RIGHT TO SILENCE
R. v. Noble,  1 SCR 874 CanLII
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 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 CanLII 52 (S.C.C.),  2 S.C.R. 827, and R. v. Lepage, 1995 CanLII 123 (S.C.C.),  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.