Kalina Tejpal Lawyers



Testifying Part 1 – To testify or not to testify

17 January, 2017

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina

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This is part 1 of a series of articles on testifying in court before a judge or jury. The comments apply equally when testifying in court before a judge or a judge with a jury.

So, you’ve reviewed the evidence against you with your lawyer and the question now becomes whether you should testify at your trial. Section 11(d) of our Charter of Rights guarantees that any person charged with an offence is presumed innocent until proven guilty beyond a reasonable doubt based on admissible, credible and reliable evidence. Section 11(c) of the Charter states that an accused person cannot be compelled to testify at their trial. There may be instances, however, where it is prudent to do so. Some factors that go into the decision process are:

  1. Where the entire issue is one of credibility, your word against someone else, it will usually be in your interest to testify. The Supreme Court of Canada’s decision in R. v. W.(D.), [1991] 1 SCR 742 is instructive on this point. This is discussed further in our blog here.
  2. A criminal record may diminish your credibility, particularly if it involves similar offences or crimes of dishonesty.
  3. If you are unlikely to be a believable witness or likely to admit guilt to the offence, it is probably a better decision that you remain silent because your silence cannot be used as an inference of guilt. This was affirmed by the Supreme Court of Canada in R. v. Noble, [1997] 1 SCR 874 
  4. Similarly, the prosecutor is not entitled to use your right not to testify as a factor against you. See R. v. Biladeau, 2008 ONCA 833
  5. If your version of events will not hold up under cross-examination because your version of events changes, that may be another reason for you not to testify. However, if you are resolute in your innocence and the complainant’s provides strong credible evidence, it is probably in your best interest to testify.
  6. An alibi will almost always result in you having to testify. Note that alibi evidence must be provided to the prosecution in advance so that they can conduct their own investigation in which to cross-examine you on.
  7. In a case involving multiple complainants, it may be desirablet to either sever the counts or not testify if doing so would be prejudicial. See for example R. v. Merriman-Johnson, 2015 MBQB 54
  8. If you have testified in a prior similar proceeding, such a civil suit, for the same incident, you will need to weigh how that might effect your credibility. R. v. Nedelcu, [2012] 3 SCR 311

The decision of whether or not to testify is always your decision to make. Only hindsight, after the trial ends will tell you whether your decision was the correct one. Our experience and expertise as your lawyers will arm you with the foresight that you need to make the correct decision before trial. We can be reached at mail@lawyer4u.ca or (416) 900-6999.

Tags: criminal defence, information

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