The appellant appealed his aggravated assault conviction arising from a group attack in which the Crown relied on party liability under s. 21(1)(b) of the Criminal Code.
During deliberations, the jury asked when any accused had first told police that the complainant had grabbed a co-accused by the testicles, and the trial judge answered only that there was no evidence on that point.
The Court of Appeal held that, in the circumstances, the answer was inadequate because it failed to explain that the accused had no obligation to speak to police on arrest or testify at the preliminary hearing, and that no adverse inference could be drawn from silence.
The omission undermined the right to silence and may have materially affected the jury's assessment of the co-accused's defence, which in turn affected the appellant's conviction as a party.
The appeal was allowed, the conviction was set aside, and a new trial was ordered.
