Co-Accused's Comment on the Failure of Person Charged to Testify (The R. v. Prokofiew Instruction)

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

9.7 Co-Accused's Comment on the Failure of Person Charged to Testify (The R. v. Prokofiew Instruction)

Note[62]

(November 2012)

[1] In his closing address (NOA2)’s counsel invited you to infer (NOA1)’s guilt from his/her failure to testify. This submission is wrong in law and you must ignore it. You cannot use (NOA1)’s silence at trial as evidence of his/her guilt.[63]

[2] Every accused person has the right to remain silent at trial. A person charged with an offence does not have to testify and has no obligation to prove anything. The burden of proof rests on the Crown from beginning to end.

[3] You cannot find (NOA1) guilty of an offence unless you are satisfied on the basis of all the evidence that his/her guilt has been proven beyond a reasonable doubt. In reaching your verdict, you must not use (NOA1)’s silent at trial as evidence of his/her guilt.

[62] This is a remedial instruction, based on R. v. Prokofiew, 2012 SCC 49, that should be used only where there are multiple accused and counsel for one of the accused has improperly invited the jury to infer the guilt of another accused from his or her failure to testify.

[63] The instruction above corrects an improper comment that has been made before the jury. Even if there has been no improper comment on a co-accused's failure to testify, the judge has a discretion to give a limiting instruction where there is a realistic concern that the jury may place evidential value on an accused's decision not to testify (see: Prokofiew, at paras. 3-11). In crafting the instruction, care must be taken not to undermine the defence of the testifying accused. A possible instruction would use paragraphs [2]-[3] above, but substitute the following for paragraph [1], although this may need to be modified in light of the particular circumstances of the case:

In closing submissions you have heard mention of the fact that one of the accused did not testify. Bear in mind, however, that (NOA1)'s silence at trial is not evidence of his/her guilt.