R v George-Nurse, 2018 ONCA 515
Where the Crown’s case is entirely circumstantial in relation to an element of the offence (or the all of them), what if anything can a trier of fact do with the fact that an accused has not testified.
Where a case is entirely circumstantial, an inference of guilt must only be drawn if it is the only reasonable inference: see R v Villaroman, 2016 SCC 33. When assessing if there is another reasonable inference, the lack of evidence from the accused permits the court to reject innocent inferences – the “failure to testify negates the alternative inference” [para 32].
Where there is a “strong case to answer” the court is entitled to “consider the appellant’s failure to testify in assessing whether an innocent inference was available: Noble, at para. 103” [@35].
The Fine Print
There was a dissent – the matter is likely headed to the SCC. In dissent Hourigan JA offered the following:
The fact that the appellant did not testify to offer a plausible alternative version of events is of no assistance to the Crown in this case. Appellate courts may refer to an accused’s silence as indicative of an absence of an exculpatory explanation when considering an unreasonable verdict argument on appeal. However, the accused’s failure to testify is generally relevant only in cases where the Crown has adduced a compelling body of evidence: R. v. Noble, 1997 CanLII 388 (SCC),  1 S.C.R. 874, at para. 103.
In R. v. LePage, 1995 CanLII 123 (SCC),  1 S.C.R. 654, at paras. 29-30, a majority of the Supreme Court of Canada endorsed the following statement from R. v. Johnson (1993), 1993 CanLII 3376 (ON CA), 12 O.R. (3d) 340 (C.A.): “No adverse inference can be drawn if there is no case to answer. A weak prosecution's case cannot be strengthened by the failure of the accused to testify.” See also R. v. Hay, 2009 ONCA 398 (CanLII), 249 O.A.C. 24, at para. 37; and R. v. Tremble, 2017 ONCA 671 (CanLII), 354 C.C.C. (3d) 27, at para. 98.
Thus, while the jurisprudence makes clear that the accused’s failure to testify may be taken into account in assessing whether there is an innocent inference available, it would make little sense to factor in that failure when reasonable innocent explanations are already apparent by looking at the gaps in the Crown’s case. In the case at bar, the evidence against the appellant that he had counselled the SUV driver to shoot at Mr. Foster was weak. It would have been foolhardy for any competent defence lawyer to advise a client to testify in these circumstances. There was simply no need to call evidence to support an alternative version of events.
In my view, there was a lacuna in the evidence such that no trier of fact acting reasonably could have concluded that there was no reasonable inference other than guilt. [@17-20]