Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 SCR 350
Daniel Dubois Appellant;
and
Her Majesty The Queen Respondent.
1984: October 25; 1985: November 21.
Present: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ First trial taking place prior to proclamation of Charter ‑‑ Incriminating evidence given by accused at first trial not admissible against him at second trial ‑‑ Protection against self‑incrimination guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms.
Criminal law ‑‑ Evidence ‑‑ Admissibility ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ Accused's evidence at first trial not admissible against him at second trial ‑‑ Canadian Charter of Rights and Freedoms, s. 13.
Appellant was convicted by a jury of second degree murder but the Court of Appeal granted a new trial on grounds of misdirection to the jury. At the second trial, held after the proclamation of the Canadian Charter of Rights and Freedoms, the Crown introduced as evidence appellant's testimony given voluntarily at his first trial. Defence counsel objected arguing that it was contrary to s. 13 of the Charter which provided that "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...." The trial judge ruled that the protection against self‑incrimination guaranteed by s. 13 did not apply as the Charter came into force after appellant had testified in his first trial. Appellant was again convicted. His appeal, on the sole ground that his first trial testimony should have been excluded, was dismissed. The Court of Appeal held that the second trial was not "any other proceedings" within the meaning of the section and therefore appellant could not invoke s. 13 under these circumstances.
Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered.
Per Dickson C.J. and Estey, Chouinard, Lamer, Wilson and Le Dain JJ.: Section 13 of the Charter precludes the admission at the second trial of the evidence given by the appellant at his first trial. The purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d) ‑‑ the right of non‑compellability and the presumption of innocence ‑‑ is to protect individuals from being indirectly compelled to incriminate themselves. This protection inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him. The time at which the previous testimony is given is irrelevant. Thus, no issue of retrospectivity arises in this case since the attempt to use appellant's testimony occurred after the coming into force of the Charter.
The fact that s. 13 is framed in the present tense, does not preclude it from applying in a situation where the witness in question was the accused and when the testimony in issue had been given previously. The phrase "A witness who testifies..." merely clarifies that the word "witness" includes a voluntary witness.
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.
A retrial of the same offence falls within the meaning of the words "any other proceedings". The courts must interpret each section of the Charter in relation to the others. Here, 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 is estopped from doing directly by s. 11(c), i.e., to compel the accused to testify. It would also 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. Such a result should be avoided.
Finally, assuming that s. 613(1)(b)(iii) of the Criminal Code can apply to a Charter violation and to a remedy under s. 24, given the nature of the evidence, this would not be a proper case for applying the proviso.
Per McIntyre J., dissenting: Where a court of appeal quashes a conviction and orders a new trial, s. 13 of the Charter does not preclude the admission at the second trial of the evidence given by the accused at his first trial. A new trial cannot, on a fair reading of s. 13, be considered as another proceeding. The word "proceedings" in s. 13, means, in a criminal case, all judicial steps taken upon one charge to resolve and reach a final conclusion of the issue therein raised between the same party and the Crown. This would include the preliminary hearing, the trial, and an appeal and a new trial. Therefore, while s. 13 provides a wider protection against self‑incrimination than that provided by s. 5(2) of the Canada Evidence Act, the section does not apply to evidence voluntarily given at a different stage in the same proceedings.
Although appellant cannot be compelled to give evidence at his second trial, this protection, provided by s. 11(c) of the Charter, does not extend to bar the use in evidence of earlier voluntarily statements that he has made which are clearly relevant to the issues.
Cases Cited
By the majority
R. v. Brown (No. 2) (1963), 1963 CanLII 671 (SCC), 40 C.R. 105 (S.C.C.), rev'g (1963), 1963 CanLII 670 (NWT CA), 40 C.R. 90 (N.W.T.C.A.), distinguished; Piché v. The Queen, 1970 CanLII 182 (SCC), [1971] S.C.R. 23; R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909; Marcoux v. The Queen, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763, considered; R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303; R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 5 C.C.C. (3d) 97; Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152; Regina Public School District v. Gratton Separate School District (1915), 1915 CanLII 594 (SCC), 50 S.C.R. 589; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Carson (1983), 1983 CanLII 1812 (ON CA), 20 M.V.R. 54; R. v. Konechny, 1983 CanLII 282 (BC CA), [1984] 2 W.W.R. 481; Reference re Education Act of Ontario and Minority Language Education Rights (1984), 1984 CanLII 1832 (ON CA), 47 O.R. (2d) 1, referred to.
By the minority
R. v. Brown (No. 2) (1963), 1963 CanLII 671 (SCC), 40 C.R. 105 (S.C.C.), rev'g (1963), 1963 CanLII 670 (NWT CA), 40 C.R. 90 (N.W.T.C.A.); R. v. Sophonow (No. 1) (1983), 1983 CanLII 2935 (MB QB), 6 C.C.C. (3d) 394 (Man. Q.B.), approved (1984), 1984 CanLII 2912 (MB CA), 12 C.C.C. (3d) 272 (C.A.); R. v. Mannion (1983), 1983 CanLII 1180 (AB QB), 6 C.C.C. (3d) 161 (Alta. Q.B.), approved (1984), 1984 ABCA 87, 11 C.C.C. (3d) 503 (C.A.); R. v. Yakeleya (1985), 1985 CanLII 3478 (ON CA), 20 C.C.C. (3d) 193; Tass v. The King, 1946 CanLII 33 (SCC), [1947] S.C.R. 103; R. v. Coote (1873), L.R. 4 P.C. 599; R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909; R. v. Erdheim, [1896] 2 Q.B. 260; Eddy v. Stewart, 1932 CanLII 214 (SK CA), [1932] 3 W.W.R. 71; R. v. McGregor, [1967] 2 All E.R. 267; Klein v. Bell, 1955 CanLII 38 (SCC), [1955] S.C.R. 309; R. v. Wilson (1982), 1982 CanLII 3270 (ON SC), 67 C.C.C. (2d) 481.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 2, 5.
Canadian Charter of Rights and Freedoms, ss. 1, 11(c), (d), 13, 24.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 469, 613(1)(b)(iii).
Authors Cited
Black’s Law Dictionary, 5th ed., St. Paul, Minn., West Publishing Co., 1979 "proceeding".
Côté, P. A. The Interpretation of Legislation in Canada, Cowansville, Ed. Yvon Blais Inc., 1984.
Halsbury’s Laws of England, 4th ed., vol. 37, London, Butterworths, 1982.
Kaufman F. The Admissibility of Confessions, 3rd ed., Toronto, Carswells, 1979.
Phipson on Evidence, 13th ed. by J. H. Buzzard, R. May and M. N. Howard, London, Sweet & Maxwell, 1982.
Ratushny, E. "The Role of the Accused in the Criminal Process" in The Canadian Charter of Rights and Freedoms, W. Tarnopolsky and G.‑A. Beaudoin (eds.), Toronto, Carswells, 1982.
Ratushny, E. Self‑incrimination in the Canadian Criminal Process, Toronto, Carswells, 1979.
Wigmore on Evidence, vol. 8, rev. by J. T. McNaughton, Boston, Little, Brown and Co., 1961.
APPEAL from a judgment of the Alberta Court of Appeal (1984), 1984 ABCA 47, 11 C.C.C. (3d) 453, 9 C.R.R. 61, 39 C.R. (3d) 281, 31 Alta. L.R. (2d) 16, 8 D.L.R. (4th) 589, 51 A.R. 210, [1984] 3 W.W.R. 594, dismissing the accused's appeal from his conviction for murder. Appeal allowed and new trial ordered, McIntyre J. dissenting.
Peter Lamont, for the appellant.
Bruce Duncan, for the respondent.
The judgment of Dickson C.J. and Estey, Chouinard, Lamer, Wilson and Le Dain JJ. was delivered by
- Lamer J.‑‑When a new trial is ordered on the same charge or on an included offence by a court of appeal, can the Crown adduce as evidence‑in‑chief the testimony given by an accused at the former trial? That question was addressed by this Court prior to the coming into force of the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, as enacted by the Canada Act 1982, 1982 (U.K.), c. 11), in a different legal setting, in R. v. Brown (No. 2) (1963), 1963 CanLII 671 (SCC), 40 C.R. 105, and answered affirmatively. It now comes back to us because of s. 13 of the Charter.
The Facts
The appellant was charged in Alberta with second degree murder. At his trial before Rowbotham J. sitting with a jury, the appellant gave evidence in his defence, admitting that he had killed the deceased but also alleging certain circumstances of justification. The appellant did not invoke the protection of s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10. The appellant was convicted, but successfully appealed the conviction to the Alberta Court of Appeal and was granted a new trial on grounds of misdirection to the jury: (1982), 1982 ABCA 242, 69 C.C.C. (2d) 494. At the new trial, the Crown read in the appellant's testimony from the first trial over the objection of appellant's counsel, such objection based on s. 13 of the Charter. The appellant chose not to testify nor did he call any evidence. He was again convicted. He appealed again to the Alberta Court of Appeal on the sole ground that the trial judge erred in admitting into evidence, as part of the Crown's case, the testimony of the appellant from his former trial. The appeal was dismissed: (1984), 1984 ABCA 47, 11 C.C.C. (3d) 453, 9 C.R.R. 61, 39 C.R. (3d) 281, 31 Alta. L.R. (2d) 16, 8 D.L.R. (4th) 589, 51 A.R. 210, [1984] 3 W.W.R. 594. The accused now comes to this Court.
The Charter had not come into force at the time the appellant testified in his first trial but was in force when Crown counsel adduced his evidence‑in‑chief in the second trial.
The Statutes
Canadian Charter of Rights and Freedoms
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.
Chacun a droit à ce qu'aucun témoignage incriminant qu'il donne ne soit utilisé pour l'incriminer dans d'autres procédures, sauf lors de poursuites pour parjure ou pour témoignages contradictoires.
Canada Evidence Act
- (1) No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.
The Judgments
Alberta Court of Queen’s Bench
Moshansky J. admitted into evidence the appellant's previous testimony, holding that s. 13 of the Charter did not apply as the Charter did not come into force until after the appellant had testified in his first trial: (1983), 1983 CanLII 1178 (AB QB), 5 C.C.C. (3d) 273, 6 C.R.R. 125. He stated that since s. 13 is framed in the present tense, it is intended to apply to a witness who testifies rather than to one who has testified on some previous occasion.
The trial judge then went on to say that regardless of the retrospectivity question, s. 13 would still not apply as the section is intended to apply to a witness rather than to an accused. He did not find it necessary to deal with the argument concerning the meaning of the words "other proceedings" in s. 13.
Alberta Court of Appeal
The court ruled that the evidence was admissible, although it disagreed with the trial judge's finding that s. 13 did not apply because of the retrospectivity argument. The court held that s. 13 did apply in a situation where the witness in question was the accused and when the testimony in question had been given previously. The court stated that s. 13 in effect sets forth "the right to have the testimony not used". However, the court ruled that the second trial is not "any other proceedings" and therefore the accused could not invoke s. 13 under these circumstances.
Respondent Crown takes the view that s. 13 could not be invoked by the accused at his second trial because it applied only to testimony given after the advent of the Charter, that in any event the evidence in this case when given was not "incriminating", and furthermore, that a retrial is not "any other proceedings". Finally, the respondent invokes, as a subsidiary argument, s. 613(1)(b)(iii) of the Criminal Code.
As I am of the view that this appeal should succeed, I will address all of the issues raised by the respondent in support of the Court of Appeal's conclusion to dismiss the accused's appeal.
Nature and Purpose of s. 13
A plain reading of s. 13 indicates that the guarantee it provides is directed against self‑incrimination through the use of one's previous testimony. It is a very specific form of protection against self‑incrimination and must therefore be viewed in the light of two closely related rights, the right of non‑compellability and the presumption of innocence, set forth in s. 11(c) and (d) of the Charter:
Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
- Section 11(d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence. As Laskin J. (as he then was) wrote in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, at p. 317:
The "right to be presumed innocent" ...is, in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted. In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S. (1895), 156 U.S. 432 at 452.
- The Crown's "burden of establishing guilt" and the "right of silence", i.e., the concept of a "case to meet", which are essential elements of the presumption of innocence, also underlie the non‑compellability right. For, as Professor Ratushny has written,
In many ways, it is the principle of a case to meet' which is the real underlying protection which the non‑compellability' rule seeks to promote. The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence. However, even where a `case to meet' has been presented, the burden of proof remains upon the Crown to the end.
- ("The Role of the Accused in the Criminal Process", in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms (1982), at pp. 358‑59.)
The accused need only respond once. The Crown must present its evidence at an open trial. The accused is entitled to test and to attack it. If it does not reach a certain standard, the accused is entitled to an acquittal. If it does reach that standard, then and only then is the accused required to respond or to stand convicted.
(Self‑incrimination in the Canadian Criminal Process (1979), at p. 180.)
As such, the concept of the "case to meet" is common to ss. 11(c), (d) and 13. In the context of ss. 11(c) and 13, it means specifically that the accused enjoys "the initial benefit of a right of silence" (R. v. Appleby, supra) and its corollary, protection against self‑incrimination. Section 13, like s. 11(c), is a recognition of the principle that,
...the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself.
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), para. 2251, at p. 318.)
Hence, the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. It guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings.
The consequences which flow from the nature and purpose of the right enunciated in s. 13 touch upon the following issues:
Whether the section applies to a witness who testifies or to a person who has testified on a previous occasion, that is, the determination of the beneficiary of the right;
the interpretation of the terms "incriminating evidence" and "used to incriminate";
the interpretation of the terms "any other proceedings".
For reasons hereinafter stated, while s. 11(c) and (d) both have a bearing on the determination of these three issues, s. 11(c) (non‑compellability) is determinative as regards the first two, whilst s. 11(d) (the burden of proof and the concept of the case to meet) is determinative of the third question, the meaning of "any other proceedings".
I shall address each in turn.
The Beneficiary of the Right
In my view, s. 13 is not being given in this case a retrospective effect. As I have indicated earlier, s. 13 guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings. That right came into force on April 17, 1982, the date of the coming into force of the Charter. However, given the nature and purpose of the right, it inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him or her. The time at which the previous testimony was given is irrelevant for the purpose of determining who may or may not claim the benefit of s. 13. As of April 17, 1982, all persons acquired the right not to have evidence previously given used to incriminate them. The protection accorded by the right is related not to the moment the testimony is given, but to the moment at which an attempt is made to use that evidence in an incriminating fashion.
The fact of having given previous testimony is no more than a requisite for the operation of s. 13. To quote Martin J.A. in R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 5 C.C.C. (3d) 97 at pp. 102‑03:
An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: see R. v. Johnston (1977), 1977 CanLII 1904 (NWT CA), 34 C.C.C. (2d) 325, [1977] 2 W.W.R. 613, 37 C.R.N.S. 234; affirmed 1978 CanLII 187 (SCC), [1978] 2 S.C.R. 391, 39 C.C.C. (2d) 479n, [1978] 2 W.W.R. 478 (S.C.C.); R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255 (Ont. C.A.).
As section 13 guarantees the right of a person against self‑incrimination, rather than the rights of a witness giving testimony, it inures to an individual only at the moment an attempt is made to use previous testimony to incriminate its author. Since in this case the attempt to use Dubois' previous testimony occurred after the coming into force of the Charter, there arises here no issue of retrospectivity.
The Crown has argued that the right expressed in s. 13 accrues only to an individual who is a "witness", that the right is given "to an individual qua witness and not qua accused". The Crown seeks support for this position in the fact that the section speaks in the present tense. The protection, it is argued, is given to "a witness who testifies and not to a witness who has testified". That argument was answered in part by Kerans J.A. of the Alberta Court of Appeal in the present case reported at (1984), 1984 ABCA 47, 11 C.C.C. (3d) 453 where he stated at p. 455:
It is argued correctly for the Crown that, on the day on which the Charter came into force, the accused was a witness who had testified, and not a witness who was yet to testify. But the expression a witness who testifies' was inserted in the Charter in substitution of the draft words a witness...when compelled to testify' in order to remove doubt whether a technically voluntary witness, such as an accused, can assert the protection of the section. The words who testifies' merely clarify that witness' includes a voluntary witness: see the analysis by Grotsky J. in R. v. Staranchuk (1982), 1982 CanLII 2670 (SK QB), 3 C.C.C. (3d) 138, [1983] 2 W.W.R. 145, 45 C.B.R. (N.S.) 200 (overruled on other grounds 1983 CanLII 2402 (SK CA), 8 C.C.C. (3d) 150, 3 D.L.R. (4th) 574, [1983] 6 W.W.R. 729). I therefore accept the contention for the accused that the right to prevent incriminating use of previous testimony extends to all witnesses, and whenever they testify.
Section 13, unlike s. 5(2) of the Canada Evidence Act, does not require any objection on the part of the person giving the testimony, nor does it refer to any compulsion to answer. Indeed, as noted by Kerans J.A. in the passage quoted above, the "compulsion to answer" requirement, which was set forth in a previous draft of s. 13, was ultimately removed from the final version of the section. Thus, the legislative history of the provision indicates that " `witness' includes a voluntary witness".
Moreover, given the nature and purpose of the right, which is essentially protection against self‑incrimination, the issue of whether the testimony was compulsory or voluntary at the moment it was given is largely irrelevant. The focus of the right is on the second proceedings, the time at which the previous testimony is sought to be used, rather than the time at which it is given.
For these reasons, s. 13, in my view, applies as much to testimony voluntarily given by an accused as to testimony given by a witness under compulsion.
The Crown has relied upon the case of Marcoux v. The Queen, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763, in support of its position. In that case, Dickson J., (as he then was), speaking for the Court, stated that the privilege against self‑incrimination extended to the accused "qua witness and not qua accused". However, in that case Dickson J. was delineating the scope of the privilege in relation to a refusal by a suspect to participate in an identification line‑up and thus contrasting testimonial compulsion with other forms of compulsion. He stated, at pp. 768‑69:
The privilege, historically and comprehensively analyzed in 8 Wigmore on Evidence (McNaughton revision 1961) art. 2250, pp. 284 et seq., developed in revulsion from the system of interrogation practised in the old ecclesiastical courts and the Star Chamber, i.e. summoning a person, without giving him warning of the charge against him, and examining him on oath. The general rule evolved that no one was bound to answer any question if the answer would tend to expose him to a criminal charge. As applied to witnesses generally, the privilege must be expressly claimed by the witness when the question is put to him in the witness box, Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 5. As applied to an accused, the privilege is the right to stand mute. An accused cannot be asked, much less compelled, to enter the witness box or to answer incriminating questions. If he chooses to testify, the protective shield, of course, disappears. In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally ....
Marcoux thus stands for the proposition that the protection against self‑incrimination is not functionally operative at the pre‑trial stage of a police line‑up. It in no way shores up the argument advanced by the Crown.
My view, therefore, is that the protection of s. 13 operates at the second proceedings; consequently the time at which the previous testimony was given and the question of whether it was given voluntarily or under compulsion are irrelevant. I am strengthened in this view by a brief analysis of s. 5(2) of the Canada Evidence Act in relation to s. 13 of the Charter.
At common law, a witness had the privilege of refusing to answer a question where the answer would tend to criminate him or her. That common law privilege has been abolished by s. 5(1) of the Canada Evidence Act. Section 5(2) of the Act provides, however, that:
(2) Where with respect to any question a witness objects to answer ... although the witness is ... compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place ....
This limited form of protection against self‑incrimination clearly has no application to the proceedings in which the testimony is taken and applies only to subsequent proceedings (Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152 at pp. 219‑20). It applies, in other words, in subsequent proceedings in which the former witness has become the accused. Hence section 5(2) has to some extent shifted the focus of the protection against self‑incrimination from the proceedings in which the testimony is given to subsequent proceedings in which the witness has become the accused.
The focus on the subsequent proceedings is even more pronounced in s. 13 of the Charter, which does not refer to any compulsion to answer at the time of the testimony nor to any objection to answer on the part of the accused. Consequently, although s. 13 refers to "A witness who testifies", it is, like its predecessor, designed to be operative and to protect the interests of the person in the subsequent proceedings. Indeed, it is even clearer in s. 13 that the right functions at the level of the "other proceedings".
For these reasons, the Crown cannot, in my view, succeed in this portion of its argument.
Incriminating Evidence
The wording of the section refers twice to the notion of incrimination. According to the Crown, this means that the evidence in issue must, (1) have been incriminating in the first proceedings in which it was given, and (2) be incriminating in the second proceedings where the Crown attempts to use it.
Although a literal reading of the section supports the position of the Crown, I am nevertheless of the view that s. 13 does not require that the incriminating character of the evidence be evaluated in the first proceedings as well as in the second. Indeed, the literal approach defeats the nature and purpose of the section and furthermore leads to absurdity. When such is the case, the literal approach should not prevail unless the language used is of "absolute intractability", which is not the case here. The comments of Anglin J. in Regina Public School District v. Gratton Separate School District (1915), 1915 CanLII 594 (SCC), 50 S.C.R. 589, at p. 624 are, in my view, appropriate to the Charter context:
Only `absolute intractability of the language used' can justify a construction which defeats what is clearly the main object of a statute.
It would be contrary to sound construction to permit the use of a term not altogether apt to defeat the intention of the legislature, which must not be assumed to have foreseen every result that may accrue from the use of a particular word.
This Court has already adopted a purposive approach in the context of the Charter's interpretation: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. As elaborated in the preceding pages of this judgment, the purpose of the section indicates that the only moment in time which is relevant to the assessment of the incriminating nature of the evidence is the second proceedings.
As regards absurdity, in a great many cases, whether evidence is incriminating or not can only be properly assessed at the time it is being used in the subsequent proceedings, at the time when the Crown seeks to make use of the evidence. How, for example, could one assess the incriminating nature of evidence at the first proceedings, when the witness is not necessarily the accused and when the crime for which the witness may subsequently be charged may not even yet have been committed.
The decision of this Court in Piché v. The Queen, 1970 CanLII 182 (SCC), [1971] S.C.R. 23, presents additional support for the view that the incriminating nature of the evidence must be evaluated in the second proceedings. In that case, a majority of this Court held that the admission in evidence of statements made by an accused to persons in authority, whether inculpatory or exculpatory at the time they were made, was governed by the same considerations that is, by reference to the use which the Crown sought to make of it rather than by its content.
In the context of s. 13, the use which the Crown seeks to make of the evidence can only be ascertained at the time of the second proceedings.
For all of these reasons, I would reject the Crown's argument that the evidence in issue must be incriminating in both the first and second proceedings.
I am also of the view that any evidence the Crown tenders as part of its case against an accused is, for the purpose of s. 13, incriminating evidence. The Crown tenders evidence to support its case and obtain a conviction; it knows best what is incriminating. In a sense, the Crown could be said to be estopped from arguing that the evidence it tenders to that end is not incriminating. Since in this case, the Crown is tendering the evidence as part of its case, which clearly comes within the meaning of "used to incriminate", we need not here address the question of whether those words include resort to the previous testimony for the purpose of cross‑examining the accused, were the latter to choose to take the stand again in his or her own defence.
Any Other Proceedings
Having established that s. 13 is a form of protection against self‑incrimination, it is still necessary to consider whether this implies that an accused who has chosen to testify should be protected in a retrial of the same offence or one included therein.
I do not see how the evidence given by the accused to meet the case as it was in the first trial could become part of the Crown's case against the accused in the second trial, without being in violation of s. 11(d), and to a lesser extent of s. 11(c). For, the accused is being conscripted to help the Crown in discharging its burden of a case to meet, and is thereby denied his or her right to stand mute until a case has been made out.
To allow the prosecution to use, as part of its case, the accused's previous testimony would, in effect, allow the Crown to do indirectly what it is estopped from doing directly by s. 11(c), i.e. to compel the accused to testify. It would also permit an indirect violation of the right of the accused to be presumed innocent and remain silent until proven guilty by the prosecution, as guaranteed by s. 11(d) of the Charter. Our constitutional Charter must be construed as a system where "Every component contributes to the meaning as a whole, and the whole gives meaning to its parts" (P. A. Côté writing about statutory interpretation in The Interpretation of Legislation in Canada (1984), at p. 236). The courts must interpret each section of the Charter in relation to the others (see, for example, R. v. Carson (1983), 1983 CanLII 1812 (ON CA), 20 M.V.R. 54 (Ont. C.A.); R. v. Konechny, 1983 CanLII 282 (BC CA), [1984] 2 W.W.R. 481 (B.C.C.A.); Reference re Education Act of Ontario and Minority Language Education Rights (1984), 1984 CanLII 1832 (ON CA), 47 O.R. (2d) 1 (C.A.); R. v. Antoine, supra). To hold that a new trial is not "any other proceedings" within the meaning of s. 13 would in fact authorize an interpretation of a Charter right which would imply a violation of another Charter right. Such a result should be avoided.
A retrial of the same offence or one included therein, ordered by a court of appeal, is therefore "other proceedings" within the meaning of s. 13.
Concern has been expressed as regards the logical extension of this reasoning to the admissibility of evidence given by an accused at the preliminary inquiry under s. 469 of the Criminal Code. The matter is not raised on this appeal. But, even assuming without deciding that a preliminary inquiry is another proceeding, the question then to be addressed is whether s. 469 would be, under s. 1 of the Charter, an unreasonable limit to the protections afforded by s. 13. Relevant to this determination would, amongst other considerations, be the nature of the jeopardy in which an accused is placed, at that stage, if he chooses not to testify at the preliminary to rebut the "prima facie case".
Because of the Crown's great reliance on this Court's endorsement of Johnson J.A.'s remarks in R. v. Brown (No. 2), supra, I feel something must be said on the matter before concluding. That was a case where the Northwest Territories Court of Appeal (1963), 1963 CanLII 670 (NWT CA), 40 C.R. 90 had found that when a new trial is ordered because the first trial was a mistrial, the accused's evidence given at the first trial is not admissible in evidence against him at the second trial. Johnson J.A. dissented, and said that it was admissible. This Court reversed the Court of Appeal and adopted Johnson J.A.'s reasons. With respect, Johnson J.A.'s ratio decidendi is uncertain. It is difficult to ascertain to what extent the judge's dissent is dependent upon the fact that the accused did not object to answer, assuming he could have under the law, thereby bringing himself within the protection afforded by s. 5(2) of the Canada Evidence Act. The decision in Brown would not be an impediment to what I find is the proper construction of s. 13 of the Charter were it not for the following passage in Johnson J.A.'s reasons, at p. 101:
This privilege may be waived, and, of course, waiver takes place when a witness voluntarily enters the witness‑box and, without claiming the protection afforded by s. 5(2) of the Canada Evidence Act, gives evidence of a criminating nature. In Chambers v. Chambers (No. 2), [(1960), 1960 CanLII 576 (AB SCTD), 31 W.W.R. 399], the court held that the privilege once waived could be reclaimed in the second trial between the same parties. Applying that rule to the present case, it is obvious that, because the appellant had waived the privilege of testifying at his first trial, he cannot be compelled by the Crown to enter the witness‑box and give the same evidence at the second. But it is said that admitting this evidence in the way it was done here amounts to calling the accused as a Crown witness without allowing him the right of refusing to testify. This argument is best answered in the words of Lord Campbell C.J. in the Regina v. Scott case, supra, p. 59. Referring to the accused, his Lordship says:
"The accusation of himself was an accomplished fact, and at the trial he was not called upon to accuse himself. The maxim relied upon (nemo tenetur seipsum accusare) applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given."
(Emphasis added.)
- The Scott case (R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909) concerns a bankrupt who was, under the laws of England, bound by statute to answer all questions touching matters relating to his trade dealings. He did so and was subsequently prosecuted under the same statute for having mutilated his business book and records. This was a clear statutory exception to the protection given under the common law maxim "nemo tenetur seipsum accusare". In his judgment, Lord Campbell C.J. said, at p. 59:
Finally, the defendant's counsel relies upon the great maxim of English law "nemo tenetur se ipsum accusare." So undoubtedly says the common law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself; that is, that he must answer questions by answering which he may be criminated. This Act of Parliament, 12 & 13 Vict. c. 106, creates felonies and misdemeanors, and compels the bankrupt to answer questions which may shew that he has been guilty of some of those felonies or misdemeanors. The maxim of the common law therefore has been overruled by the Legislature, and the defendant has been actually compelled to give and has given answers, shewing that he is guilty of the misdemeanor with which he is charged. The accusation of himself was an accomplished fact, and at the trial he was not called upon to accuse himself.
It is immediately after having said this, that his Lordship added the passage later quoted by Johnson J.A.,
The maxim relied upon applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given.
- Of no little importance when considering the meaning of those words, are those immediately following:
If the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it.
Therefore, the reference by Lord Campbell C.J. to the time the maxim applies, is in relation to the legality of compelling the answer. It has, with respect, nothing to do with, and is not an answer, let alone the best answer, to the question phrased by Johnson J.A., i.e., whether admitting the evidence in the Brown case in the way it was being done then amounts to calling the accused as a Crown witness without allowing him or her the right of refusing to testify.
In any event, whatever may have been the ultimate ratio decidendi of the decision of this Court in R. v. Brown (No. 2), supra, that decision can be distinguished from the present case on many grounds. First, Brown was rendered prior to the coming into force of the Charter and the new right which it sets forth in s. 13. Secondly, it is difficult to ascertain to what extent Johnson J.A.'s dissent, adopted "in substance" by this Court, is dependent upon the fact that the accused did not object to answer, thereby failing to bring himself within the protection afforded by s. 5(2) of the Canada Evidence Act, assuming of course that the protection of the section is available to an accused testifying in his own defence.
In any event, had the common law maxim of "nemo tenetur seipsum accusare" and s. 5 of the Canada Evidence Act been interpreted in the light of the Charter, as they now must be, I would venture to suggest that a different result may well have ensued in R. v. Brown (No. 2), supra.
Although the constitutionality of s. 5(2) of the Canada Evidence Act was not in issue in the case at bar, it is clear that it must now be interpreted in the light of the Charter and, if it is found to be inconsistent therewith, it will be of no force or effect to the extent of the inconsistency.
For these reasons, the protection of s. 13, in my view, covers a retrial.
Section 613(1)(b)(iii) of the Criminal Code
Both parties to this appeal, when addressing the applicability of s. 613(1)(b)(iii) of the Criminal Code, dealt with the adduction of the testimony as if it were an ordinary error of law and argued pro and con the issue as to whether or not it caused a substantial wrong or miscarriage of justice. No one addressed the question of the relationship, if any, between a Charter violation and the available remedy under s. 24 of the Charter on the one hand, and the proviso of s. 613(1)(b)(iii) of the Criminal Code on the other. This important question should be left to be decided in another case. Assuming without deciding that s. 613(1)(b)(iii) can apply to a Charter violation and to a remedy under s. 24, given the nature of the evidence, I am of the view that this would not, in any event, be a proper case for applying the proviso.
I would allow the appeal, quash the conviction and order a new trial.
The following are the reasons delivered by
McIntyre J. (dissenting)‑‑This appeal in‑ volves, for the first time in this Court, consideration of the effect of s. 13 of the Canadian Charter of Rights and Freedoms. It is the sole issue raised before us.
The facts may be simply stated. The appellant was charged in an indictment which charged that he:
...at Calgary, in the Judicial District of Calgary, in the Province of Alberta, on or about the 6th day of March, A.D. 1980, did unlawfully kill Bruno Williams and did thereby commit second degree murder, contrary to the Criminal Code.
The appellant gave evidence at his trial and was convicted. Although he was represented by counsel he did not in giving his evidence, nor in the cross‑examination, object to any questions. Accordingly, the provisions of s. 5(2) of the Canada Evidence Act did not come into play to protect him against any later use of his evidence in a criminal trial. He appealed his conviction. The Court of Appeal quashed the conviction and ordered a new trial: (1982), 1982 ABCA 242, 69 C.C.C. (2d) 494. The Court of Appeal allowed the appellant's appeal on the basis of misdirection or non‑ direction on the defences raised by the appellant's evidence. At the new trial, the Crown read in as part of its case the evidence the appellant had given at his earlier trial. This evidence consisted of sixty pages of transcript and contained an admission that he, the appellant, had killed the deceased, alleging certain circumstances in justification. The appellant objected to this evidence being received. He based his objection on s. 13 of the Charter. The appellant called no evidence at his second trial and was convicted. A further appeal was taken. The Court of Appeal (Laycraft C.J.A., Harradence and Kerans JJ.A.) unanimously dismissed the appeal: (1984), 1984 ABCA 47, 11 C.C.C. (3d) 453, 9 C.R.R. 61, 39 C.R. (3d) 281, 31 Alta. L.R. (2d) 16, 8 D.L.R. (4th) 589, 51 A.R. 210, [1984] 3 W.W.R. 594.
The appellant alleges that the Court of Appeal erred in holding the evidence given by the appellant at his earlier trial was receivable at the second trial as part of the Crown's case. The issue before the Court may be stated in these terms: Where a court of appeal quashes a conviction and orders a new trial, does s. 13 of the Charter preclude the admission at the second trial of the evidence given by the accused at his first trial?
Kerans J.A., for the unanimous Court of Appeal, held inter alia: the appellant was at the time of the second trial a witness who had testified in a proceeding and therefore s. 13 of the Charter was applicable to the accused; the evidence of the accused on his first trial was used to incriminate him on the second; no question of retrospectivity was involved in applying s. 13 to this case. He concluded, however, that s. 13 of the Charter could provide no protection to the appellant because the second trial was not "any other proceedings" within the meaning of the section. I am in agreement with the conclusion reached by Kerans J.A. and in general terms with his reasons. I am led to this conclusion, however, by a different approach.
The appellant contended that the second trial was another proceeding under s. 13 of the Charter. The effect of the section would therefore be to exclude the evidence from the second trial. The principal argument advanced for the Crown was that s. 13 had no application in the case at bar because the second trial was not another proceeding. It could not therefore be applied to alter the law which has heretofore provided for the admissibility of such evidence.
It has long been settled that relevant out of court statements made by a party to the proceedings would be received in evidence against him but not generally for him. A qualification to this rule required that if the statement had been made to a person in authority it would be admitted only if shown to be voluntary. To protect against self‑incrimination, the common law recognized a right to object to incriminating questions in judicial and quasi‑judicial matters. This common law right was abolished by s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10. This section provides that, where a witness objects to a question upon the ground that the answer might tend to incriminate him or to establish liability in a civil proceeding and if it is a question which but for the passage of s. 5 of the Canada Evidence Act he would not have been compellable to answer, the answer which he was required to make could not be used or received in evidence against him in any criminal trial or other criminal proceedings.
Prior to the adoption of the new Canadian constitution which included the Charter the evidence given by the appellant on his first trial would have been receivable as part of the Crown's case in the second trial. Any doubts on this point were settled in this Court in R. v. Brown (No. 2) (1963), 1963 CanLII 671 (SCC), 40 C.R. 105. This case involved an appeal from the Court of Appeal of the Northwest Territories (1963), 1963 CanLII 670 (NWT CA), 40 C.R. 90 (Smith C.J., Porter, Johnson, Parker and Kane JJ.A.) Smith C.J. writing for the majority (Smith C.J., Porter and Kane JJ.A.), had held that when a new trial is ordered because the first trial was a mistrial the evidence of the accused given at the first trial is not admissible against him at his second trial. He recognized that there was much authority for the admission in judicial proceedings of a prior statement by an accused made under oath. He noted, however, that none of the authorities dealt with the precise question before us, that is, the admissibility against an accused at his second trial of the evidence he had given at his first trial. He said, at pp. 96‑97:
A new trial in the facts of this case to me means a fresh trial and not a trial at which the evidence before the judge and jury consists, in part, of oral evidence and, in part, the evidence of the accused given at the first trial.
The evidence of the appellant given at the first trial was given when he was charged with murder. He saw fit at that time to enter the witness‑box and be examined and cross‑examined. He did not give evidence at the second trial when he was charged with manslaughter. He was not a compellable witness either at the first trial or the second trial but, nevertheless, he found admitted against him in the second trial upon the charge of manslaughter the evidence he had voluntarily given at the first trial when he was charged with murder. The result, it appears to me, is that the Crown has accomplished indirectly what it cannot do directly, namely, to compel the accused person to give evidence against himself. I appreciate that this argument was put forth unsuccessfully in cases such as Regina v. Erdheim, [[1896] 2 Q.B. 260]; Regina v. Bird, [(1898), 79 L.T. 359], and Rex v. Boyle, [(1904), 20 T.L.R. 192]. But in none of these cases was the trial a new trial.
He concluded that the evidence could not be received on a new trial.
- Johnson J.A., with whom Parker J.A. agreed, dissented on this point. He considered that evidence given by an accused upon a former occasion is admissible against him. He relied for this proposition on Tass v. The King, 1946 CanLII 33 (SCC), [1947] S.C.R. 103, and R. v. Coote (1873), L.R. 4 P.C. 599, and he quoted the words of Sir Robert Collier giving judgment of the Privy Council, at p. 607, in the Coote case, where he stated the governing rule in these terms:
From these cases, to which others might be added, it results, in their Lordships' opinion, that the depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principle `nemo tenetur seipsum accusare,' but does not apply to answers given without objection, which are to be deemed voluntary.
Johnson J.A., referring to the words quoted above, then stated the ground of his dissent in these terms (at p. 100):
That case, and others referred to, deal with evidence given either in other proceedings or in proceedings prior to trial, and it is argued that those cases do not apply where the evidence taken at a first trial is sought to be used at a second trial of the same offence.
Reviewing the authorities dealing with the point, he expressed the view that the privilege against self‑incrimination could be waived and that when a witness voluntarily gave evidence in circumstances which did not invoke the provisions of s. 5(2) of the Canada Evidence Act he had waived the privilege. Recognizing that the waived privilege could be reclaimed on his second trial, he found it obvious that the appellant could not be compelled to give evidence at the second trial. However, to the argument that admitting the evidence from the first trial amounted to compelling the accused to testify, he cited the words of Lord Campbell C.J. in R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909, at p. 59:
The accusation of himself was an accomplished fact, and at the trial he was not called upon to accuse himself. The maxim relied upon [nemo tenetur seipsum accusare] applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given.
He rejected the argument that the evidence given at the first trial was not voluntary insofar as it consisted of answers adduced in cross‑examination, and he relied on R. v. Erdheim, [1896] 2 Q.B. 260, at p. 267, where Lord Russell C.J. said:
As to the objection that the statements were not voluntary, it was held that such an objection does not apply to a lawful examination in the course of a judicial proceeding...
and added (at p. 103):
It is difficult to see logic in saying that although the accused may voluntarily give evidence in his own behalf, his evidence assumes the nature of an admission or confession given under compulsion when cross‑examination begins.
- Parker J.A. in a short judgment concurring with Johnson J.A. added this comment (at p. 104):
The essence of the matter is that the accused is not being called upon to testify against himself but that, having voluntarily made a statement under oath in a judicial proceeding, that statement may be used as evidence against him in any other judicial proceeding in the same manner as any other voluntary statement which he may have made. If one has given evidence under oath at a trial, one can hardly be heard to complain when this evidence is put forward by an opposite party in a later proceeding.
- It may be observed that this passage is reproduced in Kaufman, The Admissibility of Confessions (3rd ed. 1979), at p. 361. While the learned author acknowledged that it was an attractive point of view and probably correct, he expressed concern that the Crown was doing indirectly what it could not do directly. He noted, however, that the dissent of Johnson J.A. had been accepted in the Supreme Court of Canada in a very short judgment:
For the reasons given by Mr. Justice Johnson, of the Court of Appeal for the Northwest Territories, with whom we substantially agree, the appeal is allowed and the conviction restored. The record is to be returned to the Court of Appeal for the Northwest Territories to adjudicate upon the question of sentence.
and stated:
It would be foolish to suggest that this judgment, brief though it is, does not state the law as it now exists in Canada.
He was concerned, as is Lamer J., at the use by the court of the word "substantially" in its expression of agreement with Johnson J.A. In my view that word has little, if any, significance here. Whatever qualification it may express, the judgment involves a clear endorsement of the ratio of Johnson J.A. and clearly states the law as it was in pre‑Charter days. It now remains to consider whether the Charter has changed the law in this respect.
Two questions must be answered. Does section 13 of the Charter apply in the facts of this case and, if it does, would it be effective to protect the appellant from the use of his earlier evidence in his second trial?
I have no difficulty with the first question. The first trial of the appellant took place before the introduction of the Charter. Nevertheless, I agree with my brother Lamer that there is no issue of retrospectivity in this case. All persons who come within the terms of s. 13 of the Charter acquired the right to its protection with the adoption of the Charter on April 17, 1982. The time at which the evidence in question was given is of no significance. Any protection from s. 13 will apply when it is sought to introduce the challenged evidence. I am also in agreement with Lamer J. that the word "witness" in s. 13 includes and applies to an accused who has given evidence in his own trial. The determination of whether the evidence is incriminating must be made at the time when it is tendered. I would add that I have no difficulty with the proposition that the evidence in question here is incriminating and that the purpose of the Crown in introducing it at the second trial as part of the Crown's case was to incriminate the appellant.
In order to determine whether s. 13 protects the appellant from the use of his earlier evidence at his second trial a general consideration of the impact of s. 13 is necessary. A comparison of s. 13 of the Charter with s. 5(2) of the Canada Evidence Act provides a useful starting point.
Section 5(2) of the Canada Evidence Act and s. 13 of the Charter are set out hereunder:
Incriminating Questions
- (1) ...
(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.
Self‑crimination
- 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.
A comparison of the two provisions shows that s. 13 of the Charter has indeed effected a major change in the law giving much wider protection against self‑incrimination than s. 5(2) of the Canada Evidence Act. As earlier noted, the common law rule which allowed a witness to claim privilege in respect of any evidence which would expose him to the risk of criminal conviction or the imposition of penalties or forfeitures (see Phipson on Evidence (13th ed. 1982), p. 314, para. 15‑36) was repealed by the section. In place of the old rule, s. 5(2) of the Canada Evidence Act requires an answer to an incriminating question but provides a safeguard against its future use if an objection was made. Section 13 of the Charter provides a much wider protection. In the clearest terms it gives the right to a witness who testifies in any proceeding not to have any incriminating evidence so given used to incriminate him in any other proceedings. This is a protection going far beyond that accorded by s. 5(2) of the Canada Evidence Act. It does not depend on any objection made by the witness giving the evidence. It is applicable and effective without invocation, and even where the witness in question is unaware of his rights. It is not limited to a question in respect of which a witness would have been entitled to refuse to answer at common law and its prohibition against the use of incriminating evidence is not limited to criminal proceedings. It confers a right against incrimination by the use of evidence given in one proceeding in any other proceedings.
It would follow then that this appellant would be entitled to succeed if the new trial is another proceeding. If, however, it is not another proceeding, but merely part of the proceedings on one indictment brought by the Crown, then s. 13 of the Charter on its own terms would not apply.
What meaning should be attributed to the words "other proceedings" in s. 13 of the Charter? The word "proceedings", while of common usage, is one of uncertain and variable meaning. A search through the texts and authorities, including legal dictionaries, does little more than confirm this proposition. The word has been used in both singular and plural form. It has frequently been used to describe an action or another cause or matter or a step in an action. Proceedings have been said to be still pending "if a final judgment is not satisfied or performed": see Halsbury’s Laws of England (4th ed. 1982), vol. 37, p. 30, para. 24. Black’s Law Dictionary (5th ed. 1979), p. 1083, offers the same variety of definitions as do such case authorities as have been considered. In the Saskatchewan Court of Appeal in Eddy v. Stewart, 1932 CanLII 214 (SK CA), [1932] 3 W.W.R. 71, in a case involving the construction of ss. 5 and 6 of the Debt Adjustment Act, 1932 (Sask.), c. 51, and in relation to a foreclosure action, Martin J. A. said, at p. 74:
Counsel for the plaintiff contended that the word "proceeding" in sec. 6 means "action;" while counsel for the defendant argued that the word embraced each step in an action. The word "proceeding," in its derivative sense, means, according to Murray's English Dictionary, vol. 7, at p. 1407, "the action of going onward; advance, onward movement or course." In its legal sense, it includes the form in which actions are brought and defended; the manner of intervening in suits and of conducting them; it is sometimes used as equivalent to and interchangeable with the word "action," and it is also applied to any step in an action. From the authorities it is clear that the word may be differently construed in different Acts: Stroud’s Judicial Dictionary, vol. 3, pp. 1561 et seq.; Ratteau v. Ball (1914) 1914 CanLII 481 (NS CA), 47 N.S.R. 488, 15 D.L.R. 574‑‑Townshend, C.J., at p. 576.
The meaning of the word "proceeding," therefore, as used in secs. 5 and 6 of the statute, must be gathered from the context.
I agree with that learned judge and consider that the meaning to be attributed to the words "other proceedings" in s. 13 of the Charter must be gathered from the context.
The appellant contends for an interpretation which would limit the word "proceeding" to a step in the action with the result that the new trial would be another proceeding and, therefore, s. 13 of the Charter would prevent the admission at the second trial of the evidence given at the first. The logical extension of this argument would, it seems to me, mean that the judicial process would be fragmented with the result that the preliminary hearing of an indictable offence would also be another proceeding, evidence from which would be excluded from the trial. The appeal would also be a separate proceeding, as would any motions to quash or otherwise seek interlocutory relief and any evidence, probably in affidavit form, in support of such interlocutory motions would not be available for consideration at the trial or other fragment of the proceedings. This would do such violence to the judicial process that it would, in my opinion, be unreasonable to accept such a construction of the Charter.
The respondent contends for an interpretation which would attribute a broader meaning to the words in s. 13 that would include all those judicial steps required by law to be taken in effecting a lawful resolution of the issues raised by the charge between the Crown and the accused. This would mean, of course, if accepted, that s. 13 of the Charter would not apply since the new trial would not be another proceeding.
This, in my view, is the preferable construction of s. 13 of the Charter. To begin with, s. 13 protects the accused from evidence in other proceedings. The word "other" must have some meaning. It must, in my view, mean proceedings other than the one in which the evidence sought to be excluded was given. Why would the word "other" be employed if the protection was to be provided for all proceedings? The use of the word "other" suggests a reference to proceedings involving other issues and other parties and supports the Crown position. Secondly, and of more importance, is the proposition that, while s. 13 of the Charter was clearly intended to provide, and does provide, a wider protection against self‑incrimination than that provided by s. 5(2) of the Canada Evidence Act, it was not nor could it be asserted in argument that either s. 13 of the Charter or s. 5(2) of the Canada Evidence Act could operate to protect against self‑incrimination respecting what was said by the accused at his own trial. Since the second trial in the case at bar is on the same indictment, between the same parties, and raising precisely the same issues, it cannot on a fair reading of s. 13 of the Charter be considered as another proceeding.
The facts of this case illustrate the reasonableness of this interpretation. The appellant argues that the Crown gains an advantage by being able to use his testimony in the later trial. He says, in effect: "I was convicted because the trial judge did not deal correctly with my evidence. If he had, I would have been acquitted." The Court of Appeal agrees to the extent that the evidence was not correctly dealt with and quashes the conviction, sending the matter back for a new trial. The appellant, having obtained the relief he sought, i.e. the new trial, then seeks to insulate the jury from his former evidence although he relied upon it at trial and it was the basis on which he procured his new trial. I agree that he may not be called upon to give evidence at his new trial; he may stand silent as the law provides but, in my opinion, consistent with the general rules of evidence long applicable in such cases, and already mentioned, the Crown is entitled in this step of the same proceedings to introduce the past voluntary statements of the accused in evidence and s. 13 of the Charter does not prevent this step. The appellant, a person charged with an offence, is entitled to a trial according to law which will lead to a judicial resolution of all issues arising out of the charge as between him and the Crown. The appellate procedures provided by law are designed to protect him in that right, and where the issues arising between the Crown and the appellant on the charge are not lawfully dealt with at a first trial the appellate court exists to direct the new trial for the lawful resolution of the issues raised in the proceedings.
Canadian courts have considered this problem and with one exception have favoured the Crown's position on this argument. In R. v. Wilson (1982), 1982 CanLII 3270 (ON SC), 67 C.C.C. (2d) 481, Honey Co. Ct. J. held that where an accused testified at his trial, which resulted in a mistrial, s. 13 of the Charter applied to prevent his evidence given at his first trial from being admitted at his retrial. The question of the meaning of the words "other proceedings" does not appear to have been argued before him.
In R. v. Sophonow (No. 1) (1983), 1983 CanLII 2935 (MB QB), 6 C.C.C. (3d) 394, Scollin J. disagreed with Honey Co. Ct. J. in Wilson, supra, saying, at pp. 395‑96:
However, I am not satisfied that s. 13 may properly be invoked in this case. In this respect I part company with the view expressed in R. v. Wilson, supra. There is no doubt that a second trial is, by its nature, a "subsequent" proceeding. In my view, it is not, however, an "other" proceeding as contemplated by s. 13. I consider that the sense, the justification and the thrust of s. 13 is to give generous protection to the search for truth by guaranteeing that a witness who comes forward to testify in one proceeding, and in the course of testifying truly, involves himself in some incriminating conduct, is not exposed to the use of that testimony itself in some other proceeding either then or later pending against him, subject only to the exception provided in s. 13. This rationale of s. 13 has no application to the accused when, as in this case, he testifies in his own defence. The proceedings here are proceedings on the very same indictment against the very same accused and do not fall within the words "any other proceedings" as contemplated by s. 13.
An appeal was taken to the Manitoba Court of Appeal (1983), 1984 CanLII 2912 (MB CA), 12 C.C.C. (3d) 272, and allowed on another point, but the position taken by Scollin J. at trial was approved by the judges of that court.
- The same view was taken by Legg J. in R. v. Mannion (1984), 1983 CanLII 1180 (AB QB), 6 C.C.C. (3d) 161 in the Alberta Court of Queen's Bench, where he said, at p. 164:
It is also my view that s. 13 of the Charter has no application in the case at bar. That section envisages two separate proceedings in which the evidence in one proceeding is used in the other. This is a retrial of a charge of rape after a new trial was ordered. [Here reference was made to R. v. Brown (No. 2) (1963), 1963 CanLII 670 (NWT CA), 40 C.R. 90.]
This case together with the fact that a new trial commences with the same indictment unless otherwise ordered leads me to the conclusion that the first trial and the second trial are one and the same proceeding. In the instant case, the trial is proceeding on the same indictment as was used in the first trial.
An appeal to the Court of Appeal was dismissed on this point but allowed on another issue (1984), 1984 ABCA 87, 11 C.C.C. (3d) 503. The case has been heard and judgment reserved in this Court.
- In R. v. Yakeleya (1985), 1985 CanLII 3478 (ON CA), 20 C.C.C. (3d) 193 (Ont. C.A.), Martin J.A., speaking for the court, dealt with a case where the evidence given at the defendant's preliminary hearing was admitted on his trial. He said (at p. 195):
We are all of the view that the appellant's trial did not constitute "other proceedings" in relation to the appellant's preliminary hearing on the same charge. The preliminary hearing and the trial on the same charge are part of the same proceedings: see R. v. Sophonow (1984), 1984 CanLII 2912 (MB CA), 12 C.C.C. (3d) 272 at pp. 277 and 332, 11 D.L.R. (4th) 24, 29 Man. R. (2d) 1.
Judgment in the Court of Appeal in the case at bar was, of course, to the same effect.
What then, it may be asked, is the purpose of s. 13 of the Charter? In answer to this question we can again refer to the law as it stood before the Charter was adopted. Section 5(2) of the Canada Evidence Act and various provincial evidence acts which were generally similar in effect provided the protection against incrimination. The protection provided depended upon an objection to the evidence, but where objection was not made the evidence was receivable in subsequent proceedings against the witness who gave it. This rule applied not only to the courts; it applied to evidence given before Royal commissions, statutory boards and tribunals, `in bankruptcy' proceedings, and many other forms of judicial and quasi‑judicial proceedings (see s. 2 of the Canada Evidence Act). There were many occasions where a witness through failure to object even though ignorant of his rights or even where a witness, for example, in bankruptcy matters, was compelled by law to answer the question rendered himself vulnerable to the use of incriminating evidence in criminal proceedings or to the use of prejudicial evidence in civil proceedings without recourse. Many cases illustrate this problem: see Tass v. The King, supra, where a witness called to give evidence at the preliminary hearing of another gave evidence without an objection, which would invoke s. 5(2) of the Canada Evidence Act, and which was later received in evidence against him at his own trial; R. v. Erdheim, supra, where statements made in bankruptcy proceedings under compulsion of law were held to be admissible at a later criminal proceeding against him; R. v. Coote, supra, where statements made under oath upon a fire marshall's inquiry, held pursuant to statutory power, were later admitted against the witness at his own trial for arson; R. v. McGregor, [1967] 2 All E.R. 267 (C.A.), to similar effect. It may also be observed that the power of provincial legislatures to give protection against self‑incrimination did not extend to criminal matters‑‑see Klein v. Bell, 1955 CanLII 38 (SCC), [1955] S.C.R. 309‑‑but was limited only to civil proceedings within provincial jurisdiction.
There is a social interest in encouraging people to come forward to give evidence, not only in court but on other occasions in the tribunals and proceedings referred to above. That interest is not served where witnesses in testifying expose themselves to the danger of self‑incrimination because of such testimony. It is suggested that it was a recognition of this fact, together with a recognition of the inadequacy of the law relating to self‑incrimination and the inadequacy of provincial powers in this respect that caused the framers of the Charter to include the very greatly strengthened Charter provisions relating to self‑incrimination. It was for this reason that s. 13 gave its protection against incrimination by the use of the evidence given by the witness in "other proceedings". It cannot, in my view, be construed to mean that protection under s. 13 of the Charter applies to evidence voluntarily given at a different stage in the very proceedings which are before the Court. Section 13 of the Charter, however, could still have a role to play in this case. The appellant admitted at his first trial that he was engaged in trafficking in narcotics when he met the deceased. Section 13 would prevent the use of this evidence against the appellant on a charge of trafficking, clearly another proceeding involving a different charge and different issues. To say, however, that protection would be given against the use of his first trial evidence on the second trial of this indictment, on the footing that the second trial is another proceeding, is to adopt an interpretation of s. 13 not dictated by its language, involving an abandonment of long‑accepted and sound principles of evidence.
It has been argued that to permit the Crown to adduce at the second trial, as part of its case, the evidence given by the accused on his first trial would be to permit the Crown to do indirectly what it may not do directly. It is said that the Crown would be conscripting the accused to assist in establishing the case against him and this would be to infringe the rights conferred on the accused by s. 11(c) and (d) of the Charter. This argument has no force in my view. Section 11(c) gives the accused the right not to be compelled to be a witness in proceedings against himself in respect of the offence. There is not in this case any compulsion involved. The appellant gave evidence voluntarily at his trial and on the basis of that evidence obtained a new trial. I do not accept the suggestion that appears in the judgment of Kerans J.A. that he was only technically a voluntary witness. He had a fully‑guaranteed right to silence. He was represented by counsel and he gave evidence. The provisions of s. 11(c) are not engaged in these circumstances where no compulsion existed. The Crown is merely invoking the well‑settled rule of evidence that past statements made by a party are ordinarily receivable in evidence against him, and I adopt here the words of Parker J.A. in the Northwest Territories Court of Appeal as well as those of Lord Campbell C.J. in R. v. Scott, supra, quoted above. The appellant may not be compelled to give evidence at his second trial but that protection, clearly provided by s. 11(c) of the Charter, does not extend to bar the use in evidence of earlier voluntary statements that he has made which are clearly relevant to the issues. By testifying at his trial he voluntarily waived his privilege of silence. It is quite open to him to reclaim the privilege on his new trial and remain silent, but in my view it is against all principle to say that the Charter right under s. 11(c) would extend to bar the use in evidence of earlier voluntary statements made by the accused clearly relevant to the issues. I would add that s. 11(d) is not in any way engaged in this case.
In my view then this appeal must fail. The word "proceedings" in s. 13 of the Charter means in a criminal case all judicial steps taken upon one charge to resolve and reach a final conclusion of the issue therein raised between the same party and the Crown. This would include the preliminary hearing, the trial, and an appeal and a new trial. All of these steps would be included in proceedings against the accused and would not be "other proceedings" within the meaning of s. 13. To the suggestion that adopting this view would make admissible at a trial evidence given by an accused on a voir dire held during the course of a trial, there is, I think, a simple answer. The voir dire is clearly another proceeding. Its purpose is not to resolve any issue raised in the charge but merely to determine what may be introduced into the proceedings for that purpose. After the voir dire the evidence found to be properly admissible in the proceedings is admitted and thereafter forms part of the proceedings. That which is excluded never becomes a part. The voir dire serves this limited purpose but is clearly another proceeding. It follows then that s. 13 of the Charter would provide no protection against the use of the evidence given in the first trial upon the second trial in this case.
I would dismiss the appeal.
Appeal allowed and new trial ordered, McIntyre J. dissenting.
Solicitors for the appellant: O'Brien, Devlin, Markey, Calgary.
Solicitor for the respondent: Bruce W. Duncan, Calgary.
