The Six Minute Criminal Defence Lawyer 2012 - Protection Against Self-Incrimination - Update On Section 13 Of The Charter

Introduction

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...