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R. v. Prokofiew, 2012 SCC 49 (CanLII)



The Crown alleged that P and his co-accused, S, participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate harmonized sales tax that was then not remitted to the federal government as required.  The fraudulent nature of the scheme was never challenged.  The involvement of P and S in the scheme was also conceded.  The question for the jury was whether either or both accused were aware of the fraudulent nature of the scheme.  P did not testify, but was incriminated by S’s testimony. In his closing address, S’s counsel invited the jury to infer P’s guilt from P’s failure to testify.  The trial judge refrained from giving a remedial instruction to the jury about P’s right to silence.  P was convicted and sentenced and his appeal was dismissed.

                   Held (McLachlin C.J. and LeBel, Fish and Cromwell JJ. dissenting):  The appeal should be dismissed.

                   Per Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.:  Section 4(6) of the Canada Evidence Act does not prohibit a trial judge from affirming an accused’s right to silence.  Conversely, the trial judge need not affirm the accused’s right in every case, only where there is a realistic concern that the jury may place evidential value on an accused’s decision not to testify.  In such a case, the trial judge should make it clear to the jury that an accused’s silence is not evidence and that it cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.

                   In assessing the credibility and reliability of evidence upon which the Crown can and does rely, a jury is entitled to take into account, among other things, the fact that the evidence stands uncontradicted, if that is the case, and the jury may be so instructed.  The fact that evidence is uncontradicted does not mean that the jury must accept it and an instruction to that effect should also be given.

                   In this case, S’s counsel could have relied on the fact that his client had testified to argue that S was innocent and had “nothing to hide”.  Moreover, he could have emphasized that S’s testimony stood uncontradicted and that the jury could consider this in assessing whether they believed his evidence or whether it left them in a state of reasonable doubt.  What S’s counsel could not do is mislead the jury on a matter of law.  He could not invite the jury to use P’s silence at trial as evidence, much less evidence of guilt.

                   While counsel’s comment should not have been made, the judge would not have allowed the trial to proceed if he truly believed that the comment had irretrievably compromised P’s fair trial rights.  He only allowed it to proceed — with the acquiescence of P’s counsel who did not move for severance — on the belief that he could disabuse the jury of the notion that P’s silence at trial could be used as evidence of his guilt.  Although an explicit remedial instruction from the trial judge would have been preferable, his jury charge, when considered as a whole, was adequate.  The jury would have understood that the Crown could prove P’s guilt only on the evidence and, as P’s silence at trial did not constitute evidence, it could not be used to prove his guilt.

                   As for the hearsay evidence, the trial judge’s error in admitting it was harmless and there is no realistic possibility that the verdict would have been different had the error not been made.  The trial judge had warned the jury that this evidence should be approached with caution and other items of confirmatory evidence were available to the jury.  Accordingly, this is a case where the curative proviso of s. 686(1)(b)(iii) of the Criminal Code can safely be applied to uphold P’s conviction.

                   Per McLachlin C.J. and LeBel, Fish and Cromwell JJ. (dissenting):  The trial judge erred in failing to instruct the jury that no adverse inference could be drawn from P’s silence.  Whenever there is a significant risk ― as the trial judge found in this case ― that the jury will otherwise treat the accused’s silence as evidence of guilt, an appropriate remedial direction ought to be given to the jury.  That was not done here.

                   Standard instructions on the definition of evidence, the presumption of innocence, the Crown’s burden of proof and the reasonable doubt standard will not suffice.  That is particularly true where, as here, counsel for one accused has suggested unmistakably to the jury that the guilt of a co-accused may be inferred from that person’s failure to testify.

                   As a matter of principle, there is no reason why counsel whose client has testified cannot refer to that fact and suggest this indicates the client is innocent and has “nothing to hide”.  Counsel may certainly emphasize as well that the client’s testimony stands uncontradicted, even when the client asserts his or her own innocence and imputes guilt to the co-accused.  The right to make full answer and defence is not constrained by the unfavourable impact its effective exercise may have on others in jeopardy of conviction.  However, it is not absolute and cannot be exercised with total disregard for the constitutional rights of a co-accused, including that person’s right not to have his or her silence treated as evidence of guilt.

                   In this case, the absence of a remedial direction is sufficient to require a new trial.  Moreover, that error was exacerbated by the erroneous admission of hearsay evidence.  On any view of the matter, neither of the errors committed by the trial judge can be characterized as trivial.  In these circumstances, the Crown has not satisfied its onerous burden in invoking the curative proviso.

Jim O'Neil, LL.B.

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