Our clients will often ask me, “Mike, do I have to testify at my criminal trial? What do I need to do if I have to testify?” This is a very loaded question. First all, the right to remain silent in Canada includes the fact that you have no obligation to take the witness stand as an accused person at your criminal trial. In other words, the Crown has the burden of proving the case against you beyond a reasonable doubt, and that is their burden with no obligation on you to testify in your defence whatsoever. The only person who has the discretion to make the important decision whether to testify or not is you. It is your decision to make alone, but your lawyer will always give you legal advice about whether they think you should testify or not. Your lawyer is going to extensively prepare you to testify before your trial in every criminal case with rare exceptions (a good lawyer will at least). They are going to prepare you and grill you for hours so you will be 100% ready to effectively testify in your defence. At the end of the Crown’s case, the lawyer will make an assessment regarding whether they think you should testify or not based on the unique facts legal issues surrounding your case. How did the Crown do with their case? Is it a strong case against you or is it a weak case where there is already reasonable doubt and there is no need for you to take the witness stand? Is it somewhere in between and there is uncertainty about the issues and it may be better for you to error on the side of caution and testify to create and solidify reasonable doubt? Does your lawyer feel there is already reasonable doubt where you do not need to call any evidence in your defence and there is no need for you to testify? It is a very delicate and difficult decision requiring extensive analysis and only an experienced and capable criminal lawyer can recognize if there is enough reasonable doubt for you to avoid testifying. You do not want to make the wrong decision to not testify, especially if you have been very well prepared and your lawyer has properly minimized the risk of you performing poorly on the witness stand. In other words, both you and your lawyer are confident and know you are ready to go and you are certain you are going to do a good job. You have to be confident that by testifying you are going to create even more reasonable doubt and not hurt your chances of winning. Does your lawyer anticipate that your proposed testimony is going to maximize your chances of winning your trial or reduce same? That decision takes place at the end of the Crown’s case. In every case I do, I prepare my client to testify for many hours, with some rare exceptions. I will give you one. In some impaired driving trials, it your defense is based only on a pure technical defense where the police made an obvious and fundamental error, a lawyer does not have to prepare their client to testify as they already know that the client will not be taking the witness stand at their trial. In the majority of impaired driving trials, I call my clients to testify, but there are exceptions, and the “technical error” exception is one. In other words, there was a very technical mistake that the officer made which is clearly set out in the police reports and you anticipate the officer will make that mistake on the witness stand and you do not need to call your client to establish the mistake. You say to the judge, “Look, I am asking for a directed verdict, there is not enough evidence. Or in your final submissions to the Court you argue there is reasonable doubt because the obvious mistake of the police officer prevented the crown from proving an essential element of the impaired driving or over 80 BAC charge. The key decision whether to testify does not have to be made until the end of the Crown’s case, but in many cases right from the outset of a case, we know we have to call our client to testify. For example, In the vast majority of sexual assault cases, aggravated assault or simple assault cases, our clients need to testify to support or create reasonable doubt, unless the complainant did a terrible job on the witness stand and reasonable doubt is overwhelmingly clear. We are talking about consent in sexual assault cases. You are going to cross examine to establish the defence of consent and create reasonable doubt, but your client is the one who is going to bring it home to the Court by adding even more reasonable doubt if they have been properly prepared to testify. Have I ever not called my client in a sexual assault case? Yes. However, at the beginning of those rare cases, I anticipated my client would need to testify to win their case, but the complainant did so poorly on the witness stand and their credibility and reliability was damaged so badly on cross examination that we were able to win these cases without calling my client to testify. It is a difficult and complex judgment call which has to be made at the end of the crown’s case in every criminal trial. This happened quite a few of my trial over the years where the complainant simply fell apart on the witness stand and my decision to recommend to the client that they not testify was an easy one to make. In many other cases it is a very difficult decision to recommend not calling our clients to testify at trial even where we were able to successfully challenge the complainant and weaken their evidence during cross examination However, it is always the client’s decision to make based on their lawyer’s advice. At the end of the Crown’s case, if the evidence against your client is non-existent or very weak and does not establish the elements of the offence, there is a motion you can bring called asking for a “directed verdict” or making a “motion for non-suit: If a lawyer strategically thinks there is not enough evidence to prove an essential element of the charge or there is not enough evidence to even go to the trier of fact or it is at least a close call, the will ask the judge for a directed verdict which could lead to the case being thrown out by the judge. A directed verdict by a judge to throw out a criminal case in Canada at the end of the Crown’s case is a very low level test as follows: Is there some evidence upon which a judge or jury properly instructed in the law could convict? A lawyer who does not think that test has been met or at least where it is a close call will say to the judge, “Your Honour I am asking for directed verdict or a motion for non-suit.” The lawyer would make submissions why there should be a directed verdict dismissing the criminal charge(s) and the judge would then give their reasons whether the motion is successful. The strategic advantage and the trick of the trade here, is when the potential to obtain a directed verdict is in the “grey area “and close to the line, but it does not quite meet the test, I see a lot of judges give subtle hints that the defence lawyer does not need to call their client to testify as there is already a reasonable doubt and they do not intend to do a directed verdict. In other words, the judge implies in some fashion without directly saying so that they intend to dismiss the charges against your client if he or she does not testify. For example, a judge might say, “I do not agree that the motion for a direct verdict has merit and I am not ordering a directed verdict, but do you really want to call your witness, Mr. Kruse?” You can tell by the phrasing of the judge’s decision on the directed verdict, the inflection of their voice, body language, raised eyebrows etc. that it is clear signal that you do not need to call your client to testify and you have already won their case.
The judge simply does not want to sit through another day of testimony wasting valuable court time when they already know they are going to dismiss the charges against your client. Some judges will send you that signal, and a clever Defence counsel can pick up on those. However, it takes an experienced lawyer to recognize the phrasing and body language involved in these subtle signals and they also need to know their local judges to make this type of call. A mistaken read of ‘imagined’ signals from a judge in this regard, could have devastating consequences for your client.
So, the bottom line is no, you do not have to testify in a criminal case. You are allowed to exercise your right to remain silent when you are charged with a criminal offence, including at your trial. However, in many cases you are going to want to testify and need to testify, especially in support of a defence for sexual assault and violent crime cases. Conversely, in other cases you may not need to testify and your best chance of winning may be choosing not to testify. The only person who will be in a position to assist you in making that decision will be your lawyer at the end of the crown’s case. They will know whether you need to testify or not and advise you accordingly. However, the final decision whether to testify is ultimately your decision and is within your discretion only and not your lawyer,