied that silence may be treated as a make-weight by an appellate court. 

Alibi Cases

110                    The appellant submitted that Vézeau v. The Queen, [1977] 2 S.C.R. 277, held that silence could be treated as a “make-weight”.  In Vézeau, this Court considered the significance of the failure to testify in the context of a defence of alibi.  In that case, the defence was alibi, but the accused did not testify.  In giving his instructions to the jury, the judge said that they could not draw any conclusion unfavourable to the accused from the fact that he had not testified.  The majority of this Court held that, aside from the prohibition of comment on the failure of the accused to testify set out in the Canada Evidence Act , it was an error of law for the trial judge to instruct the jury that they could not consider the absence of testimony by the accused in assessing the alibi.  Martland J. stated on behalf of the majority at p. 292 that:

It was part of the appellant’s defence to the charge that he could not have committed the offence because he was in Montreal when the murder occurred.  Proof of this alibi was tendered by a witness who claimed to have been with the appellant in Montreal.  The direction of the trial judge precluded the jury, when considering this defence, from taking into consideration the fact that the appellant had failed to support his alibi by his own testimony.  The failure of an accused person, who relies upon an alibi, to testify and thus to submit himself to cross-examination is a matter of importance in considering the validity of that defence.  The jury, in this case, was instructed that they could not take that fact into account in reaching their verdict.

111                    In my view, Vézeau set out a narrow exception to the impermissibility of using silence to build the case against the accused at trial.  It has clearly been recognized in other contexts that alibi defences create exceptions to the right to silence.  For example, while the accused generally has a right to silence during the investigative stage of a criminal proceeding, if an alibi defence is not disclosed in a sufficiently particularized form at a sufficiently early time to permit the police to investigate it prior to trial, the trier of fact may draw an adverse inference from the accused’s pre-trial silence: see R. v. Cleghorn, [1995] 3 S.C.R. 175.  Such a rule is one of expediency: see Russell v. The King (1936), 67 C.C.C. 28 (B.C.C.A.).  It is based upon the relative ease with which an alibi defence can be fabricated.  As Major J. stated in dissent, but for the Court on this point, in Cleghorn at pp. 188-89:

The principal reason for drawing an adverse inference against alibi evidence in the absence of adequate notice to the Crown is because such evidence can readily be fabricated.  This potential problem with alibi evidence is discussed by R. N. Gooderson in his text Alibi (1977), at pp. 29‑30:

It must be conceded that there is good reason to look at alibi evidence with care.  It is a defence entirely  divorced from the main factual issue surrounding the corpus delicti, as it rests upon extraneous facts, not arising from the res gestae.  The essential facts of the alleged crime may well be to a large extent incontrovertible, leaving but limited room for manoeuvre whether the defendant be innocent or guilty.  Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives the defence a fresh and untrammelled start.  It is easy to prepare perjured evidence to support it in advance.

The potential for the fabrication of alibi evidence requires that a negative inference may be drawn against such evidence where the alibi defence is not disclosed in sufficient time to permit investigation.  Nevertheless, it must be remembered that the requirement that an alibi defence be disclosed to the Crown prior to trial is an exception to the accused's right of silence:  see R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 578, per Lamer C.J., R. v. S. (R.J.), [1995] 1 S.C.R. 451, at p. 516, per Iacobucci J. 

112                    In my view, there are two reasons supporting the alibi exception to the right to silence pre-trial which apply also to the right to silence at trial: the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial.  As Gooderson stated, alibi evidence is easily fabricated through the use of perjuring witnesses.  I am therefore sympathetic to the view expressed in Vézeau that in the limited case of alibi, the failure of the accused at trial to testify and expose him- or herself to cross-examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence.  A second reason to permit such a limited exception to the right to silence at trial is that the alibi defence is not directly related to the guilt of the accused; as Gooderson put it, “[a]libi evidence, by its very nature, takes the focus right away from the area of the main facts”.  Rejecting the alibi defence does not build the case for the Crown in the sense of proving the existence of the required elements of the offence in question, but rather negatives an affirmative defence actively put forward by the accused.  Using silence to inform the trier of fact’s assessment of the credibility of the accused’s affirmative defence of alibi simply goes to the alibi defence itself. 

113                    For these reasons, in my view Vézeau can be analyzed on the basis of a limited exception to the right to silence at trial.  While in general the failure to testify cannot be used to assess credibility of witnesses (see Schwartz, supra), in the case where the defence of alibi is advanced, the trier of fact may draw an adverse inference from the failure of the accused to testify and subject him- or herself to cross-examination.  While it must be conceded that this exception does undermine to a limited extent the presumption of innocence and the right to silence, it has a long and uniform history pre-dating the Charter  and must be taken to have been incorporated into the principles of fundamental justice in s. 7.

Application of the Principles to the Present Appeal

114                    The latter discussions above of the principles governing appellate review and those governing alibi defences arose in response to the appellant’s citation of the cases in its submissions.  In my view, however, the principles governing appellate review and alibi are not relevant to the disposition of the present appeal.  The principle which is applicable to the present case is simply that the failure to testify cannot be placed on the evidentiary scales by the trier of fact.  If the trial judge erred in this respect, in my view such an error would imply that the Court of Appeal was correct to order a new trial.  I note that the appellant did not raise the possibility of applying the curative provision in s. 686(1)(b)(iii) of the Criminal Code .

115                    The trial judge was somewhat unclear in setting out his reasons for conviction.  He first noted the evidence of the licence and apparently accepted both that the person on the licence was the accused, and that it was the accused who handed it to the apartment manager.  The trial judge stated that:

I say that the issue is, can I be satisfied beyond a reasonable doubt on that evidence that the man that the manager dealt with based on his looking at the photograph and the driver’s licence and having the photograph before me, is the same person.  My answer is yes, I can be.

I go further than that.

The trial judge then reviewed the implications of the failure to testify.  He noted the evidence of the licence and stated that:

[The accused’s] failure to make any comment, his failure to testify at his trial with that overwhelming evidence, in my opinion, falls within this very recent case law where the failure to testify may be considered by the trier of fact, by the Court, particularly, where a judge is sitting alone, less so with a jury and may, in effect, result in almost an adverse inference but certainly may add to the weight of the Crown’s case on the issue of identification in this case. [Emphasis added.]

He continued:

I am satisfied on the issue of identification beyond a reasonable doubt for those reasons. . . .

116                    On balance, it appears to me that the trial judge used the failure to testify as evidence going to identification which permitted him to reach a belief in guilt beyond a reasonable doubt.  Indeed, he stated explicitly that the failure to testify “certainly may add to the weight of the Crown’s case”  and concluded by finding guilt on the basis of “those reasons”, which appeared to include the discussion of the failure to testify.  In light of these statements, when the trial judge stated that he “can be” satisfied on the identity issue prior to discussing the failure to testify, in my view he indicated that the evidence before him was consistent with proof of identity, and the failure to testify took belief in identity beyond a reasonable doubt.  In any event, I agree with McEachern C.J.B.C. when he stated (at p. 169):

I am not persuaded that the trial judge did not rely upon the failure of the accused to give evidence and it would be unsafe to consider the case on any other basis.

As the British Columbia Court of Appeal stated in R. v. Bogart (1993), 33 B.C.A.C. 225, in similar circumstances, it would be dangerous to uphold the present conviction in light of the uncertainty surrounding the reasons of the trial judge.

117                    Thus, in my view, the trial judge should be taken to have partially relied upon the accused’s failure to testify in reaching his belief in guilt beyond a reasonable doubt.  Given my conclusion that such reasoning constituted an error of law, I would dismiss the appeal and confirm the judgment of the Court of Appeal ordering a new trial.

The following are the reasons delivered by

118                    McLachlin J. (dissenting) -- I agree with the Chief Justice that this appeal should be allowed.  I add only this.

119                    The difference between the positions adopted by Lamer C.J. and Sopinka J. turns on a different conception of the case to meet.  It is resolved in favour of the view taken by the Chief Justice, to my mind, by the fact that the Crown establishes a case to meet only when it adduces evidence which, if believed, would establish proof beyond a reasonable doubt.  In short, “the Crown must prove its case before there can be any expectation that [the accused] will respond”:  E. Ratushny, “The Role of the Accused in the Criminal Process”, in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms  (1982), 335, at p. 359, cited in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357.  At the end of the trial, a second question arises:  whether the trier of fact should believe the Crown’s evidence.  At this second stage, in deciding what evidence to believe, the judge or jury may consider the failure of the accused to adduce evidence contradicting the Crown’s evidence.  This is unavoidable:  it is impossible to evaluate evidence without considering whether it has been contradicted or stands alone.  Thus, as stated in the High Court of Australia in Weissensteiner v. The Queen (1993), 178 C.L.R. 217, at p. 229, per Mason C.J., and Deane and Dawson JJ., the failure of the accused to give evidence can  “bear upon the probative value of the evidence which has been given and which the jury is required to consider”.

120                    In summary, the matter must be viewed in two stages.  The first question is whether the Crown has adduced evidence which, if believed, would support a conviction, i.e. prove guilt beyond a reasonable doubt.  This is the case to meet.  The second question is whether the trier of fact should believe the Crown’s evidence.  At this second stage, and only at this second stage, the judge or jury may consider the absence of evidence contradicting the Crown’s case to meet, including the accused’s failure to testify.  Any conviction will be based on the Crown’s unchallenged evidence.  To say that an inference has been drawn from the accused’s failure to testify is only to say that the Crown’s evidence stands unchallenged. This does not violate the accused’s right to silence or presumption of innocence.

Appeal dismissed, Lamer C.J. and La Forest, Gonthier and McLachlin JJ. dissenting.

Solicitor for the appellant:  William F. Ehrcke, Vancouver.

Solicitor for the respondent:  Gil D. McKinnon, Vancouver.