Testifying Part 1 – To Testify or Not to Testify

Original article: January 17, 2017 | By Sweta Tejpal | Reviewed and updated October 7, 2026

Should an accused person testify at a criminal trial? There is no answer that fits every case. The decision belongs to the accused, after informed discussion with defence counsel about the evidence, the legal issues and the risks. It is not determined simply by whether the case appears to be one person’s word against another’s.

The right not to testify

Section 11(c) of the Charter protects an accused from being compelled to testify in proceedings against them for the offence charged. The Crown bears the burden of proving guilt beyond a reasonable doubt; the accused does not have to prove innocence.

In R. v. Noble, [1997] 1 S.C.R. 874, the Supreme Court confirmed that an accused’s silence cannot supply missing proof of guilt. A strong prosecution case may nevertheless require careful consideration of how a defence can be presented. Remaining silent is not a guarantee of acquittal. Alibi evidence also involves particular rules, discussed below.

Consider the evidence, not a rule of thumb

Review the disclosure and the evidence heard at trial with counsel. What facts would your testimony address? Are other witnesses or admissible documents available? What questions could the Crown ask? How do your earlier statements, the charges and any disputed legal elements affect the decision? Multiple counts or co-accused may create additional evidentiary issues.

A credibility dispute does not automatically make testimony necessary. The court must apply reasonable doubt to the whole case, not simply pick its preferred story. See Part 3 — Believe What I Say. If you testify, you must give truthful evidence and may be cross-examined. Preparation must never involve inventing facts or concealing an honest lack of memory.

Previous convictions require an individual assessment

Section 12 of the Canada Evidence Act permits questioning a witness about previous convictions, subject to applicable limits and the court’s exclusion discretion. In R. v. Hussein, 2026 SCC 2, the Supreme Court clarified the balance between their value for assessing credibility and the risk of unfair prejudice. A similar conviction can increase the danger that it will be misused as evidence of guilt; similarity does not itself make a witness less truthful. Counsel should consider any application to limit their use.

An alibi does not automatically require your testimony

An alibi may be supported by other witnesses or records. Whether you should also testify depends on the case; it is not an automatic requirement. Discuss the evidence and disclosure strategy with counsel promptly.

R. v. Cleghorn, [1995] 3 S.C.R. 175 addresses sufficiently timely and detailed alibi notice to permit meaningful investigation. Inadequate notice can affect the weight of the alibi without automatically excluding it. Noble also recognizes a limited exception concerning assessment of alibi credibility when the accused does not testify. This is not a general licence to infer guilt from silence.

Earlier testimony may matter

Tell counsel about statements or testimony in any related civil, regulatory or criminal proceeding. In R. v. Nedelcu, 2012 SCC 59, non-incriminating compelled discovery testimony could be used to challenge credibility in the circumstances of that case. Section 13 of the Charter does not protect every earlier answer from every later use. Incriminating compelled testimony raises different protections; admissibility and purpose require careful legal analysis.

Make an informed decision with counsel

The Ontario Superior Court’s criminal-trial guide explains the defence stage and cross-examination. Before deciding, ask counsel what testimony could contribute, what the risks are and what alternatives exist. The choice should be informed and voluntary. No lawyer can promise that either choice will produce a particular verdict.

Continue the Testifying series

Related guidance

For advice about your circumstances, contact our office. This article provides general information, not legal advice.