SCC rejects appeal over accused’s failure to testify

In a 5-4 decision, the Supreme Court of Canada has ruled against an accused who argued that his decision not to testify unfairly led to his conviction.

In R. v. Prokofiew, the top court dismissed Ewaryst Prokofiew’s appeal but provided majority and dissenting reasons.

Supreme Court Justice Morris Fish’s reasons became the dissenting decision after one of the judges switched sides to agree with Justice Michael Moldaver. That side then became the majority.

Moldaver agreed with much of Fish’s analysis but not with his decision to allow the appeal and grant a new trial.

Prokofiew and his co-accused Peter Solty were convicted of fraud and conspiracy to defraud the government of Canada of $3.25 million by manipulating the GST and HST system in the sale of non-existent heavy equipment.

At issue was whether Prokofiew was involved in the transactions and, if so, whether he knew they were fraudulent. At trial, Prokofiew exercised his right to silence by opting not to testify. Solty’s counsel implied to the jury that Prokofiew’s silence was evidence of his guilt. Prokofiew’s lawyer, Russell Silverstein, argued that the trial judge, Ontario Superior Court Justice David Corbett, should have instructed the jury not to use Prokofiew’s silence as an indication of his guilt and that failing to do so violated his right to a fair trial.

Corbett ruled that s. 4(6) of the Canada Evidence Act prohibited him from charging the jury on this issue.

In his reasons, Moldaver said that he was satisfied with Corbett’s instructions. “[W]hile I agree that an explicit remedial instruction from the trial judge would have been preferable — and would have been warranted in these circumstances — I am satisfied that the instructions that were given in the instant case, when considered as a whole, were adequate,” he wrote.

“I am confident that the jury would have understood, in the context of the entirety of the instructions, that the Crown could prove Mr. Prokofiew’s guilt only on the evidence and, as Mr. Prokofiew’s silence at trial did not constitute evidence, it could not be used to prove his guilt.”

However, Fish argued there was a “gap” in the judge’s charge. “Here, the jurors were faced with conflicting comments by counsel that complicated — rather than complemented — the ‘gap’ in the judge’s charge. 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,” he wrote.

“We have no basis for supposing that the jury understood, in the absence of an explicit instruction by the judge, which counsel had stated the law correctly. The jury had no informed reason to believe one lawyer rather than the other. The guiding hand of the trial judge was essential — and absent.”

Fish referenced the Supreme Court’s 1997 decision in R. v. Noble that recognized that the right to trial silence must include the right not to have it used as evidence of guilt.

“Trial judges must take care to ensure that the right to silence becomes neither a snare nor a delusion,” wrote Fish.

“To this end, whenever there is a ‘significant risk’ ? as the trial judge found in this case ? that the jury will otherwise treat the silence of the accused as evidence of guilt, an appropriate remedial direction ought to be given to the jury.”

Moldaver and Fish also both agreed that Corbett was wrong to assume that s. 4(6) of the Canada Evidence Act prohibited him from making any reference to Prokofiew’s failure to testify.

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