As discussed in a previous post, the Supreme Court of Canada, in Canada v. Craig, overruled one of its own precedents, on the basis that there were compelling reasons indicating that the precedent’s interpretation of a provision of the Income Tax Act was incorrect. This interpretation was part of the precedent’s ratio decidendi and not obiter. At the same time, the Supreme Court in Craig held that the lower courts were bound by this interpretation and were not at liberty to depart from it.

The Supreme Court’s approach to the binding nature of its own precedents, however, is less definitive when the statement at issue is obiter. As Justice Binnie wrote in a 2005 decision:

All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” … (R. v. Henry, para. 57)

This somewhat greater liberty that lower courts have to depart from obiter statements is illustrated by the Supreme Court’s decision in R. v. Prokofiew (which was released in October 2012, about two months after Craig). One of the issues in Prokofiew was whether section 4(6) of the Canada Evidence Act prohibits a trial judge, in his or her charge to the jury, from making any reference at all to an accused’s failure to testify at trial. Two prior statements by the Supreme Court on this issue, both of which were obiter, interpreted section 4(6) as establishing such a prohibition. Nonetheless, the Ontario Court of Appeal in Prokofiew held that these obiter statements should not be followed, and the Supreme Court in Prokofiew did not criticize the Court of Appeal for so holding. Prokofiew can thus be contrasted with Craig, in which the Supreme Court expressly criticized the Federal Court of Appeal for not following the precedent’s (non-obiter) interpretation of the tax provision.


Prokofiew and his co-accused, Solty, were charged with fraud and conspiracy to defraud the Government of Canada. At trial, Solty testified and contended that he had been duped into participating in the fraudulent scheme by Prokofiew. Prokofiew, however, did not testify. In his closing address to the jury, Solty’s counsel implied that Prokofiew’s silence indicated that Prokofiew had something to hide. The trial judge was concerned by these comments and proposed to direct the jury that they could not consider Prokofiew’s silence as evidence of guilt. After hearing submissions from counsel, however, the trial judge decided, based on section 4(6), not to give such a direction to the jury. Section 4(6) provides:

The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

In interpreting section 4(6), the trial judge relied on obiter statements in two Supreme Court decisions, R. v. Noble and R. v. Crawford. In Noble, Justice Sopinka wrote:

Section 4(6), whose validity is not at issue in the present case, prevents a trial judge from commenting on the silence of the accused. The trial judge is therefore prevented from instructing the jury on the impermissibility of using silence to take the case against the accused to one that proves guilt beyond a reasonable doubt. (para. 95; emphasis added)

Likewise, in Crawford, Justice Sopinka wrote:

[T]he matter has been complicated by the specific statutory provision in s. 4(6) of the Canada Evidence Act which forbids the trial judge and Crown counsel from commenting on the failure of the accused to testify. This encompasses both comment prejudicial to the accused, as well as a direction that the jury must not draw an unfavourable conclusion from the accused’s failure to testify. (para. 22; emphasis added)

The jury convicted both Prokofiew and Solty. Prokofiew (but not Solty) then appealed on a few grounds, including the trial judge’s interpretation of section 4(6).

The Ontario Court of Appeal’s Decision

Writing on behalf of a unanimous five-member panel, Doherty J.A. held that the interpretation of section 4(6) in Noble and Crawford should not be followed. In reaching this conclusion, Doherty J.A. began by noting that the above excerpts from those two cases did not form part of the ratio decidendi. The mere fact that the excerpts were obiter, however, did not end the analysis, as Doherty J.A. acknowledged:

Obiter dicta will move along a continuum. A legal pronouncement that is integral to the result or the analysis that underlies the determination of the matter in any particular case will be binding. Obiter that is incidental or collateral to that analysis should not be regarded as binding, although it will obviously remain persuasive.

Lower courts should be slow to characterize obiter dicta from the Supreme Court of Canada as non-binding. It is best to begin from the premise that all obiter from the Supreme Court of Canada should be followed, and to move away from that premise only where a reading of the relevant judgment provides a cogent reason for not applying that obiter. …(paras. 20-21)

Doherty J.A. then explained why the obiter in Noble and Crawford should be viewed as non-binding. Most importantly, non-obiter statements in decisions of the Supreme Court prior to Noble and Crawford had accepted that section 4(6) does not prohibit a trial judge from instructing a jury that it cannot use an accused’s failure to testify as evidence of guilt. In this regard, Doherty J.A. observed:

This court is, therefore, presented with a clear conflict between the obiter dicta in Crawford and Noble and the ratio decidendi of prior Supreme Court of Canada decisions. To treat the obiter as binding would be to disregard the ratio decidendi of the earlier cases. (para. 28)

In addition, Doherty J.A. noted that the obiter statements in Noble and Crawford played a “peripheral role” in the reasoning in those cases, and indeed that the ratio decidendi in Noble was at odds with those obiter statements. Noble considered the evidentiary significance of the failure of the accused to testify at trial, and the majority decision by Sopinka J. held that the right to silence and the presumption of innocence preclude the trier of fact from drawing any adverse evidentiary inference from the accused’s silence. Accordingly, Sopinka J.’s obiter interpretation of section 4(6) tended to undermine the main holding in Noble, as Doherty J.A. noted:

[T]he interpretation of s. 4(6) in [the earlier Supreme Court cases] promotes the effective exercise of the constitutional rights to silence and the presumption of innocence as recognized in Noble. …Ironically, it is the ratio decidendi of the earlier cases that fits more comfortably with the constitutional vision articulated in Noble. (para. 39)

Although Doherty J.A. was thus of the view that the trial judge was entitled to instruct the jury about Prokofiew’s silence, Doherty J.A. did not consider the trial judge’s failure to give this instruction as warranting a new trial. Doherty J.A. was satisfied that the jury charge that was given, taken as a whole, effectively communicated to the jury that the Crown could prove Prokofiew’s guilt based only on the evidence, and that Prokofiew’s silence could not be used to infer guilt. Doherty J.A. also held that the trial judge’s error in admitting certain hearsay evidence did not warrant a new trial. In the result, Prokofiew’s appeal was dismissed.

The Supreme Court of Canada’s Decision

Although the Supreme Court was split 5-4, both the majority and the minority accepted Doherty J.A.’s approach to the interpretation of section 4(6). Writing for the minority, Fish J. agreed that the above excerpts from Noble and Crawford were obiter and should not be viewed as binding, for the reasons expressed by Doherty J.A.:

Justice Doherty recognized that lower courts should presume that obiter dicta of the Supreme Court are binding upon them … And he then proceeded to explain, persuasively and with care, why that presumption was inapplicable in this instance.

In both cases, Justice Sopinka’s references to s. 4(6) merely formed part of his description of the legislative background in describing ancillary issues relating to an accused’s silence. His comments were brief and unnecessary to the result. Dicta of this sort may be set aside where, as in this instance, there are good reasons to do so … (paras. 55, 72)

Writing for the majority, Moldaver J. agreed with Fish J. that section 4(6) does not prohibit a trial judge from affirming an accused’s right to silence:

I do not fault the trial judge for concluding — wrongly but understandably — that he was prohibited by s. 4(6) of the CEA from making any reference at all to Mr. Prokofiew’s failure to testify. My colleague has addressed that matter and it should not pose a problem in future cases. (para. 26)

Moldaver J. and Fish J., however, disagreed as to whether a new trial should be ordered. Fish J. was of the view that the trial judge’s failure to instruct the jury with respect to Prokofiew’s silence warranted a new trial, as did the trial judge’s error in admitting the hearsay evidence. Moldaver J., though, agreed with Doherty J.A. that the jury charge, when considered as a whole, was adequate, and also that the verdict would not have been any different if the hearsay evidence had been excluded. In the result, Prokofiew’s appeal was, again, dismissed.

Potential Significance

Taken together, Craig and Prokofiew provide an interesting contrast as to when lower courts may depart from a precedent of the Supreme Court. Although the Courts of Appeal in each case had good reasons for departing from the precedent or precedents at issue, the Supreme Court in Craig emphatically stated that the Federal Court of Appeal should have followed the precedent, but the Supreme Court accepted in Prokofiew that the Ontario Court of Appeal was justified in not doing so. Prokofiew does not mention Craig, but the difference appears to lie in the distinction between obiter and non-obiter statements. Whereas statements of the Supreme Court that form part of the ratio decidendi must be followed, obiter statements should presumptively be followed unless there are cogent reasons not to do so.

Case Information

R. v. Prokofiew, 2012 SCC 49

Date Decided: October 12, 2012

SCC Docket: 33754