R v Prokofiew: Section 4(6) of the Canada Evidence Act does not bar jury instructions related to the accused’s silence at trial
On 12 October 2012, the Supreme Court of Canada (“SCC”) released its judgment on R v Prokofiew,  2 SCR 639 [Prokofiew], which finally demystifies s. 4(6) of the Canada Evidence Act, RSC, 1985, c C-5 [CEA]. This section provides that the failure of an accused to testify “shall not be made the subject of comment by the judge or by counsel for the prosecution.” One reason for this prohibition is reflected in R v Noble,  1 SCR 874 [Noble], which held that the trier of fact cannot draw an adverse inference from the accused’s failure to testify and that this failure to testify cannot be treated as evidence of guilt.
But the rationale in Noble has not stopped trial judges from applying a literal interpretation to s. 4(6)—that trial judges cannot make any comment whatsoever on the accused’s silence, even when the jury may draw the impermissible inference. While Prokofiew is a 5-4 split decision, the majority endorsed the dissent’s call to replace this literal approach with a more purposive one. The SCC held that s. 4(6) does not prohibit a trial judge from affirming the accused’s right to silence, nor does it prohibit a trial judge from instructing the jury that the accused’s silence cannot be used as an indication of his or her guilt.
Mr. Prokofiew and Mr. Solty were tried together as co-accused for fraud. They created fake sales of heavy equipment to generate harmonized sales tax, which they did not give to the federal government. Mr. Solty testified and incriminated Mr. Prokofiew, who did not testify. Mr. Solty’s counsel commented on Mr. Prokofiew’s failure to testify in his closing address: “Did [Mr. Prokofiew] have something to hide or did he simply have no response that could help him since there is no point in trying to contradict the truth?”
Despite this invitation to convict Mr. Prokofiew on his failure to testify, the trial judge declined to give a remedial instruction to the jury. The trial judge argued that s. 4(6) of the CEA prevented him from giving an explicit remedial instruction relating to the accused’s failure to testify. Mr. Prokofiew was convicted. He appealed to the Ontario Court of Appeal (“ONCA”) on the grounds that the trial judge (i) failed to give a remedial instruction to the jury on his right to silence and (ii) failed to exclude inadmissible hearsay evidence. The hearsay evidence comprised some cheque stubs and a deposit book. The deposit book allegedly noted the code name “E” for Mr. Prokofiew to record cash payments to him from one of the businesses used in the fraud scheme.
The ONCA upheld the conviction, arguing that neither error was harmful enough to warrant a new trial.
Reinterpreting s. 4(6) of the CEA
The majority and dissent find common ground on the proper interpretation of s. 4(6) of the CEA. The dissenting reasons outline the rationale for why a purposive interpretation should be adopted and the majority explicitly adopts this reasoning.
Writing for the four dissenting justices, Justice Fish begins his analysis of s. 4(6) by examining the cases that call for a literal interpretation of this section: R v Crawford,  1 SCR 858 [Crawford] and Noble. In these cases, Justice Sopinka argues that s. 4(6) prohibits comments on the accused’s silence in the form of either a prejudicial comment or a jury instruction that no adverse inference can be drawn from the accused’s silence.
Justice Fish argues that the comments in Crawford and Noble on s. 4(6) were obiter dicta because they related to ancillary issues that were unnecessary to the result of those cases. Citing the SCC’s holding in R v Henry,  3 SCR 609 that obiter dicta can be set aside for appropriate reasons, Justice Fish argues that Justice Sopinka’s comments contradict several SCC cases that directly address s. 4(6).
First, in McConnell v The Queen,  SCR 802 the SCC upheld the validity of a trial judge’s instruction that the jury should not be influenced by the accused’s silence at trial. The SCC also noted that the purpose of s. 4(5) (which is now s. 4(6)) is to protect accused persons from having their right to silence being presented as “a cloak for their guilt.” Second, in Avon v The Queen,  SCR 650, the SCC upheld a similar jury instruction and rejected a submission that s. 4(5) rules out any trial judge comment at all on the accused’s silence. The last case that Justice Fish cites is R v Potvin,  1 SCR 525, which held that s. 4(5) must be interpreted in a purposive manner and that it prohibits only statements that are prejudicial to the accused.
Justice Fish argues that the obiter dicta comments in Noble in Crawford do not overrule the above judgments, which “explicitly defined and applied s. 4(6).” Further, he argues that the purposive interpretation of s. 4(6) used in these cases “compels the conclusion that trial judges may inform the jury of the accused’s right to silence…” and that they can instruct the jury that no adverse inference may be drawn from the accused’s silence at trial.
Justice Fish concludes his analysis of s. 4(6) by noting that an instruction to the jury should not be considered a prohibited “comment” under this section, and that such instructions are permitted.
Justice Moldaver explicitly endorses Justice Fish’s conclusion on the proper interpretation of s. 4(6). He also agrees with the dissent that the trial judge should have warned the jury to not draw the impermissible inference in this case. However, he disagrees with Justice Fish over whether a new trial is needed.
Justice Moldaver rules that the jury was not unclear about the law relating to an accused’s right to silence. This conclusion is based on the fact that the jury did not ask any questions about this issue even though the trial judge assured the jury that he (the trial judge) would instruct them on the law and answer any questions they had about the law.
Regarding the trial judge’s instructions to the jury, Justice Moldaver agrees with Justice Doherty of the ONCA that they were sufficient to overcome the risk that the jury would use the silence of the accused as evidence of guilt. He cites two reasons for this conclusion. First, the trial judge’s instructions clearly indicated that the Crown carried the burden of proof, that the jury could base its verdict only on the evidence, and that evidence constituted only the admitted exhibits and witness statements.
Second, Justice Moldaver endorses Justice Doherty’s argument that the trial judge’s instructions implicitly recognized that Mr. Prokofiew was under no obligation to call evidence: “Doherty J.A. observed that this jury instruction ‘tied the presumption of innocence into the burden of proof in a manner that spoke almost directly to the irrelevance of the appellant’s failure to testify’… I agree.” Justice Moldaver concludes that these instructions were adequate to ensure that the jury understood that they could not treat Mr. Prokofiew’s silence as evidence.
Regarding the trial judge’s improper admission of hearsay evidence, Justice Moldaver rules that this was a minor error that would not have influenced the final verdict. In addition to the witness testimony, there were many financial and business records linking Mr. Prokofiew to the fraud scheme. Also, the trial judge gave the jury a strong warning about the caution they should exercise in using the impugned evidence. Given this documentary evidence and the trial judge’s strong warning, Justice Moldaver holds that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, RSC, 1985, c C-46 [Criminal Code] should be applied to uphold the conviction. Section 686(1)(b)(iii) empowers a court of appeal to dismiss an appeal where the trial court has made a wrong decision in law as long as “no substantial wrong or miscarriage of justice has occurred.”
Therefore, Justice Moldaver holds that neither the lack of proper jury instruction nor the admission of hearsay evidence is a serious enough error to justify a new trial.
Justice Fish alternatively argues that the failure of the trial judge to properly instruct the jury is fatal to the verdict because it left the jury without any guidance on the correct legal interpretation of the accused’s silence: “They were left to determine for themselves, with no assistance from the judge, the evidentiary and legal effect of Mr. Prokofiew’s failure to testify at trial.” In contrast to Justice Moldaver, Justice Fish thinks that the trial judge’s instructions were not sufficient to ensure that Mr. Prokofiew’s silence would not be used as evidence against him. Without an explicit remedial instruction, Justice Fish states that the jury was “left free” to draw the impermissible inference.
Regarding the admission of the hearsay evidence, Justice Fish states that the s. 686(1)(b)(iii) proviso should not be applied because the Crown had not discharged its burden of proving that the trial judge’s errors of law were harmless or that the case against the accused was “overwhelming.” Justice Fish argues that the impugned documents were important to the conviction because the documents indicate fraud only when coupled with the testimony of witnesses who have been proven to be disreputable. These documents could have served to corroborate the testimony of witnesses who had questionable credibility, leading to a reasoning process supporting conviction: “Unaware of its erroneous admission, the trier of fact may rely on the impugned evidence to take a small but critical first step in a chain of deductions leading to a finding of guilt.”
Given the potential reliance that the jury may have placed on the impugned documents in their finding of guilt, Justice Fish states that the Crown did not discharge its onus of demonstrating that the admission of the documents was harmless. Therefore, Justice Fish reasons that the s. 686(1)(b)(iii) proviso should not be applied and that there should be a new trial.
Section 4(6) clarified
Despite differing in the result, the SCC has now clarified a key evidence law provision that has confused judges, lawyers, and students alike. This decision develops a reasonable approach to interpreting s. 4(6) of the CEA that is consistent with SCC jurisprudence on the provision.
This decision also empowers trial judges to more actively prevent counsel from using the right of the accused to not testify as a legal weapon, which is what occurred at trial in this case. This danger can now be explicitly and effectively neutralized through jury instructions that target the impermissible inference outlined in Noble.