Some observers of the criminal justice process are critical of the fact that an accused may not testify at his trial while a complainant will always be subject to cross-examination.

There are two fundamental reasons why you may not see an accused testify at his trial:

            1) The prosecution cannot call an accused as a witness; and

           2) The prosecution bears the burden of proving an allegation against an accused.

1) The Prosecution Cannot Call an Accused as a Witness

An accused has a constitutional right to silence and is not required to say anything at his trial. A Crown Attorney is constitutionally prohibited from calling an accused as a witness as part of the case for the prosecution.

An accused may choose to testify as part of the case of the Defence. However, if an accused chooses not to do so the Judge will not hold this against him during the deliberation process. An accused’s silence is not evidence of guilt.

2) The Prosecution Bears the Burden of Proof

The prosecution bears the burden of proving an allegation against an accused beyond a reasonable doubt.

The default position is that the accused is innocent. An accused does not have to prove anything.

Any serious difficulties with the case for the prosecution will normally result in a finding of ‘not guilty’ regardless of whether the Defence presents any evidence. For example, the Defence may be able to demonstrate through cross-examination of the prosecution's main witness that his testimony is so lacking in credibility (honesty) and/or reliability (accuracy) that it would be dangerous for the Judge to rely upon that testimony to support a criminal conviction.

The Bottom Line

A criminal trial is about one issue: Has the prosecution proven the allegation beyond a reasonable doubt?

This necessarily means that the spotlight in every case must shine on the credibility and reliability of a witness for the prosecution.

This also means that in many cases you may not see an accused take the stand.

Useful references:

·      Canadian Charter of Rights and Freedoms section 11:

Any person charged with an offence has the right…

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal…

·      R. v. M.B.P., [1994] S.C.J. No. 27 beginning at para. 36:

Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution…

...At trial, accused persons… (are) ….protected by a right to silence. Specifically, they cannot be compelled to testify....

 

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