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Evidence - Canada Evidence Act - Failure to Testify [s.4(6)]. R. v. Bzezi
In R. v. Bzezi (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal.
Here the court considers a CEA 4(6) ['Failure to testify'] issue:[32] The appellant objects that this instruction may have drawn unnecessary attention to his decision not to testify, and in so doing violated the rule in s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), that “[t]he failure of the person charged … to testify shall not be made the subject of comment by the judge.”
[33] I agree that it would have been better for the trial judge not to have framed this instruction as she did. However, even if her phrasing violated s. 4(6) of the CEA, I am satisfied that this error caused no substantial wrong or miscarriage of justice and that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, would apply. The trial judge had previously instructed the jurors that the appellant “does not have to present evidence” and “does not have to prove anything”. Unlike the situation in R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.), the trial judge did not expressly suggest that these instructions did not apply to the issue of the appellant’s after-the-fact conduct, or that the jury could or should draw any adverse inference against the appellant for not testifying. Importantly, defence counsel at trial also took no issue with this aspect of the jury charge, and Mr. Whitzman did not seriously contend that this error, standing alone, could not properly be the subject of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.
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