The constitutional right to silence is a defining feature of the type of society that we live in. Individuals in Canada do not live in constant fear of being forced to provide information to the state. In the context of a criminal investigation, an individual has the freedom to choose whether to talk to the police.

A Crown Attorney is prohibited, as a general rule, from cross-examining you on the fact that you did not provide any information to the state in advance of your trial.

Your pre-trial silence does not constitute evidence of guilt or make you less worthy of belief when you testify at trial.

The Crown may cross the line during the cross-examination of an accused with some variation of the following line of questioning:

You didn’t say anything to the police when you were arrested?

The police confronted you with a false allegation and you didn’t speak up?

This is first time that you have provided an account of your actions?

By pursuing this line of questioning the Crown is inferring to the jury that the accused has done something improper and that there is a positive duty upon the accused to talk to the police prior to trial. It suggests that the accused’s credibility is suspect on the sole basis that the accused has exercised his right to silence. It also suggests that an accused’s pre-trial silence is itself evidence of guilt.

When articulating an objection, counsel may want to draw upon the following comments from Justice Abella, speaking for a unanimous Supreme Court of Canada, in R. v. Turcotte, [2005] 2 S.C.R. 519, beginning at para. 44:

It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused's silence could not be used as evidence of guilt:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]

Defence counsel must be ready to object when the Crown elicits evidence of an accused’s pre-trial silence. The default is that such a line of questioning is impermissible and potentially prejudicial to an accused’s right to a fair trial.

A trial judge must intervene and compel the Crown to articulate what, if any, case specific factors, above and beyond the mere exercise of the constitutional right, serve to provide legitimacy to the proposed line of questioning.

Other considerations:

-       In exceptional circumstances a Crown may elicit evidence of an accused’s pre-trial silence. As stated by Justice Abella in Turcotte, supra, beginning at para. 47:

Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers, at p. 1318, if "the Crown can establish a real relevance and a proper basis", evidence of silence can be admitted with an appropriate warning to the jury…

…Evidence of silence may... be admissible when the defence raises an issue that renders the accused's silence relevant. Examples include circumstances where the defence seeks to emphasize the accused's cooperation with the authorities (R. v. Lavallee, [1980] O.J. No. 540 (QL) (C.A.)); where the accused testified that he had denied the charges against him at the time he was arrested (R. v. Ouellette (1997), 200 A.R. 363 (C.A.)); or where silence is relevant to the defence theory of mistaken identity and a flawed police investigation (R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341 ).

Similarly, cases where the accused failed to disclose his or her alibi in a timely or adequate manner provide a well established exception to the prohibition on using pre-trial silence against an accused: R. v. Cleghorn, [1995] 3 S.C.R. 175. Silence might also be admissible if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated.

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