The protection against self-incrimination has been described by the Supreme Court of Canada as the "single most important" organizing principle of our criminal justice system. It is a principle of fundamental justice. A number of Charter sections work together to protect this fundamental right. Section 13 plays a key role within the Charter of protecting the principle against testimonial self-incrimination. Sections 11(c) and (d) (non-compellability and presumption of innocence) prohibit the state from directly compelling an accused against himself. The purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate themselves.
On the face of it s. 13 appears to provide complete protection against testimonial self-incrimination:
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
However, the Canadian approach to the use of prior testimony and s. 13 protection has been rather confusing and unsatisfactory. Distinctions have been drawn between the use of prior testimony for impeachment purposes versus incrimination.1 Distinctions have been drawn between the use of innocuous evidence and incriminating evidence.2 Debates occurred about whether the incriminating nature of the evidence must be evaluated in the context in which it was given or at the time it is utilized for cross-examination. Confusion existed whether compulsion was a triggering factor for the application of s. 13.
Our American friends have made things a lot simpler for themselves. In the United Sates their section 5 protection ("taking the fifth") means having the right to never be compelled to give answers that may tend to incriminate one self. Canada has chosen a more nuanced approach with corresponding complications.
It was not always so complicated in Canada. At common law there existed a privilege against self-incrimination such that one could not be compelled to give answers that could incriminate them. However, this common law rule was abrogated when s. 5 of the Canada Evidence Act was enacted. Section 13 of the Charter is the constitutional embodiment of s. 5 of the Canada Evidence Act.
The 2005 Supreme Court of Canada decision in R. v. Henry3attempted to inject some clarity into the application of s. 13. That decision focussed on compulsion. The application of s. 13 was simplified. The rule became that where an accused has been compelled to testify on a prior occasion, the accused was afforded s. 13 protection, including the use of the prior statement for impeachment purposes. The court eliminated the historical distinction between the use of prior statements for impeachment versus incrimination.
In the most recent Supreme Court case on s. 13, R. v. Nedelcu, the Crown has asked the court to turn the clock back and re-enter the more confusing pre-Henry world. The Crown's argument is as follows:
"... it is the undoing of this distinction between impeachment and incrimination that has provided the opportunity to accused .... To pursue unjustified acquittals by tailoring their evidence with impunity, secure in the knowledge that the trier of fact will never know."
The Crown further argued that a person who gives inconsistent evidence under oath should be confronted with that evidence so that a trier if fact can make an informed and accurate assessment of credibility. The Crown is not satisfied that, unlike the U.S. citizen, a Canadian citizen cannot refuse to be compelled to provide incriminating evidence. They want to be able to utilize the compelled evidence to impeach an accused. They want to neutralize s. 13 of the Charter.
We have yet to hear from the Supreme Court on Nedelcu, but it is hoped that they avoid the temptation presented by the Crown. Rather, it is clearly preferable that the Court stays true to their recent decision in Henry. This approach is consistent with the plain meaning of s. 13. It has the benefit of great clarity (prior compelled statements of an accused are inadmissible for any purpose). It is a more principled approach and avoids further erosion of the right against self-incrimination. A right that has already suffered from the passage of s. 5 of the Canada Evidence Act. To turn the clock back and re-open the debate over the use of prior statements for impeachment versus incrimination and the risks associated with that approach would be difficult to accept.
The Law Before Henry (Dubois, Mannion, Kuldip and Noel)
Because in the Nedelcu matter the Crown has asked the Supreme Court to turn back the clock and reverse themselves it is necessary to understand the state of the law prior to the Henry decision. It is instructive of the confusion that can be avoided by refusing to over-rule Henry.
In R. v. Dubois4the Supreme Court addressed whether at a retrial the Crown can adduce as evidence-in-chief the testimony given voluntarily by an accused at the first trial. The Court concluded that the reference in s. 13 to "other proceedings" includes a retrial on the same indictment. Further, it was held that s. 13, in conjunction with ss. 11(c) and (d) (non-compellability and presumption of innocence), applies to an accused testifying (voluntarily) in his own defence. The Court held that to allow the Crown to use, as part of its case, the accused's previous testimony would in effect allow the Crown to do indirectly what it cannot do directly, to compel the accused to testify. It would permit an indirect violation of the right of the accused to be presumed innocent and remain silent until proven guilty by the Crown, as guaranteed by s. 11(d) of the Charter. The use of the prior voluntary evidence as part of the Crown's case "in-chief" was reasoned to be compelled in the circumstances. Thus, s. 13 prohibited such a use of the prior voluntary evidence.5
In R. v. Mannion6the Crown attempted to use prior inconsistent statements for incriminating purposes in the cross-examination of an accused at a retrial. The initial evidence to be used for cross-examination was given voluntarily as part of the defence. The Court held that the cross-examination was improper.7 As commented on in the Henry decision, the focus of the Mannion decision was on the purpose of the cross-examination (incrimination), rather than on the purpose of s. 13 (protection against compelled self-incrimination).
In R. v. Kuldip8, the Supreme Court settled on a middle ground refining Mannion. This case again concerned the use to be made of previous evidence (given voluntarily) at a retrial. The Supreme Court allowed for cross-examination on the prior inconsistent statement for impeachment purposes.9 The Court commented as follows:
An interpretation of s. 13 which insulates such an accused from having previous inconsistent statements put to him/her on cross-examination where the only purpose of doing so is to challenge that accused's credibility, would, in my view, "stack the deck" too highly in favour of the accused.
The Court drew a distinction between cross-examination to incriminate (as in Mannion) and to impeach. As explained in Henry, the Court in Kuldip reasoned that a successful impeachment would do no more than nullify the accused's testimony. In other words, the Crown could not obtain a conviction except on the basis of other evidence.
The Court in Henry described the transition from Mannion to Kuldip as follows:
Kuldip thus qualified Mannion. If the prior testimony is used at the retrial to incriminate, Mannion says s. 13 is violated. If the prior testimony is used to impeach credibility, and thereby to nullify the accused's retrial testimony, Kuldip says s. 13 permits it.10
In the next Supreme Court decision of relevance, R. v. Noël,11the accused had been called by the Crown to testify at his brother's trial for the very same murder. Later at his own trial, Noël's compelled evidence from his brother's trial was used against him. As described by the Supreme Court, Noël was a classic example of prosecutorial abuse of the quid pro quo concept behind s. 13 of the Charter.
Historically the common law would have protected Noël by allowing him to refuse to answer the Crown's questions that tended to show his guilt. However, he was compelled by s. 5(2) of the Canada Evidence Act to answer incriminating questions.
The Court held that such cross-examination using previously compelled evidence was forbidden given its incriminating nature. The Court clarified that the prior compelled evidence could not be tendered even for the limited purpose of testing credibility, unless the trial judge was satisfied that there was no realistic danger that the prior testimony could be used for incrimination.12 The court recognized the nuanced and dangerous distinction between the use of prior evidence for impeachment versus incrimination. Experience had demonstrated the difficulty of working with such distinctions. However, the door was left slightly open for the use of prior evidence so long as incrimination was not a realistic danger.13 That door was thankfully closed in Henry for the sake of clarity.
R. v. Henry
Until the Supreme Court decides Nedelcu, the 2005 decision of Henry14is the most current Supreme Court decision on the issue. In Henry, the Supreme Court focussed its analysis on the purpose of s. 13 of the Charter. The Court held that where the administration of justice compels a person to give evidence in a proceeding it offers, in return, the promise that the evidence will not be used to incriminate the witness. This is referred to as a constitutional quid pro quo.
This quid pro quo is best understood in light of the common law. It is grounded in the legislative abrogation of the right to silence in the face of potential incrimination. Historically there existed a privilege against self-incrimination such that one could not be compelled to give answers that could incriminate them. This was more akin to the current approach taken in the U.S. In Canada we have watered down the right against self-incrimination with the introduction of s. 5 of the Canada Evidence Act and s. 13 of the Charter. The right is watered down in the sense that one is forced to provide potentially incriminating evidence. The counter balance (quid pro quo) was the promise that although compelled to provide the evidence it would not be used to incriminate the witness. The problem with the pre-Henry law was that it was precious little protection when one could be compelled against themselves (strike one). Then they could be cross-examined on that compelled evidence (strike two). The justification was that it was only for impeachment and not incrimination (strike three). Given the rather arbitrary distinction between incrimination and impeachment15, the right against self-incrimination had eroded to the point of near elimination.
The Court in Henry changed that. It eliminated the confusing and precarious distinction between the use of prior evidence for compulsion as opposed to incrimination.16 Because of the historical erosion of the right against self-incrimination and the very purpose of s. 13, the focus was placed on compulsion. The answer seemed so simple. Where an accused had been compelled to testify on a prior occasion, that evidence could not be used for any purpose at the accused's subsequent trial, including for impeachment purposes.
Henry was a carefully considered departure from the historical s. 13 jurisprudence. As noted by an intervener in the Nedelcu case, Henry was met by universal academic congratulation as a "very welcome rationalization of the s. 13 protection against self-incrimination."17
R. v. Nedelcu
The Nedelcu case involves the Crown's desire to cross-examine on evidence given at a related civil discovery. The Ontario Court of Appeal ruled that the evidence given at the discovery was compelled and thus that the Crown was forbidden by s. 13 from using the evidence. (The Crown had characterized its desired use as being for incriminating purposes.)
The Crown has appealed the decision to the Supreme Court. The case was heard on March 16, 2012 and a decision has not yet been rendered.
The Crown in Nedelcu argued that the evidence at the civil discovery was not compelled because the accused had the option of not defending the civil claim. This is a clear attempt to get around Henry. If the prior evidence were not compelled then it can be used for cross-examination (for either incrimination or impeachment). However, the Crown further argued that Henry should be overturned. The Crown suggested that cross-examination on previously compelled statements should be allowed for impeaching the credibility of an accused. In other words, the Crown has asked the Court to return to the previous distinction between impeachment and incrimination.
In the Crown's Supreme Court of Canada factum in Nedelcu, the Crown argues that s. 13 of the Charter provides blanket immunity to an accused to lie in a civil discovery, thus precluding cross-examiners from resorting to this fundamental truth seeking technique. It was the undoing of the distinction between impeachment and incrimination that "provided the opportunity to accused .... to pursue unjustified acquittals by tailoring their evidence with impunity, secure in the knowledge that the trier of fact will never know." The Crown added that, "the Charter was never intended to extend constitutional protection to an accused to make a mockery of the oath in their trials."
The counter argument put forward by Nedelcu and the interveners was compelling. Henry being such a sound and recent decision should be upheld. There should be no use of prior compelled statements against an accused in a criminal trial. They argued that all of the issues raised by the Crown had been considered in Henry which had been decided only seven years earlier (and seemed to have finally gotten it right). There should be no further erosion of the right against self-incrimination. The quid pro quo issue was presented as a key component of the analysis. To respond to the Crown's argument that cross-examination for impeachment purposes was necessary in the interests of justice, the analysis of Arbour J. on the quid pro quo concept was relied upon as follows:
This quid pro quo under which witnesses lost their important common law right to refuse to incriminate themselves in exchange for a use immunity attached to their compelled answers to incriminating questions is of course not a form of contract with an individual witness but a rule of public law under which the erosion of the privilege against self-incrimination is compensated by appropriate safeguards. If one were to pursue a contract analogy, as my colleague Justice L'Heureux-Dubé suggests I do, the remedy for the "breach" is provided for in the "contract"; the witness may be prosecuted for perjury or for the offence of giving contradictory evidence. More appropriately, I would suggest, s. 5 is a rule of public law which contemplates the possibility of an untruthful witness and which provides the appropriate response to such an eventuality by withdrawing the protection to the explicit extent provided for in the section. In that sense at least the protection is not absolute.
In other words, the reasonable approach to the dilemma created by an accused who has given inconsistent evidence (the "breach") is not to over-turn the right against self-incrimination but to pursue a prosecution for perjury or for giving contradictory evidence.
Other Scenarios To Be Aware Of
Aside from the various testimonial scenarios considered above, there are a few other scenarios that defence counsel should be aware of that may or may not lead to future cross-examination on statements given by your clients:
- Evidence given at a pre-enquete hearing, not being compelled, can be used for cross-examination at trial.18
- Evidence of an accused as plaintiff from a related civil trial (an possibly the discovery
- process), not being compelled, could be used for cross-examination at trial.
- s. 13 does not apply to prevent the use of evidence given at a criminal trial in a subsequent professional disciplinary proceeding.19
- Accused's testimony on a voir dire at the same trial has been protected from use at the trial proper.20
Where evidence is gathered as a result of compelled testimony in another proceeding s. 7 of the Charter provides further protections beyond s. 13. Derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the compelled testimony of the witness ought generally to be excluded under s. 7 of the Charter at he witness' subsequent trial since its admission would tend to affect the fairness of the trial.21
Where the Supreme Court will land in Nedelcu is, of course, unknown. It would be unfortunate if an area of law that enforces the fundamental right against self-incrimination that has otherwise faced significant erosion is reversed after such a short period of welcome clarity. It would be refreshing if the Supreme Court of Canada provides support to what it has described as the "single most important" organizing principle of our criminal justice system.
As it stands today, the application of s. 13 is relatively clear. Where compelled, the evidence given cannot be used against that person at a criminal trial for any purpose. Section 13 of the Charter, however, is not available to an accused where evidence is given voluntarily. This includes evidence given as part of the defence. That evidence could later be used at a retrial if they choose to testify again at the retrial on the same indictment. The limitation that the Crown cannot introduce prior evidence at a retrial as part of its case in-chief remains intact.
1 R. v. Kuldip,  3S.C.R. 618
2 R. v. Noel,  3 S.C.R. 433
3 R. v. Henry,  3 S.C.R. 609
4 R. v. Dubois,  2 S.C.R. 350
5 The Dubois decision perhaps marked the high water mark for s. 13: the Court held that the phrase "A witness who testifies..." merely clarifies that the word "witness" includes a voluntary witness. The Court also reasoned that although s. 13 refers twice to the notion of incrimination, the evidence in issue need not be incriminating in the first proceeding in which it was given and in the second where the Crown attempts to use it. The purpose of the section clearly indicates that the incriminating nature of the evidence must be evaluated only in the second proceeding. Any evidence the Crown tenders as part of its case against the accused is, for the purpose of s. 13, incriminating evidence.
6 R. v. Mannion,  2 S.C.R. 272
7 In Henry, supra, this decision was overruled and such a cross-examination would be permitted today on the basis that the original evidence was voluntary and thus did not attract s.13 protection.
8 Supra at note 2.
9 Henry, supra, changed the analysis. Henry permits cross-examination for any purpose because the initial statement was voluntary. The Crown no longer needs to concern itself with limiting cross-examination to impeachment and it is open season for incrimination.
10 Henry, supra, at para 32; at para 35 the Court further elaborated on the confusing transition from Mannion to Kuldip as follows: Kuldip can be seen as an attempt by the Court to put the brakes on Mannion, but in its unwillingness to reconsider its reasoning in Mannion, the Court was required to resort to reliance on the sometimes difficult (arbitrary) distinction between the purposes of impeachment of credibility and incrimination. Although this distinction is well established in the law (cite omitted), its practicality in this particular context is frequently questioned.
11 Supra at note 2.
12 This distinction was elaborated upon: only prior evidence that was innocuous (not touching upon the circumstances of the alleged offence) could be used in cross-examination for impeachment purposes.
13 As an illustration the complexity of this position the Court had to describe that the danger of incrimination will vary with the nature of the prior evidence and the "circumstances of the case", including the efficacy of an adequate instruction to the jury.
14 Supra note 3.
15 See footnotes 6 and 7 above. Further, Arthur Martin, J.A. put it this way in R. v. Kuldip, (1988), 40 C.C.C. (3d) 11 (Ont.C.A.): "... where the prior evidence is used ostensibly to impeach the accused's credibility only, it nevertheless does assist the Crown in its case and, in a broad sense, may help to prove guilt. It is often difficult to draw a clear line between between cross-examination on the accused's prior testimony for the purpose of incriminating him and such cross-examination for the purpose of impeaching his credibility. If the court concludes on the basis of the accused's contradictory statements that he deliberately lied on a material matter, that lie could give rise to an inference of guilt."
16 Justice Binnie in Henry noted that the parties to the appeal viewed "with skepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination".
17 Intervener's Factum, Criminal Lawyers' Association; at para 3; See also para 27: "The (Henry) decision has been described by Prof. Stewart as a "very welcome rationalization" of the previous law governing s.13 cutting through "troubling distinctions" [between incrimination and impeachment]. The pre-Henry law was "too complex and impractical" to sustain itself. Professors Paciocco and Steusser laud Henry as an "intensely practical" decision which has the "considerable virtue of being realistic and clear". Prof. Sankoff correctly observes that what emerged from Henry was a "tighter, more principled version of s.13.""
18 R. v. Scully,  O.J. No. 2837 (Ct. Jus.)
19 Knutson v. Sask. Registered Nurses Assn.,  2 W,W.R. 327 (Sask.C.A.)
20 R. v. Tarafa (1989), 53 C.C.C. (3d) 472,  R.J.Q. 427 (S.C.); Query whether testifying at a voir dire would always be viewed as compelled.
21 R. v. S. (R.J.),  1 S.C.R. 451
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.