Report No. 180
Sopinka J observed as follows:
"the use of silence to help establish guilt beyond a reasonable doubt is contrary to 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 beyond a reasonable doubt. To use silence in this manner is to treat it as communicative evidence of guilt...The failure to testify tends to place the accused in the same position as if he has testified and admitted his guilt."
It was further held by the majority that section 11(d) protects the accused when it states that the silence of the accused cannot be placed on the evidentiary scales against the accused. The presumption of innocence indicates that it is not incumbent on the accused to present any evidence at all. If the Crown had proved the case beyond 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.
In fact, in that event, the accused need not testify, and if he does not, 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. If, silence is taken into account after arriving at a finding of guilt, it does not offend either the right to silence or the presumption of innocence. Sopinka J further observed as follows:
"The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build a case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, 35 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 her - self 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".
The majority also referred to R v. Francois 1994(2) SCR 827, and to R v. Lepage 1995(1) SCR 654, and further observed:
"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."
Sopinka J further observed that silence was not either inculpatory or exculpatory. Silence could however confirm a finding of guilt already arrived at independently on the basis of the evidence led by the prosecution. Silence may indicate that the accused has not put forward any explanation or evidence to contradict or negative the evidence produced by the prosecution to prove guilt beyond reasonable doubt. In this limited sense, silence may be used but if there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, then silence cannot be used to remove that doubt. The admissible uses of silence arise only after the trier of fact has reached the belief of guilt beyond reasonable doubt and therefore silence indeed is "superfluous". Finally Sopinka J observed:
"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 the guilt beyond reasonable which is not permissible use of silence. Indeed, because of the potential for confusion, discussion of the silence of the accused should be generally avoided. However where silence is mentioned by the trial Judge as confirmatory of guilt, given the totality of evidence, but not as a "make-weight", there is no reversible error."
It will thus be seen that according to the Canadian view it would be an error of law if the court directs the Jury to take into consideration the silence of the accused for arriving at a decision on the guilt of the accused. On the other hand, we have seen that the English view and the view of the European Court particularly in Condron's case is just the opposite. It is held there that the jury can be asked to take the silence into consideration for arriving at a decision on the guilt of the accused.