R. v. Noble

R. v. Noble
Collection
Supreme Court Judgments
Date
1997-04-24
Report
[1997] 1 SCR 874
Case number
25271
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 25271
Decision Content
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 o