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Criminal - Right to Silence
COMMENT
The 'right to silence' is not expressly spelt out in the Charter, but it is read into Charter s.7 ['life, liberty and security of the person'] and the common law.
MORE CASES
Part 2
. R. v. A.B.
In R. v. A.B. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "sexual assault, sexual interference, invitation to sexual touching, and assault with a weapon".
Here the court considered the limited adverse inferences that may be drawn from a defendant exercising their right to silence:[14] An accused’s right to silence in the face of police questioning is fundamental under the common law and has received “Charter benediction” under s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42. The choice to remain completely silent, or to impart some but not all information, can never be used as evidence of guilt: Turcotte, at paras. 44-46, 52.
[15] Such evidence can sparingly be used in cases where, for example, the defence raises an issue to which the accused’s silence is relevant, such as where the accused testifies that he had denied the charges against him at the time he was arrested, or where silence may be relevant to the defence theory of mistaken identity and a flawed police investigation: see Turcotte, at para. 49.
[16] Other exceptional use of pre-trial silence may arise, “if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated”: Turcotte, at para. 50.
[17] Evidence of silence can, in limited situations, be used to assess credibility: see, in respect of co-accused persons, R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858. In general, however, it is an error to draw an adverse inference about an accused’s credibility from his silence: R. v. G.L., 2009 ONCA 501, 250 O.A.C. 266, at para. 38; R. v. Palmer, 2008 ONCA 797, 181 C.R.R. (2d) 134, at para. 9.
[18] Crown counsel argues that this is not a right to silence case because the trial judge did not use the appellant’s silence during his police statement to infer guilt. Rather, the trial judge merely interpreted the appellant’s police statement as a whole and determined what the appellant’s denial meant in the context of the police questioning. Alternatively, Crown counsel argues that, if the court finds that the appellant’s right to silence is engaged, the trial judge’s use of the appellant’s silence is permissible because the evidence of the appellant’s silence is “bound up with the narrative or other evidence and cannot easily be extricated” and is thus admissible, per Turcotte, at para. 50.
[19] We disagree.
[20] It is clear from her reasons reproduced above that the trial judge accepted the trial Crown’s submission that, in denying one allegation, the appellant’s silence regarding the other allegations and the text amounted to admissions. The inference suggested by the Crown amounted to an impermissible inference of guilt from silence. That is especially so because the appellant asserted his right to silence more than once during the interview. The trial judge relied on these “tacit admissions” as foundational support for her findings of guilt against the appellant with respect to the charges for which he was convicted.
[21] The Crown’s reliance on G.L. is thus misplaced. G.L. directed triers of fact to consider what the accused did say holistically – “to make findings respecting statements made by an accused and their meaning … in context and on the basis of the statement read as a whole”: at para. 29. This direction is not an invitation to infer guilt from silence on some allegations merely because others were denied. As G.L. clarified, at para. 39: “The appellant had a constitutional right to remain silent during any part of the police interview. That right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely.”
[22] As such, the trial judge erred by using the appellant’s silence to infer guilt. A new trial is required. . R. v. Kipusi
In R. v. Kipusi (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions for "four counts of criminal harassment and one count of breach of release conditions".
Here the court considers the right to silence (and it's tactical factors), and it's relation to failures to disclose:[34] The decision to testify is one of the most significant decisions undertaken by an accused individual in a criminal case. An accused person enjoys the right to silence and cannot be compelled to testify. When an accused person chooses to waive the right to silence, and offer testimony, the accused is exposed to challenge by way of cross-examination. In order for a decision to testify to be informed, the accused must understand the case that he or she has to meet. That includes disclosure of evidence that might be used for impeachment purposes.
[35] For example, before making a decision to testify, an accused person is entitled to know whether his or her criminal record will be introduced under s. 12 of the CEA, or whether the trial judge will exercise a discretion to exclude all or some of the accused’s prior convictions. In R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, the Supreme Court stressed the importance of the accused having this information before deciding to testify. As summarized in the recent case of R. v. Hussein, 2026 SCC 2, at para. 50:In R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, this Court held that an accused is entitled to a ruling on their Corbett application at the close of the Crown’s case, before they decide whether to testify (para. 7). The extent to which an accused’s criminal record is admissible encompasses part of the case to be met by the accused. Knowledge of the case to be met is a principle of fundamental justice protected by s. 7 of the Charter (para. 6). [36] In Underwood, at para. 5, the court stressed that when an accused is deciding whether or not to testify, the accused “should know as much as possible about the consequences of that decision in advance of having to make it.” At para. 6, the court described the “case-to-meet” principle as a fundamental tenet of the criminal justice system, firmly rooted in the common law and an integral part of the principles of fundamental justice, which are protected by s. 7 of the Canadian Charter of Rights and Freedoms: Underwood, citing R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451. It is part of the broader principle against self-incrimination, which has its roots in the presumption of innocence and the power imbalance between the state and the individual: Underwood, at para. 6, citing Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, and R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 578.
[37] In a similar vein, an accused is entitled to know what, if any, bad character evidence might be in the possession of the Crown before deciding to testify. Where the Crown is in possession of bad character evidence, fairness dictates that the accused be aware that such evidence might be tendered if he or she puts character in issue: R. v. Hutter (1993), 1993 CanLII 8478 (ON CA), 16 O.R. (3d) 145 (C.A.), at pp. 153-54.
[38] In these instances, the question is not whether the accused knows, in the abstract, that the evidence exists. In the criminal record context, the accused likely knows what his or her prior convictions are. Similarly, the accused may be conscious of his or her prior acts of bad character. The pertinent question is whether the accused is aware of the risk that the evidence will be introduced against him or her at his or her trial.
[39] So too here, the question on the mistrial application was not whether the appellant was aware of the statements that he made to Dr. Gojer. He knew that he made certain statements to Dr. Gojer. The question was whether the appellant was aware that the Crown might introduce the statements he made to Dr. Gojer in an attack on the appellant’s credibility. The need for such disclosure was important here, given that Dr. Gojer’s report related to an issue that was not raised at the trial. The appellant did not advance an NCR defence, and therefore had no reason to expect that the Crown would lead evidence that he was not NCR. The subject matter of Dr. Gojer’s report was not, on its face, relevant to the material issues at trial.
[40] Additionally, the statements were themselves presumptively inadmissible as protected statements, as per the analysis set out above. This was another reason why neither the appellant nor his counsel would have contemplated that the Crown would rely on the Gojer Report, absent a voir dire to determine admissibility.
[41] In the result, when the appellant decided to testify, he did not know of the full range of potential consequences of that decision. He was not apprised of the case he had to meet, and the case that would be levelled against him if he took the witness stand.
[42] Thus, contrary to the trial judge’s finding, the failure to disclose the Crown’s intended use of the Gojer Report did have the potential to adversely impact on the fairness of the trial. By the time the Crown sought to introduce Dr. Gojer’s testimony, the appellant had already testified in-chief, a decision that could not be undone.
[43] It does not necessarily follow that a mistrial was the appropriate remedy. It is well settled that a mistrial is a drastic remedy, that is not to be granted lightly. It should be granted only as a last resort, where no remedy short of that relief will adequately redress the actual harm occasioned: R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. J.H., 2020 ONCA 165, at para. 61. It was open to the trial judge to consider a lesser remedy, such as the exclusion of Dr. Gojer’s evidence from the trial evidence, on the basis that its probative value was outweighed by its prejudicial effect.
[44] All of this is hypothetical, given that the trial judge found no actionable non-disclosure. Suffice to say, even if the non-disclosure, standing alone, did not call for a remedy at that stage of the process, the combined effect of the non-disclosure and the additional errors discussed above compels the conclusion that the appellant did not have a fair trial. The appellant was not aware that the Crown would call Dr. Gojer; Dr. Gojer’s testimony was not subject to a voir dire on admissibility; and Dr. Gojer’s testimony was introduced before the appellant was given an opportunity to admit to the statements in question. The appellant is, in my view, entitled to a new trial. . R. v. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
Here the court considers a 'right to silence' issue, here in an 'ineffective assistance of counsel' context:b. The Decision to Testify
[32] The decision whether to testify at trial rests on the same footing as the accused’s election rights. It, too, is a decision reserved for an accused person to make. Counsel cannot usurp or override that choice: Bharwani, at para. 58(3); R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 46-49. As with the election as to the mode of trial, an accused person is entitled to competent legal advice in order to properly make this critical decision. In K.K.M., Doherty J.A. said, at para. 91: “An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.” See also R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at paras. 75-76.
c. Prejudice
[33] Establishing these factual components is necessary but not sufficient for a successful IAC claim. The accused must also establish prejudice. As Zarnett J.A. explained in Zock, at para. 45:[A]s White makes clear, it is not enough that the appellant, through ineffective assistance of counsel, was deprived of the important right to elect the mode of trial. A new trial on the basis of ineffective assistance of counsel will only be ordered if the appellant also demonstrates that the loss of the right to elect gave rise to a miscarriage of justice: White, at para. 6. The appellant must establish a reasonable possibility that he would have acted differently if he had received effective assistance from trial counsel; in other words, he must establish a reasonable possibility that he would have elected trial by jury: White, at paras. 6-9. [Emphasis added.] [34] The prejudice requirement applies with equal weight to the right to testify. “The accused must, in most cases, demonstrate more than the loss of choice”: White, at para. 7. . R v Yizhak
In R v Yizhak (Ont CA, 2026) the Ontario Court of Appeal considers when a failure to adduce contrary evidence (though not by testifying) can "in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review". To me this comes very close to drawing a negative inference on exercising the right to silence, as the evidentiary circumstances involved were quite personal (ie. gun in bedroom of own apartment):[25] The appellant called no evidence. He provided no innocent explanation for the presence of a loaded, chambered handgun in his small, one-bedroom condominium. The absence of such an explanation in the face of a strong Crown circumstantial case supports the reasonableness of the trial judge’s conclusion on appellate review: R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570, at paras. 1-2; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 103.
[26] The objective evidence established his longstanding connection to and control over the unit. The firearm was readily accessible within that space.
[27] The trial judge considered and rejected the alternative theory advanced at trial.
[28] When the law governing circumstantial evidence is applied to the objective facts of this case, the conclusion that guilt was the only reasonable inference was well within the bounds of reasonableness. . R. v. Beljour
In R. v. Beljour (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against "convictions for possession of fentanyl for the purpose of trafficking, possession of the proceeds of crime, and obstruction of a peace officer".
Here the court considers the criminal right to silence, and the (prohibited) temptation of fact-finders to draw an adverse inference when a person exercises it:[15] Nor are we persuaded that the trial judge committed any of the other errors alleged. First, the trial judge’s reasons make it clear that she did not use the appellant’s silence to draw an inference of guilt. She relied on the Supreme Court’s decision in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 89, which addresses what use may be made of an accused’s silence at trial:Silence may indicate ... that there is no evidence to support speculative explanations of the Crown’s evidence offered by defence counsel …. If, however, there is a rational explanation which is consistent with innocence and which may raise a reasonable doubt, the silence of the accused cannot be used to remove that doubt. [16] While the appellant says we cannot know what use the trial judge made of the appellant’s decision to not testify, her reliance on Noble and explicit reference to the Crown’s burden of proof tells us what use she made of it and makes clear that she did not draw an adverse inference against the appellant. . R. v. M.Z.
In R. v. M.Z. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "two counts of sexual assault, and one count of forcible confinement".
The court considers 'right to silence' tactical decisions, here in an ineffective assistance of counsel context:(2) The Choice to Testify
[40] The appellant’s second complaint is that trial counsel failed to advise him of his right not to testify.
[41] Trial counsel must clearly inform the client that they may choose whether or not to testify. This, too, is a fundamental decision about the conduct of the defence: G.D.B., at para. 34.
[42] Effective representation by counsel includes advice as to whether or not to testify and a review of the advantages and disadvantages of testifying in language that the accused person understands: R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at paras. 32-33. Defence counsel are ethically bound to discuss the decision to testify and must obtain instructions from their clients about the client’s choice: Archer, at para. 139; G.D.B., at para. 34.
[43] A client cannot make an informed decision to testify unless they understand what is at stake: D.A., at para. 33. Counsel should document that discussion: D.A., at para. 33.
[44] In most cases, the accused must also demonstrate that there is a “reasonable possibility” the accused would have acted differently: White, at paras. 7 to 8; and Zock, at para. 61. This can be established by showing subjective prejudice.
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[51] The appellant has established the factual and performance components of his allegations of ineffective assistance. He has also met the prejudice component: since the accused was not advised of the advantages and disadvantages of testifying, this is a case where the circumstances raise sufficient concerns about trial fairness as to lead to a miscarriage of justice: G.D.B., at para. 34; White, at para. 7. Trial fairness was undermined here, resulting in a miscarriage of justice because trial counsel provided no advice or advice that was deficient such that the appellant was effectively precluded from making an informed choice about a fundamental decision affecting his defence: R. v. J.N.N., 2025 YKCA 11, at para. 61; R. v. Mehl, 2021 BCCA 264, at para. 145; K.K.M., at para. 91; Stark, at para. 20. . R. v. Darrington
In R. v. Darrington (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal.
Here the court points to an exception to the principle that exercising a right of silence cannot be used against you:[9] The appellant did not testify at trial. This court may therefore consider his silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal: R. v. Noble, [1997] 1 S.C.R. 864, at para 103; R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, at paras. 33 and 35, aff’d 2019 SCC 12, [2019] 1 S.C.R. 570. ... . R. v. Verma
In R. v. Verma (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for importing opium.
Here the court engages in an interesting consideration of the right to silence being used as a 'sword':(2) Crown counsel’s comments about the appellant’s exercise of his right to silence
[24] The appellant’s second ground of appeal is that the trial judge should have given a corrective instruction about comments Crown counsel made in his closing address touching on the appellant’s exercise of his right to silence. Specifically, Crown counsel had suggested that if the appellant’s testimony about having been duped by his uncle and his uncle’s relatives was true, his statements to the CBSA and the RCMP officers “were really lacking in detail”. Crown counsel explained that he was specifically referring to the appellant’s trial testimony that although he was afraid of his uncle, he gave the uncle’s phone number to the police because he trusted the police to “do something”. Crown counsel told the jury:Mr. Verma’s answer is that he trusted the police to do something about it. But if so, why not give the police like detail? They didn’t, he didn’t give the police any detail about what happened, about his uncle. What are the police going to do with his uncle’s phone number and nothing else? [25] The appellant places particular reliance on this court’s decision in R. v. Guillemette, 2022 ONCA 436, 162 O.R. (3d) 481. In that case, the accused testified that she had driven while intoxicated after leaving a bar out of necessity, because some men had attacked her when she went to her car to get her cell phone to call a taxi. Crown counsel at trial cross-examined her about her failure to immediately report the attack to the police, and at the conclusion of the case argued that if her trial testimony was true, “she would have said something” to the first officer who came to her home in response to a 911 call by the bartender. This court concluded, at para. 42: “Clearly, this was a prohibited purpose that transformed the right to silence into a sword.”
[26] In my view, the situation here is distinguishable in three main respects.
[27] First, unlike the situation in Guillemette, the Crown at trial did not argue that the appellant’s denial of knowledge of the drugs was unbelievable because he had asserted his right to silence and not made a full police statement. Rather, the Crown focused on the appellant’s explanation at trial that he gave the police his uncle’s phone number so that they would “do something” to protect him, and invited the jury to consider whether this explanation made sense when the appellant had not given the police any more information about his uncle. While the Crown’s reference to the appellant’s “lack of the detail” may have come uncomfortably close to the line, it was not directed at undermining the appellant’s exercise of his right to silence.
[28] Second, the trial judge gave the jury a strong caution about using the appellant’s exercise of his right to silence against him “in any way”, telling the jurors:You heard evidence that Mr. Verma said that he did not want to give a statement to the police. Persons who are arrested have no obligation to speak to the police or give a statement. A person charged with an offence has the absolute right to remain silent on or after arrest. The right to silence is a fundamental right in our criminal justice system, and it includes the right to choose when and how to exercise it.
The fact that Mr. Verma exercised his right to silence cannot be used in any way in your decision about whether he committed the offence charged. [Emphasis added.] The jury must be assumed to have followed this instruction. In contrast, Guillemette involved a judge-alone trial where the trial judge’s reasons “reflect[ed] an erroneous use” of the appellant’s exercise of her right to silence: Guillemette, at para. 61.
[29] Third, the appellant’s trial counsel did not ask for a corrective instruction in response to Crown counsel’s jury address, nor did he express any discontent with the trial judge’s instructions regarding the appellant’s right to silence. While not determinative, “[c]ounsel’s silence may be particularly significant where there are indications that it was a tactical decision”: Abdullahi, at para. 69. In this case, trial counsel might have reasonably thought that a corrective instruction would draw undue attention to the Crown’s comments, and that the trial judge’s general instruction that the appellant’s exercise of his right to silence could not be used “in any way” would be sufficient.
[30] Accordingly, I am not persuaded that the trial judge erred by not giving a corrective instruction that the appellant never asked for, and that his trial counsel may not have wanted. . R. v. Heath
In R. v. Heath (Ont CA, 2024) the Ontario Court of Appeal considers the 'right to silence':[43] It is helpful to commence with the impugned instruction. The trial judge told the jury that the appellant had a right to silence that was triggered upon arrest:[O]nce a person is detained that person has the right to make a free and meaningful choice about whether to speak or remain silent, and this right only becomes engaged after a person is detained. [44] Standing on its own, I agree with the appellant that this would be an incorrect statement of law. There is clearly a right to silence before detention: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 27. The right triggered upon detention is the right to counsel, and that right is essential so that detainees understand that their pre-existing right to silence continues post detention.
[45] Importantly, though, the trial judge’s instruction did not end there. He went on to contrast the post-detention environment with the pre-detention environment, within a border setting. Specifically, the trial judge told the jury that after detention, a person “does not have to speak to the CBSA or police officers. That person does not have to answer any questions.”
[46] Read in context, what the trial judge was doing here was informing the jury that in the special circumstances of border crossings, there is only a modified right to silence. Section 11(1) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), makes clear that an individual arriving in Canada “shall” present themselves to a border officer and “answer truthfully any questions asked by the officer in the performance of his or her duties”.
[47] The trial judge went on to contrast what happened after arrest in this case with what came before. The jury was reminded that immediately upon arrest, the appellant was cautioned by the arresting officer and then later by the RCMP officers when they arrived. The trial judge contrasted the post-arrest environment with what had come before and told the jury that “[p]rior to the time he was detained” anything the appellant said or did not say was evidence that could be used in considering the defence of duress.
[48] In the circumstances of this case, there was nothing wrong with this legal instruction. The appellant was entering Canada from abroad. Section 11(1) of the Customs Act applied and so the appellant was under a statutory duty to answer questions truthfully. Once he was arrested, that duty ended. Although the trial judge did not specifically frame his instruction in this way, in my view, all he was doing was informing the jury of the difference, in the airport context, between pre- and post-detention rights. . R. v. Daponte
In R. v. Daponte (Ont CA, 2023) the Court of Appeal considered whether the trial judge's treatment of evidence amounted to a negative inference from the accused exercising their right to silence:(3) The trial judge did not improperly use the fact that the appellants did not testify
[20] Although not pressed in oral argument, the appellants attack the trial judge’s observations that “[a]lthough the failure of the defendants to testify does not justify an inference of guilt, it does create an absence of an innocent explanation of inculpatory facts.” The appellants submit that the trial judge in effect used their failure to testify as a makeweight for the Crown in proving its case, contrary to the principles in R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 77-81. Specifically, the appellants argue it was wrong for the trial judge to consider their failure to testify as negating innocent explanations for inculpatory facts. There were other reasonable inferences available from the evidence and the lack of evidence, regardless of whether the appellants had testified.
[21] We see no merit to this submission. The trial judge did not use the appellants’ silence to draw an inference of guilt, or as a piece of inculpatory evidence. Rather, the trial judge found on the circumstantial evidence, viewed in totality, that he could reach no reasonable conclusion other than that the appellants had knowledge and control over the drugs and money in the drive shed. Trial judges are permitted to find that an accused’s silence “fails to provide any basis for concluding [innocence] once the uncontradicted evidence points to guilt beyond a reasonable doubt”: Noble, at para. 82. That is what the trial judge did here. . R. v. Guillemette
In R. v. Guillemette (Ont CA, 2022) the Court of Appeal considered whether a defendant's silence at trial can be used to infer guilt:The Cross-Examination: Using Silence as a Sword
[36] The right to silence exists at common law and is conferred by s. 7 of the Canadian Charter of Rights and Freedoms: see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 164. With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility: Turcotte, at paras. 48-50. Indeed, to do so would render the right to silence into an “illusory right”, converting the decision not to speak to the police into a sword from which an inference of guilt could be taken: Turcotte, at para. 44. In other words, taking guilt from silence has the effect of transforming the right into both a “snare and a delusion”: R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1316.
[37] Accordingly, leaving aside exceptions to the rule, such as an alibi defence, the prosecution cannot suggest that the accused’s silence prior to trial informs the veracity of the accused’s testimony at trial: see R. v. Poirier (2000), 2000 CanLII 3294 (ON CA), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 18. To do so would clearly turn the right to silence into a snare by placing the accused in an intolerable situation of having asserted a constitutional right to silence, only later to learn that an inference of guilt could be taken from the assertion of that right. . R. v. Bokhari
In R. v. Bokhari (Ont CA, 2018) the Court of Appeal discussed the implications of silence on a criminal defendant's guilt:[3] The testimonial silence of an accused cannot give rise to an inference of guilt: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 79-82. Even so, once “uncontradicted evidence points to guilt beyond a reasonable doubt”, the accused’s silence will sometimes mean that he has failed to “provide any basis for concluding otherwise”: Noble, at para. 82. See also: R. v. Ibrahim, 2014 ONCA 157, 318 O.A.C. 1, at para. 41.
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