On October 12, 2012, the Supreme Court of Canada issued its decision in the case of R. v. Prokofiew and ruled against an accused who argued that his decision not to testify unfairly led to his conviction. The central question on appeal was whether jurors should be permitted to consider an accused person’s decision to not testify as evidence of guilt.
CCLA intervened in the case to argue that the current law that prevents negative inferences to be drawn about an accused’s guilt from a decision to not testify should be maintained. The Crown was arguing that that the common law should be changed and that inferences could be drawn from the silence of the accused. In CCLA’s view, the presumption of innocence and the right to silence are essential to a fair trial and must be vigilantly protected.
The Supreme Court recognized that the right to silence includes the right not to have it used as evidence of guilt. However, the majority of the Court dismissed the appeal because they were satisfied that the instructions given by the trial judge were adequate and that the jury understood that that Mr. Prokofiew’s silence did not constitute evidence.
CCLA thanks Frank Addario of Frank Addario Law Group (formerly with the law firm Sack Goldblatt Mitchell LLP) and Gerald Chan and Nader Hasan of the law firm Ruby Shiller Chan for their excellent work in this case.
>> For a copy of CCLA’s factum in the case, click here
>> For a copy of the Supreme Court’s decision, click here
>> To watch the Supreme Court’s webcast of the hearing, click here