It is improper for a Crown Attorney to use a constitutional right against an accused at a criminal trial. Defence counsel must be vigilant to guard against Crown submissions that insinuate that an accused has done something wrong, or is less worthy of credit, for exercising a constitutional right.

For example, generally the Crown is prohibited from referring to the fact that an accused has access to the police investigative file prior to testifying. As a unanimous Court of Appeal stated in R. v. Gordon, [2012] O.J. No. 4059 at para. 6:

            Crown counsel…seemed to invite the jury at one point in his closing to draw an inference against the appellant's credibility because the appellant had the benefit of full disclosure and hearing the Crown's case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn. The trial judge made it crystal clear to the jury that they should disregard that submission and that the appellant, like all accused, was constitutionally entitled to disclosure and to know the case for the Crown before testifying. …

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