Right to Silence

General Principles

It is an error of law to draw an adverse inference against the accused's for his pre-trial silence: R v CG, 2016 ONCA 316 at paras 6-7 

An accused person is entitled to remain silent and to hear the Crown’s case before deciding whether to give evidence or how to respond. A suggestion that the accused is giving his story for the first time at trial amounts to an attack on his right to silence. 


Absent evidence of recent fabrication, a Crown cannot allege that an accused person has tailored his evidence after receiving Crown disclosure or after hearing the Crown’s evidence at the preliminary inquiry or at trial, absent evidence of recent fabrication and there was nothing in the record to support recent fabrication: R v John, 2016 ONCA 615 at paras 60-61

Right to Disclosure

The “mere reasonable possibility” that discrepancies in a witnesses evidence contained within outstanding disclosure could have been used to impeach the credibility of witnesses “is all that is needed for it to be possible to hold that there was a reasonable possibility that the failure to disclose impaired the overall fairness of the trial:” R v Tossounian, 2017 ONCA 618 at para 30 [citations ommitted]