[1995] 1 S.C.R.
R. v. S. (R.J.)
451
R.J.S. Appellant v. Her Majesty The Queen Respondent and The Attorney General of Canada, the Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Saskatchewan and the Attorney General for Alberta Interveners
Indexed as: R. v. S. (R.J.)
File No.: 23581.
1994: February 28 and March 1; 1995: February 2.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Fundamental justice -- Self-incrimination -- Right to silence -- Whether accused separately charged with offence compellable as witness in criminal trial of another accused charged with same offence -- Whether compellability in such circumstances violates principles of fundamental justice -- Whether s. 5 of Canada Evidence Act constitutional -- Canadian Charter of Rights and Freedoms, ss. 7, 11(c), 13, 24(2) -- Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.
Criminal law -- Powers of courts of appeal -- New trial order -- Accused charged with break, enter, and theft -- Defence counsel arguing that Crown had not proved continuity with respect to stolen property -- Crown requesting trial judge to dismiss charge on basis that it had not been proved beyond reasonable doubt -- Whether appropriate for Court of Appeal to order new trial -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(4)(b)(i).
Criminal law -- Appeals -- Grounds of appeal -- Witness compellability -- Whether proper for accused to
raise as ground of appeal right to silence or testimonial privilege personal to witness.
S was charged with break, enter, and theft. M was separately charged with the same offence. The charges against the two young offenders were laid separately because of an administrative procedure applicable at the youth court. The Crown subpoenaed M as its main witness at S's trial but, following an application by M's counsel, the trial judge quashed the subpoena on the ground that to compel M's testimony would violate s. 7 of the Canadian Charter of Rights and Freedoms. The trial judge found that, in the circumstances, M had an absolute right to silence which made him non-compellable. The Crown proceeded with the trial against S and called the owner of the stolen property and the investigating officer who had received the property from S and placed it in the charge of the property officer. The Crown did not call the property officer and, at the close of the Crown's case, defence counsel argued that failure to call the property officer constituted a break in the continuity of the evidence. In response, the Crown asked the trial judge to dismiss the charges against S on the basis that the charges had not been proven beyond a reasonable doubt. The trial judge dismissed the charges and, subsequently, the charges against M were stayed. The Crown appealed the acquittal on the ground that the trial judge erred in quashing M's subpoena. The Court of Appeal allowed the appeal and ordered a new trial.
Held: The appeal should be dismissed.
Per La Forest, Cory, Iacobucci and Major JJ.: There is in Canada a principle against self-incrimination which is part of fundamental justice. The policy justification for the principle, at common law and in the Charter, rests upon the idea that the Crown must establish a "case to meet". The principle, however, is not absolute and may reflect different rules in different contexts. It also has the capacity to introduce new rules to benefit the overall system.
On the facts of this case, M was properly compellable at S's trial and the trial judge erred in quashing the subpoena. While a statutory compulsion to testify engages the liberty interest of s. 7, M's liberty interest is affected in accordance with the principles of fundamental justice. Fundamental justice is satisfied because neither M's testimony, nor a limited class of evidence derived from his testimony, can later be used to incriminate him in other
proceedings (save for proceedings in respect of perjury or for the giving of contradictory evidence).
The similarity between the structure of ss. 11(c) and 13 of the Charter, and the statutory approach apparent in s. 5 of the Canada Evidence Act, demonstrate an obvious attempt to enact in constitutional form the same structural protection against self-incrimination for witnesses which existed historically. The protection envisioned involves a general rule of witness compellability, coupled with an evidentiary immunity. Although care must be taken to guard against defining the principles of fundamental justice in overreliance upon a legislative position, even a position of long standing, to contend that s. 7 of the Charter demands a testimonial privilege for all witnesses is to suggest that the framers of our Constitution misunderstood the nature of s. 5 of the Canada Evidence Act and forgot to include a provision in the Charter comparable to the Fifth Amendment of the American Constitution. Such a proposition is unacceptable.
Further, for s. 7 purposes, there is no need for an exemption to the general compellability rule which is based upon the status of the person whose evidence is sought to be compelled. The possibility that a proceeding not instituted for the purpose of obtaining self-conscriptive evidence will nonetheless have that effect is a problem which confronts every witness who is compellable and who must answer questions pursuant to s. 5 of the Canada Evidence Act. The Charter protections against self-incrimination should not vary with individual status. The Charter's structure, however, cannot be invoked to condone all types of inquisition and one must focus on the purpose, or character, of proceedings at which testimony is sought to be compelled as a way to confine the reach of a general compellability rule. An objection must be lodged against proceedings which are justified by a self-incriminatory purpose. Here, although S's trial might be considered an inquiry in relation to M as witness, the inquiry is of the sort permitted by our law. The search for truth in a criminal trial against a named accused has an obvious social utility, and the truth-seeking goal operates to limit effectively the scope of the proceedings in terms of the "inquiry effect". The
laws of relevancy would preclude the random examination of individuals within a criminal trial.
While in Hebert the recognition of a residual role for s. 7 gave effect to the Charter as a coherent system, to use s. 7 as the repository for an absolute right to silence or for the common law witness privilege would do violence to that system since it would become difficult to account for the existence of s. 13 of the Charter.
Section 13, however, does not exclusively define the scope of the available evidentiary immunity. The principle against self-incrimination also finds recognition under s. 24(2) of the Charter and a review of the principles developed under that section discloses a need for a partial derivative use immunity under s. 7 of the Charter. Derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness ought generally to be excluded under s. 7 in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.
The test for exclusion of derivative evidence involves the question whether the evidence could have been obtained but for the witness's testimony and requires an inquiry into logical probabilities, not mere possibilities. The important consideration is whether the evidence, practically speaking, could have been located. Logic must be applied to the facts of each case, not to the mere fact of independent existence. There should be no automatic rule of exclusion in respect of any derivative evidence. Its exclusion ought to be governed by the trial judge's discretion. The exercise of the trial judge's discretion will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission. The burden is on the accused to demonstrate that the proposed evidence is derivative evidence deserving of a limited immunity protection.
In the context of S's criminal trial, M's testimony is therefore compellable under the general rule applicable to all witnesses, and the principle against self-incrimination is satisfied if M receives the simple use immunity provided by s. 13 of the Charter, together with a residual derivative use immunity in respect of evidence which could not have been obtained but for his
compelled testimony. This residual immunity will be given recognition by the trial judge through the exercise of a discretion, but exclusion will be the likely result because the self-incrimination principle demands the preservation of trial fairness.
Section 5 of the Canada Evidence Act does not infringe s. 7 of the Charter. Section 5(1) of the Act abolishes the common law privilege against self-incrimination, with the result that a compellable witness must answer questions posed, and s. 5(2) offers such a witness protection in the form of an immunity. Neither subsection purports to make evidence of any kind necessarily admissible at a subsequent proceeding. Thus, nothing in s. 5 offends the requirement for a partial derivative use immunity under s. 7.
This Court had jurisdiction to consider this appeal since S could properly raise a question of law based upon M's compellability as a witness. The question associated with M's rights and privileges was initially raised by the Crown in the Court of Appeal, and it would ill comport with our system of law to suppose that S had no right to respond. An appeal to this Court is simply an extension of S's response.
The Court of Appeal did not err in ordering a new trial pursuant to s. 686(4)(b)(i) of the Criminal Code. The Crown did not concede the continuity problem and only made a general concession to the effect that its case did not meet the criminal standard of proof. Irrespective of the Crown's effort to link S to the offence by focusing on his alleged possession of certain property, the Crown had also planned to link him to the offence by offering M's eyewitness evidence. The Court of Appeal was correct to order a new trial in these circumstances, since it cannot be said that the verdict would necessarily have been the same if M had testified.
Per Lamer C.J.: Iacobucci J.'s comments concerning the status of the principle against self-incrimination as a principle of fundamental justice were agreed with and his conclusions regarding the availability of derivative evidence immunity as a means of realizing this principle were generally agreed with. In certain circumstances, however, s. 7 of the Charter will provide additional protection beyond evidentiary immunity in order to
safeguard adequately the right of individuals not to be compelled to incriminate themselves and will mandate exceptions to the general rule that the state is entitled to every person's evidence. The right of an accused not to be forced into assisting in his own prosecution is perhaps the most important principle in criminal law and the principles of fundamental justice require that courts retain the discretion to exempt witnesses from being compelled to testify, in appropriate circumstances. The person claiming the exemption has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. The factors suggested by Sopinka J. will ordinarily need to be considered by the judge exercising this discretion. Here, the trial judge erred in quashing the subpoena against M on the basis of an absolute right to silence.
Iacobucci J.'s conclusions on the other issues arising in this case were agreed with.
Per Sopinka and McLachlin JJ.: The question in this case is whether, under the principles of fundamental justice, a co-accused can be compelled as a witness. This question can be resolved in each case by balancing the principle that the state is entitled to every person's evidence and the principle that an accused is entitled to remain silent. This, generally, is the approach which accords with the common law and therefore, if carried into s. 7 of the Charter, is the relevant principle of fundamental justice. If not included in s. 7, it remains a principle of the common law.
It would be consistent with the development of the common law and the principles of fundamental justice to allow the court to make an exception to the general right of the state to every person's evidence when the right of the accused to remain silent is seen to outweigh the necessity of having that evidence. This exception would recognize the anomaly of the systematic compulsion of persons accused of crime to testify in other proceedings while, at the same time, they are entitled to remain silent if interrogated by the police before their trial and are granted absolute immunity from testifying during their trial. The absence of such an exception would undermine these rights if not rendering them illusory. This approach accepts the basic tenets of the applicable common law principles but with a flexible, principled approach to the exceptions to a common law rule.
Further, this approach does not affect the operation of s. 5 of the Canada Evidence Act, which deals with the right of a witness who is already on the stand. It is also more conducive to the efficient conduct of trials.
In some cases, the unfairness of compelling a witness to testify will not appear until after that witness has given evidence. In such circumstances, the person so compelled should not be precluded from seeking a remedy at the trial stage in proceedings against that person.
A person charged may thus have a right to an exception from the principle that the state is entitled to every person's evidence. The person claiming the exception must assert the right before his testimony is taken and has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. A person who is for all intents and purposes an accused but has not been formally charged may in some circumstances also claim the exception. In balancing the accused's interest in remaining silent against the Crown's interest in obtaining evidence, the following non-exhaustive factors should be considered in arriving at a decision with respect to compellability: (1) the relative importance of the evidence to the prosecution in respect of which the accused is compelled; (2) whether the evidence can be obtained in some other manner; (3) whether the trial or other disposition of the charge against the accused whose evidence is sought to be compelled could reasonably be held before he is called to testify; (4) the relationship between the proposed questions to the accused witness and the issues in his trial; (5) whether the evidence of the accused witness is likely to disclose defences or other matters which will assist the Crown notwithstanding the application of s. 5(2) of the Canada Evidence Act; and (6) any other prejudice to the accused witness, including the effect of publication of his evidence. Failure to raise the issue of compellability at the appropriate time, or an adverse ruling in that regard, will in some circumstances not preclude the matter being renewed in subsequent proceedings. Here, the trial judge erred in quashing the subpoena against M on the basis of the application of an absolute right to remain silent which made him non-compellable. Since
the charge against M has been stayed, however, the issue of his compellability will not arise at S's new trial.
Per L'Heureux-Dubé and Gonthier JJ.: Common law protections against self-incrimination focus specifically on situations in which the state seeks to rely on compelled communications -- words or actions that may be communicative in character -- as a means of proving the accused's guilt. The principle is not so broad as to contemplate all self-incriminatory effects. Such a broad vision of the principle against self-incrimination would be inconsistent with many state actions, such as compulsion to submit to a breath sample, fingerprinting, participation in identification line-ups, or compulsion to produce documents, all of which implicate the individual in his own prosecution. There is also no rule at common law that prohibits use by the state of derivative evidence per se. The derivative use immunity approach is an American invention required to deal with the unique language of their Fifth Amendment. Many of the concerns at common law said to be countenanced by the principle against self-incrimination actually relate even more fundamentally to general considerations of fairness, human decency and the integrity of the judicial system. The doctrine of abuse of process has developed as a means to address these concerns directly. The occasional exception to compellability has been recognized to address these concerns indirectly. If exceptions are to be made to the general rule of compellability, then they should develop along the lines of these underlying principles of fairness rather than out of an imprecise extension of the common law principle against self-incrimination.
In the Charter, ss. 10(b), 11(c) and 11(d) are evidence that there exists a residual principle against self-incrimination under s. 7. This protection manifests itself in the form of the "right to silence". A careful examination of ss. 13, 24 and 7 of the Charter, however, reveals that the Charter has not created a broader fundamental principle against self-incrimination than that which existed previously at common law. The historical context in which s. 13 of the Charter was introduced suggests strongly that Parliament did not intend to enhance significantly the protections against self-incrimination available under s. 5(2) of the Canada Evidence Act. Had the Charter's drafters intended to depart from the Canadian status quo towards the
American model involving derivative use immunity, there would have been material changes in the wording or breadth of s. 13 as compared to s. 5(2). The drafters would not have left such an important change to the indefinite realm of the principles of fundamental justice under s. 7 of the Charter.
The Charter did not, under s. 7, actually create any brand new principles of fundamental justice. The Charter embodies those principles which Canadians consider fundamental to our system of justice and the principle against self-incrimination has not been radically redefined by the advent of the Charter. Defining "self-incrimination" over-inclusively as arising whenever the state obtains evidence which it could not have obtained "but for" the individual's participation would take the notion of self-incrimination far beyond the communicative character that grounds it at common law. If a principle against self-incrimination under s. 7 of the Charter were to be based on the "but for" test, the admission of evidence obtained through breathalyzers, fingerprinting, searches, or compelled production of documents would be inconsistent with s. 7. Objections made to the constitutionality of such evidence, however, are only recognized under the Charter in so far as they address the manner in which that evidence was obtained. Objections to the fact that such evidence may be gathered, and to the fact that the individual was compelled to assist in its production, are not recognized under the Charter. Both the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former. Since evidence may not be admitted at trial on the basis of any compelled act which is communicative in character, the substantive fairness of the trial is not prejudiced by the fact of prior compelled testimony. Any remaining concerns about fairness must therefore relate to the manner by which the derivative evidence was obtained, and are therefore procedural. Such concerns centre on the integrity of our justice system and on fairness to, and the dignity of, the individual. These concerns are addressed by resort to the notions of fundamental fairness which underlie almost all of the values and principles said to flow from our Charter, and not
merely by a broad expansion of the principle against self-incrimination.
Furthermore, like other provisions of the Charter, s. 7 must be approached purposively. A commitment to purposive interpretation entails a commitment to ensuring that a legal principle is interpreted sufficiently broadly to further the interests it is meant to protect, yet not so broadly as to overshoot them. Ultimately, the principles of fundamental justice require a balancing of societal interests with those of the accused. To strike a balance that would effectively prohibit the state from engaging in otherwise lawful activity, in furtherance of a pressing and substantial state objective, which nonetheless has the effect of conscripting an individual to assist in his own investigation, would stultify law enforcement in our country. Accordingly, the common thread that is truly fundamental to our system of justice cannot be so broad as to extend to all potentially self-incriminatory effects of state action. What is fundamental to justice is that the state not be able to invade the sanctum of the mind for the purpose of incriminating that individual. This fundamental tenet is preserved, in its entirety, by a principle against self-incrimination that is communicative in character. This principle, in turn, is largely embodied in s. 13 of the Charter. To the extent that state compulsion may elicit incriminating communications or communicative behaviour from an individual even though not in the context of formal proceedings, this fundamental protection is rounded out by the recognition of a residual right to silence in s. 7. The right to silence in s. 7 is triggered when an adversarial relationship arises between the individual and the state. Given the protections that already enure to a witness under s. 13 of the Charter and s. 5 of the Canada Evidence Act, an individual who is compelled as a witness at other proceedings only truly stands in an adversarial position vis-à-vis the state when the state is seeking predominantly to build its case against that witness. This adversarial position can exist even in circumstances where the witness has not yet been charged. As long as the state is pursuing a valid purpose and not seeking predominantly to obtain discovery against the witness, however, the right to silence is not engaged, nor has an adversarial relationship between the compelled witness and the state crystallized.
Section 24(2) of the Charter is a remedy for a breach of a Charter right. It is neither a substantive right itself nor a principle of fundamental justice. The s. 24(2) jurisprudence elaborates mainly upon what is meant by the phrase "bringing the administration of justice into disrepute" and should not be overly relied upon in order to define a principle of fundamental justice under s. 7. Section 24(2) is not coextensive with s. 7. If the principles of fundamental justice are the bedrock of our legal system, then they must rest on more solid foundations than this Court's most recent jurisprudence governing s. 24(2).
A witness may be entitled to claim an exception under s. 7 from the principle that the state is entitled to every person's evidence if it is established that the Crown is engaging in fundamentally unfair conduct. Attempts to by-pass the procedural safeguards that are intrinsic to the notions of dignity and individual liberty contained in the Charter and to our conception of fundamental trial fairness are fundamentally unfair conduct that violates the principles of fundamental justice. Fundamentally unfair conduct thus will most frequently occur when the Crown is seeking, as its predominant purpose (rather than incidentally), to build or advance its case against that witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. A witness may not be compelled in a proceeding which is, in essence, an investigation of that witness, rather than a prosecution of an accused. When the state legitimately compels an individual to testify in order to pursue a valid purpose, unfavourable effects flowing from the disclosure of information that may incriminate or otherwise prejudice that person would not per se contravene the principles of fundamental justice embodied in s. 7, given other existing protections under the Charter. As well, the subsequent acquisition of evidence which may be derivative would not, per se, violate the Charter, where that evidence is acquired in a manner that is incidental to the valid purposes for which the witness was compelled. The onus is on the witness to establish fundamentally unfair conduct contrary to s. 7. In determining whether such conduct exists, the status of that witness as a person who has already been charged is not conclusive, but is an important factor in determining whether fundamentally unfair conduct has been established. While findings of fundamentally unfair conduct should not be limited to persons charged, as a practical
matter it will be difficult to establish such conduct without such status.
The issue of fundamentally unfair conduct amounting to a breach of the principles of fundamental justice in s. 7 may be raised when the witness is subpoenaed and when the witness is tried. At the subpoena stage, the state shall disclose to the tribunal the general purpose for which it seeks to compel that individual's testimony and the relative importance of that evidence to the prosecution in respect of which the witness is compelled. The witness may then attempt to demonstrate fundamentally unfair conduct from the fact of the compulsion. If the witness succeeds, the appropriate remedy will be a quashing of the subpoena. If not, the issue may again be raised at the trial stage. At that stage, the court will ask itself whether, if what is now known had been known at the time the state sought to compel the witness, an exception would have been made to the general rule of compellability and the subpoena would have been quashed. Through fundamentally unfair conduct, the state may have gained important and diverse strategic advantages. If fundamentally unfair conduct contrary to s. 7 is demonstrated at that stage, the appropriate remedy is generally a stay of proceedings.
In light of the finding as to Crown conduct that would violate s. 7, the protections accorded a witness under ss. 7 and 13 of the Charter are such that although s. 5 of the Canada Evidence Act abrogates the common law privilege against self-incrimination, this fact does not render s. 5 unconstitutional. Section 5 therefore does not violate s. 7 of the Charter.
In the present case, the compulsion to testify subject to possible imprisonment for failure to comply was, itself, a deprivation of liberty which brings the issue of the witness's compellability within the scope of a s. 7 examination. The trial judge, however, erred in quashing the subpoena against M since he arrived at this conclusion on the basis that, under the circumstances, M should enjoy an absolute right to remain silent. The charge against M has been stayed and any question as to his compellability is now moot.
Cases Cited
By Iacobucci J.
Distinguished: R. v. Hebert, [1990] 2 S.C.R. 151; considered: Batary v. Attorney General for
Saskatchewan, [1965] S.C.R. 465; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; referred to: Re Praisoody (1990), [1990] 1 O.R. (3d) 606, 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam); Re Welton and The Queen (1986), 29 C.C.C. (3d) 226; R. v. Zurlo (1990), 57 C.C.C. (3d) 407; R. v. Morra (1992), 11 O.R. (3d) 202; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Gruenke, [1991] 3 S.C.R. 263; Lilburn's Trial (1637), 3 How. State Tr. 1316; Lamb v. Munster (1882), 10 Q.B.D. 110; Bell v. Klein, [1954] 1 D.L.R. 225; Brown v. Hooper (1885), 3 Man. R. 86; R. v. Pantelidis, [1943] 1 D.L.R. 569; Marcoux v. The Queen, [1976] 1 S.C.R 763; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Fee (1887), 13 O.R. 590; Gosselin v. The King (1903), 33 S.C.R. 255; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Ibrahim v. The King, [1914] A.C. 599; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Wray, [1971] S.C.R. 272; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451; Re Westinghouse Electric Corp. Uranium Contract Litigation MDL Docket No. 235 (No. 2), [1977] 3 All E.R. 717; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Ratti, [1991] 1 S.C.R. 68; R. v. Downey, [1992] 2 S.C.R. 10; Counselman v. Hitchcock, 142 U.S. 547 (1892); R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Staranchuk (1982), 3 C.C.C. (3d) 138 (Sask. Q.B.), rev'd on other grounds (1983), 8 C.C.C. (3d) 150 (Sask. C.A.); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re Regan, [1939] 2 D.L.R. 135; Faber v. The Queen, [1976] 2 S.C.R. 9; R. v. Scorey (1748), 1 Leach 43, 168 E.R. 124; Wakley v. Cooke (1849), 4 Ex. 511, 154 E.R. 1316; Re Transpacific Tours Ltd. and Director of Investigation & Research (1985), 24 C.C.C. (3d) 103; Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Power, [1994] 1 S.C.R. 601; R. v. Crooks (1982), 39 O.R. (2d) 193; R. v. Mazur (1986), 27 C.C.C. (3d) 359 (B.C.C.A.), leave to appeal refused, [1986] 1 S.C.R. xi; Kastigar v. United
States, 406 U.S. 441 (1972); Attorney-General v. Kelly (1916), 28 D.L.R. 409; R. v. Simpson, [1943] 3 D.L.R. 355; Re Ginsberg (1917), 38 D.L.R. 261; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Elshaw, [1991] 3 S.C.R. 24; Sweitzer v. The Queen, [1982] 1 S.C.R. 949; R. v. Bartle, [1994] 3 S.C.R. 173; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Kowlyk, [1988] 2 S.C.R. 59; R. v. C. (T.L.), [1994] 2 S.C.R. 1012.
By Lamer C.J.
Referred to: R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465; O'Hara v. British Columbia, [1987] 2 S.C.R. 591.
By Sopinka J.
Referred to: Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465; R. v. Amway Corp., [1989] 1 S.C.R. 21; Re Spencer and The Queen (1983), 145 D.L.R. (3d) 344 (Ont. C.A.), aff'd [1985] 2 S.C.R. 278; R. v. Hebert, [1990] 2 S.C.R. 151; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; R. v. Moran (1987), 36 C.C.C. (3d) 225; Re Mulroney and Coates (1986), 54 O.R. (2d) 353; Faber v. The Queen, [1976] 2 S.C.R. 9; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; Hammond v. Commonwealth of Australia (1982), 152 C.L.R. 188; R. v. Pipe (1966), 51 Cr. App. R. 17; Re Regan, [1939] 2 D.L.R. 135; Re Welton and The Queen (1986), 29 C.C.C. (3d) 226; R. v. Zurlo (1990), 57 C.C.C. (3d) 407; R. v. Primeau (1993), 108 Sask. R. 193; Re Praisoody (1990), 1 O.R. (3d) 606, 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam); R. v. Smith, [1992] 2 S.C.R. 915; R. v. Duvivier (1991), 64 C.C.C. (3d) 20; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Black, [1989] 2 S.C.R. 138.
By L'Heureux-Dubé J.
Distinguished: R. v. Hebert, [1990] 2 S.C.R. 151; considered: Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465; referred to: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Jones, [1994] 2 S.C.R. 229; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Hogan v.
The Queen, [1975] 2 S.C.R. 574; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Wray, [1971] S.C.R. 272; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Potvin, [1989] 1 S.C.R. 525; Re Regan, [1939] 2 D.L.R. 135; Faber v. The Queen, [1976] 2 S.C.R. 9; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Beare, [1988] 2 S.C.R. 387; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Ruben v. The Queen (1983), 24 Man. R. (2d) 100; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; Re Welton and The Queen (1986), 29 C.C.C. (3d) 226; R. v. Zurlo (1990), 57 C.C.C. (3d) 407; Re Praisoody (1990), 1 O.R. (3d) 606, 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam); Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724; R. v. Power, [1994] 1 S.C.R. 601; A.T. & T. Istel Ltd. v. Tully, [1992] 3 All E.R. 523; R. v. Smith, [1992] 2 S.C.R. 915.
Statutes and Regulations Cited
Act further to amend The Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1.
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.
Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 4.
Canadian Bill of Rights, R.S.C., 1985, App. III.
Canadian Charter of Rights and Freedoms, ss. 7, 8-14, 10(b), 11(c), 11(d), 13, 15, 24(2).
Competition Act, R.S.C., 1985, c. C-34, s. 45(1)(c) [am. c. 19 (2nd Supp.), s. 30].
Constitution of the United States, Fifth Amendment.
Constitution Act, 1867, s. 91(27).
Criminal Code, R.S.C., 1985, c. C-46, ss. 348(1)(b), 686(4)(b)(i), 691(2)(a) [rep. & sub. 1991, c. 43, s. 9 (Sch., item 9)].
Criminal Evidence Act, 1898 (U.K.), 61 & 62 Vict., c. 36, s. 1.
Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33.
Young Offenders Act, R.S.C., 1985, c. Y-1, ss. 2(1), 5(1), 27(1) [rep. & sub. c. 24 (2nd Supp.), s. 20(1)].
Authors Cited
Alberta. Law Reform Institute. Report No. 62. Proposals for the Reform of the Public Inquiries Act. Edmonton: The Institute, 1992.
Canada. Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen's Printer, 1969.
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report. Freedom and Security under the Law, vol. 2. Ottawa: The Commission, 1981.
Canada. Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
Canada. Law Reform Commission. Report 13. Advisory and Investigatory Commissions. Ottawa: The Commission, 1979.
Canada. Law Reform Commission. Working Paper 17. Commissions of Inquiry: A New Act. Ottawa: The Commission, 1977.
Canada. The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada. Ottawa, 1980.
Cross, Rupert, Sir, and Colin Tapper. Cross on Evidence, 7th ed. London: Butterworths, 1990.
Elman, Bruce P. "Returning to Wray: Some Recent Cases on Section 24 of the Charter" (1988), 26 Alta. L. Rev. 604.
Ghio, R. S. "The Iran-Contra Prosecutions and the Failure of Use Immunity" (1992), 45 Stan. L. Rev. 229.
Greer, Steven. "The Right to Silence: A Review of the Current Debate" (1990), 53 Mod. L. Rev. 709.
Haines, Edson. "Future of the Law of Evidence -- The Right to Remain Silent -- Two Views" (View I). In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence. Toronto: Butterworths, 1972, 321.
Henkel, William. "Competency, Compellability and Coroners' Courts" (1970), 12 Crim. L.Q. 166.
Heydon, J. D. "Statutory Restrictions on the Privilege Against Self-Incrimination" (1971), 87 L.Q.R. 214. Hor, Michael. "The Privilege Against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35.
MacNair, M. R. T. "The Early Development of the Privilege against Self-Incrimination" (1990), 10 Oxford J. Legal Stud. 66.
Maloney, Arthur, and Paul V. Tomlinson. "Future of the Law of Evidence -- The Right to Remain Silent --
Two Views" (View II). In Roger E. Salhany and Robert J. Carter, eds., Studies in Canadian Criminal Evidence. Toronto: Butterworths, 1972, 335.
Mewett, Alan W. "Law Enforcement and the Conflict of Values" (1970), 12 Crim. L.Q. 179.
Mewett, Alan W. "Prejudicing an Accused" (1992), 34 Crim. L.Q. 385.
Mewett, Alan W. "The Right to Silence" (1990), 32 Crim. L.Q. 273.
Murphy, Jerome A. "The Aftermath of the Iran-Contra Trials: The Uncertain Status of Derivative Use Immunity" (1992), 51 Md. L. Rev. 1011.
Ontario. Law Reform Commission. Report on Public Inquiries. Toronto: The Commission, 1992.
Ontario. Law Reform Commission. Report on the Law of Evidence. Toronto: The Commission, 1976.
Paciocco, David M. Charter Principles and Proof in Criminal Cases. Toronto: Carswell, 1987.
Ratushny, Ed. "Is There a Right Against Self-Incrimination in Canada?" (1973), 19 McGill L.J. 1.
Ratushny, Ed. Self-Incrimination in the Canadian Criminal Process. Toronto: Carswell, 1979.
Ratushny, Ed. "Self-Incrimination: Nailing the Coffin Shut" (1978), 20 Crim. L.Q. 312.
Ratushny, Ed. "The Role of the Accused in the Criminal Process". In Gérard-A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989, 451.
Robardet, Patrick. "Should We Abandon the Adversarial Model in Favour of the Inquisitorial Model in Commissions of Inquiry?" In A. Paul Pross, Innis Christie and John A. Yogis, eds., Commissions of Inquiry. Toronto: Carswell, 1990, 111.
Schiff, Stanley A. Evidence in the Litigation Process, vol. 2, 4th ed. Scarborough, Ont.: Carswell, 1993.
Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf).
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Stratas, David. The Charter of Rights in Litigation: Direction from the Supreme Court of Canada, vol. I. Aurora, Ont.: Canada Law Book, 1990 (loose-leaf).
Watson, Jack. "Talking About the Right to Remain Silent" (1991), 34 Crim. L.Q. 106.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1993), 12 O.R. (3d) 774, 61 O.A.C. 395, 80 C.C.C. (3d) 397, 21 C.R. (4th) 47, 14
C.R.R. (2d) 244, allowing the Crown's appeal from the young offender's acquittal on a charge of break, enter, and theft, and ordering a new trial. Appeal dismissed.
Alan D. Gold, for the appellant.
Michal Fairburn and Scott Hutchison, for the respondent.
S. Ronald Fainstein, Q.C., and Robert J. Frater, for the intervener the Attorney General of Canada.
Jacques Gauvin and Gilles Laporte, for the intervener the Attorney General of Quebec.
Marva J. Smith, for the intervener the Attorney General of Manitoba.
George H. Copley, for the intervener the Attorney General of British Columbia.
Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
Paul C. Bourque, for the intervener the Attorney General for Alberta.
The following are the reasons delivered by
LAMER C.J. -- I have read the reasons of my colleagues Justice L'Heureux-Dubé, Justice Sopinka and Justice Iacobucci. While I agree with Iacobucci J.'s remarks concerning the status of the principle against self-incrimination as a principle of fundamental justice (remarks that are in accordance with the views I expressed in R. v. P. (M.B.), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229), and while I generally agree with his conclusions regarding the availability of derivative-evidence immunity as a means of realizing this principle, I believe it is necessary to say more about the question of whether, in certain circumstances, s. 7 of the Canadian Charter of Rights and Freedoms requires additional measures to be taken to safeguard the right of individuals not to be compelled to incriminate themselves.
Although I agree with Iacobucci J.'s conclusion that the mere fact that a person is charged with a crime or is a serious suspect does not automatically entitle him or her to avoid being compelled to testify, this does not answer the question of whether s. 7 might sometimes mandate exceptions to the general rule that the state is entitled to every person's evidence. In my view, in certain circumstances such an exemption is justified and, indeed, is constitutionally required.
As I observed in P. (M.B.), supra, at p. 577, "[p]erhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution" -- the "case to meet" principle. This principle, I noted, "is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms" (p. 577). The use immunity provided by s. 13 of the Charter, together with the s. 7 based derivative-use immunity proposed by my colleague Iacobucci J., will protect witnesses against the possibility of their testimony being used directly as evidence against them, or being used indirectly as a means of gathering derivative incriminatory evidence. In many cases, these forms of immunity will provide adequate protection for the principle against self-incrimination. In some situations, however, forcing a witness to testify will violate the case-to-meet principle in a manner that cannot be remedied by an exclusionary rule. For example, the compelled testimony might reveal an accused's defence strategy, or bring to light crimes of which the state was previously unaware. In these latter cases, attempting to protect the principle against self-incrimination through use immunity and derivative-use immunity would indeed be, as my colleague Sopinka J. notes (at p. 625), "like closing the barn door after
the horses have escaped". As Iacobucci J. observes (at p. 535):
[I]f it be accepted that a person can always be compelled as a witness and that protection by way of evidentiary immunity will always be sufficient, then it must also be accepted that we have gone considerable distance toward diluting the principle of the case to meet without ever having said so. [Emphasis in original.]
In my view, the principles of fundamental justice require that, in addition to the exclusionary rule proposed by Iacobucci J., courts retain the discretion to exempt witnesses from being compelled to testify, in appropriate circumstances. I agree with my colleague Sopinka J. that the person claiming the exemption "has the burden of satisfying the judge that in all the circumstances the prejudice to his or her interests overbears the necessity of obtaining the evidence" (p. 630). I also share his view that the factors listed on pp. 630-31 will ordinarily need to be considered and weighed by the judge exercising this discretion. Of course, it follows from my general agreement with the position adopted by Iacobucci J. that I am of the view that witnesses who fail to satisfy the court that they should be excused from testifying will still receive the protection of the use immunity rules and derivative-use immunity rules he sets out in his reasons.
The assertion that the courts have the discretion to make exceptions to the general rule of compellability in situations where it would be unfair to force a person to testify is not, I would suggest, a novel proposition in Canadian law, even as it stood before the Charter. As Sopinka J. observes at p. 621, this Court's decision in Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, can be seen as having been informed by this view. My colleague notes that in Batary "the Supreme Court, speaking through Cartwright J. (no stranger to the principles of fundamental justice), considered that the circumstances in which the accused was called were unfair and therefore an exception could be made to the general principle of compellability". I agree with this interpretation of Batary, and with
Sopinka J.'s observation that Batary was expressly confirmed by a majority of this Court in O'Hara v. British Columbia, [1987] 2 S.C.R. 591, at p. 607. Even if, strictly speaking, the remarks of the majority in that case are obiter dicta, the statement in O'Hara represents the well-considered opinion of the Court and constitutes the applicable law on this point.
As an example of a situation where a judicial exemption from compellability would, in my view, be warranted, the following hypothetical case can be considered. Suppose that the members of a trade association in a particular industry met and agreed upon a scheme to fix the prices of the goods they produced, an indictable offence under s. 45(1) of the Competition Act, R.S.C., 1985, c. C-34. Suppose further that the Director of Investigation and Research obtained documents clearly indicating the persons involved and the nature of their involvement -- for example, an agreement to fix prices signed by the parties. If the Director commenced an inquiry and obtained subpoenas compelling the signatories to testify, it would, in my view, be open to the signatories to apply to the court for an exemption from compulsion to testify. In such a case, where the facts revealed that the Director had already concluded that an offence had been committed and had identified the parties to the offence, the court would be justified in concluding that forcing the suspects to testify would violate their s. 7 rights. In these circumstances, I believe the court would have the discretion to declare the subpoenas to be of no force and effect, thereby excusing the suspects from testifying.
In his reasons, Iacobucci J. recognizes the need for additional protection of the principle against slf-incrimination beyond evidentiary immunity in certain cases. As he notes (at p. 536): [T]he Charter's structure ... is founded upon the Crown's obligation to make a case, but it also assumes a general rule of compellability coupled with evidentiary
immunity. If, however, the Charter places no limits on when this structure can be invoked, then the Charter could, in fact, condone an inquisition of the most notorious kind. Such condonation would bespeak an impossible dualism. To ask a question by paraphrasing a concern voiced in Thomson Newspapers [Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425], at p. 606 (per Sopinka J.): are we prepared to arm the police with subpoena powers?
In my view, the answer to this question must be "no". Although I have the greatest respect for the view of my colleague Iacobucci J. that the fashioning of an acceptable response should be left to another day, I believe that it is incumbent upon this Court to provide guidance to the lower courts, which have been confronted with this problem in the past, and which will continue to face similar problems in the future. In my view, the judicial discretion recognized by Sopinka J. serves as an appropriate means of responding to Iacobucci J.'s concerns, which I share.
On the facts of this case, I agree with Sopinka J. that the trial judge erred in quashing the subpoena against J.P.M. on the basis of an absolute right to silence which made J.P.M. non-compellable. I further agree with the conclusions reached by Iacobucci J. on the other issues arising in this case, and would answer the constitutional questions as he proposes.
The judgment of La Forest, Cory, Iacobucci and Major JJ. was delivered by
IACOBUCCI J. -- This appeal principally asks a narrow question: is a person separately charged with an offence compellable as a witness in the criminal trial of another person charged with that same offence? To seek an answer to this narrow question, however, is to embark on a much broader inquiry. We are asked to contemplate fundamental issues like the principle against selfincrimination, the right to silence, the protection offered by the testimonial privileges, and the prospect of
evidentiary immunity. Where do these concepts fit in our criminal justice system, and how are they to be treated by the Canadian Charter of Rights and Freedoms?
I. Facts
The appellant, R.J.S., was charged with the indictable offence of break, enter, and theft, contrary to s. 348(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. J.P.M. was separately charged with the same offence. The Scarborough youth court had exclusive jurisdiction in respect of these alleged offences, inasmuch as the alleged offenders were both "young persons" as defined by the Young Offenders Act, R.S.C., 1985, c. Y-1, ss. 2(1) and 5(1). Charges against the two were separately laid because of an administrative procedure applicable at that court which directs that younger accused be tried in Phase One youth court, and the older accused in Phase Two.
J.P.M. was to be the Crown's main witness at the trial of R.J.S. However, after R.J.S. was arraigned but before he entered a plea, counsel for J.P.M. brought a motion to quash the subpoena which had been issued to compel J.P.M.'s testimony. The trial judge allowed the motion and quashed the subpoena.
The Crown proceeded with the trial against R.J.S. and called two witnesses: Isaac Chung, the owner of the business where the offence allegedly occurred, and Detective Constable Carter. Chung testified about the property which disappeared from his store and which the police later returned to him. Carter testified that R.J.S., whom he knew to be wanted in relation to an offence, arrived at the police station one day and turned over certain property to him. Carter said that he tagged the items he received from R.J.S. and placed them in the control of a property officer who did not testify at trial.
The defence called no evidence. After the Crown closed its case, defence counsel argued that
the Crown could not prove continuity in respect of the tagged property. In response, Crown counsel stated that "there is not enough evidence here to prove beyond a reasonable doubt that a break and enter has been committed and I'd ask Your Honour to dismiss the charges on that basis".
The trial judge dismissed the charges against R.J.S. The Crown appealed, and the Ontario Court of Appeal held that the subpoena issued against J.P.M. should not have been quashed: (1993), 12 O.R. (3d) 774, 61 O.A.C. 395, 80 C.C.C. (3d) 397, 21 C.R. (4th) 47, 14 C.R.R. (2d) 244. A new trial was ordered. R.J.S. appeals as of right to this Court pursuant to s. 27(1) of the Young Offenders Act and s. 691(2)(a) of the Criminal Code on a question of law alone. On this point, the Court in R. v. C. (T.L.), [1994] 2 S.C.R. 1012, subsequently held that such appeals as of right were not available under the Young Offenders Act. In the circumstances, the Court has granted leave nunc pro tunc.
II. Relevant Constitutional and Statutory Provisions Canadian Charter of Rights and Freedoms
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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;
- 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.
Canada Evidence Act, R.S.C., 1985, c. C-5
- (1) No witness shall be excused from answering any question on the ground that the answer to the 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 on 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 the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible 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 that evidence.
Criminal Code, R.S.C., 1985, c. C-46 686. ...
(4) Where an appeal is from an acquittal, the court of appeal may
(b) allow the appeal, set aside the verdict and
(i) order a new trial. . . .
III. Judgments
Ontario Court, Provincial Division
Bovard Prov. Div. J. accepted the argument made by counsel for J.P.M., namely, that the subpoena issued against J.P.M. infringed his Charter right to remain silent. In an oral decision, Bovard Prov. Div. J. stated that "[i]t's clear in our law that the accused is not obliged to disclose any kind of information or defenses to the Crown beforehand". He thoroughly reviewed Re Praisoody (1990), 1 O.R. (3d) 606 (Gen. Div.), 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam), and cases cited therein, and concluded that he was both bound and
persuaded by the logic of that decision. Bovard Prov. Div. J. held that to compel J.P.M.'s testimony would be to violate s. 7 of the Charter. He quashed the subpoena and later acquitted R.J.S. after Crown counsel conceded that its case could not meet the criminal standard of proof.
Ontario Court of Appeal (1993), 12 O.R. (3d) 774
J.P.M. did not participate before the Court of Appeal because the charge against him was stayed after R.J.S.'s acquittal. Carthy J.A. for the court noted, and counsel were agreed, that the change in J.P.M.'s status could not affect the issues on appeal. Carthy J.A. also noted that, although proper notices were not given to the Attorneys General, s. 5 of the Canada Evidence Act was at issue before him since the trial judge's decision failed to give effect to the language of that provision. In light of his Charter conclusions, however, Carthy J.A. did not regard the failure to give notice as important.
Carthy J.A. first reviewed the decisions of this Court in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, and R. v. Hebert, [1990] 2 S.C.R. 151. He stated that s. 7 of the Charter recognizes residual rights not recognized in either s. 11 or s. 13, but he said that such rights are not "absolute" and that "a balancing of interests is required" to determine their extent. In this regard, he contrasted the criminal trial setting to the investigatory setting.
Carthy J.A. noted that "[t]he right of an accused to remain silent at his or her trial has long existed side by side with the compellability of a witness who has been charged with the same offence but who will be tried separately" (p. 779). He indicated
that such compellability is the foundation for an accused person's ability to apply for a separate trial, which ability in part protects the accused's right to make full answer and defence, but which ability also ensures that justice will be done. Carthy J.A. reasoned that "attaining a true result on all the available evidence overshadows the marginal area of exposure of the witness that is not protected by s. 13 of the Charter" (p. 779).
Carthy J.A. also noted that an absolute right to silence could be manipulated by accused persons tried separately. He suggested that it would not be possible to distinguish between a subpoena issued by the Crown, and one issued by an accused person, for Charter purposes. He then noted two points made by counsel for R.J.S.: first, that a subpoena issued by an accused protects the right to make full answer and defence; second, that any right to silence must be protected at the moment of compulsion and not at a later trial.
According to Carthy J.A., the s. 7 structure proposed by counsel for R.J.S. would compel the court to uphold a subpoena issued on behalf of an accused, even though this would impose a breach of Charter rights upon a separately charged witness. Carthy J.A. suggested that, once a breach is imposed, only a stay or an assurance of immunity for the witness could remedy the breach. He held that this result "would clearly be an unacceptable consequence of any formula of fundamental justice and would encourage manipulation of the system by co-accuseds" (p. 780).
Carthy J.A. concluded by noting that a contrary result was reached in Praisoody, supra. However, he expressed "no view as to the correctness of that decision, depending as it does on a balancing in a different context than that of a trial" (p. 780), and instead expressed a preference for the result in R. v. Morra (1992), 11 O.R. (3d) 202 (Gen. Div.).
Carthy J.A. allowed the Crown's appeal and ordered a new trial.
IV. Issues
The appellant's notice of appeal to this Court states a question of law comparable to the narrow question posed at the outset. Therefore, only one question is squarely before this Court, and it can be stated in the following general terms:
Is a person separately charged with an offence compellable as a witness in the criminal trial of another person charged with that same offence, or would compellability in this context violate s. 7 of the Charter?
In answering this general question, regard will be had to the following constitutional questions stated on July 19, 1993:
1.[Does] s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, infringe[] s. 7 of the Canadian Charter of Rights and Freedoms?
2.If the answer to question 1 is affirmative, is the limitation one which is reasonable, prescribed by law, and demonstrably justified pursuant to s. 1 of the Charter?
In passing, however, I note that the parties contest two additional points which are necessarily incidental to the larger questions of law stated above. First, the Crown asks whether it is proper for R.J.S. to raise a right to silence or testimonial privilege which is personal to the witness J.P.M., as a ground of appeal. Second, R.J.S. asks whether it was appropriate for the Court of Appeal to order a new trial since the Crown chose not to call the property officer. I will return to these subsidiary issues at the end of these reasons.
V. Analysis
A. Introduction
The appellant's contention is that s. 7 of the Charter operates to prevent J.P.M. from being compelled as a witness in the appellant's criminal
trial. Although other sections of the Charter are invoked to support this contention, especially ss. 11(c) and 13, it is not suggested that these other sections have any direct role to play in precluding compellability per se. In other words, if the Charter is to keep J.P.M. off the stand, it will only be because of s. 7.
Section 7 establishes that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". An analysis under this provision can logically proceed in stages. First, it can be determined whether there exists a real or imminent deprivation of an interest or interests recognized in the section. Second, the relevant principles of fundamental justice can be isolated, and the deprivation can be measured against these principles to determine whether s. 7 has been infringed. I will consider each stage in turn.
Before doing so, however, it may be helpful to state my eventual conclusions up front. In particular, I will note immediately below that a statutory compulsion to testify engages the liberty interest of s. 7. However, I will proceed to suggest that the liberty interest is affected in accordance with the principles of fundamental justice. In this case, no principle of fundamental justice demands that J.P.M. should have a right to silence or a privilege against self-incrimination. That is, J.P.M. is properly compellable on the facts. Fundamental justice is satisfied because neither J.P.M.'s testimony, nor a limited class of evidence derived from his testimony, can be later used to incriminate him in other proceedings (save for proceedings in respect of perjury or for the giving of contradictory evidence).
These are conclusions which can and will, no doubt, be criticized because the issues involved are difficult and on which reasonable persons will differ. Indeed, if an unrestricted policy choice were available to design a system capable of protecting
Canadians against self-incrimination, one might design a system different from the one reflected in my conclusions; then again, one might not. However, as I will proceed to explain, I believe that a particular system of protection was consciously selected by those who framed the Charter. While I will repeatedly acknowledge other theoretical approaches to self-incrimination in these reasons, and while many such approaches are sustainable, it is my opinion that, at the end of the day, only one such approach finds favour in the language and structure of the Charter.
B. The Liberty Interest
Section 7 of the Charter is engaged by deprivations in respect of life, liberty, or security of the person. To date, this Court has recognized that an interest is subject to deprivation, in this context, if there is either an immediate or imminent threat to the interest, and, in this appeal, the interest at stake is liberty. For example, both imprisonment and an imminent threat of imprisonment constitute deprivations of the liberty interest: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and R. v. Vaillancourt, [1987] 2 S.C.R. 636.
With respect to the concept of liberty, it is germane to observe that the liberty interest may be engaged although there is no coincident deprivation in respect of the other s. 7 interests, life or security of the person: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Moreover, I observe that not every restriction on absolute freedom constitutes a deprivation of liberty for s. 7: Re B.C. Motor Vehicle Act, supra, at p. 524 (per Wilson J.), and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 785-86 (per Dickson C.J.).
It is in this context that the compulsion to speak must be considered. In Thomson Newspapers, supra, where this context was recognized, a majority of this Court held that such compulsion somehow engages the liberty interest. I use the word
"somehow" advisedly in the last sentence, since I believe the exact manner of its engagement was left unclear by Thomson Newspapers. As an initial task, therefore, I believe it is necessary to comment upon the relationship between the liberty interest and the compellability of a witness.
The provision challenged in Thomson Newspapers was s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C-23, which established, in part, the authority to compel testimony from "any person resident or present in Canada". That is, the appellants in Thomson Newspapers challenged a subpoena power. Like an ordinary subpoena power, the power invested in the Restrictive Trade Practices Commission was associated with the Commission's ability to enforce statutory compliance using "all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof": s. 17(1). In other words, the constitutional challenge mounted in Thomson Newspapers was directed toward a subpoena power enforceable by contempt proceedings.
Five members of this Court heard the appeal in Thomson Newspapers, and each wrote separate reasons. Of these five, four held that s. 17 of the Combines Investigation Act engaged the liberty interest, but these four split evenly on the question whether the subpoena power infringed fundamental justice. The fifth, Lamer J. (as he then was), reasoned that it was not appropriate to focus on the subpoena power at the expense of a direct constitutional challenge to s. 20(2) of the Combines Investigation Act. That provision, like s. 5(1) of the Canada Evidence Act, is silent on the question whether a person can be compelled to speak. It is a provision concerned only with the kind of speech which may be compelled.
The distinction between a compulsion to speak, and a compulsion to speak in response to particular questions, was well drawn by Lamer J. He stated (at p. 443):
In this case, no one is suggesting that the contempt power or the Criminal Code offences for which a recalcitrant witness may be prosecuted offend the principles of fundamental justice. What can only be argued, irrespective of the parties' approach, is that s. 17 violates s. 7 of the Charter to the extent that it enables a Commissioner to punish for contempt a witness who refuses to give an answer to a question put to him, on the ground that it may tend to incriminate him. Section 17 empowers generally to punish for contempt witnesses who refuse to answer. That does not violate s. 7. It is s. 20, in fact the first few lines of s. 20(2) which takes away the common law right to refuse to give incriminatory answers, that brings the refusal to answer within contempt and that really triggers the violation. [Emphasis in original.]
It was this distinction which motivated Lamer J. to resolve the appeal in Thomson Newspapers without regard for the compellability issue. In the absence of a direct attack on s. 20(2) of the Combines Investigation Act, Lamer J. refused to be led "into inferentially pronouncing upon s. 5(1) of the Canada Evidence Act", especially given that a challenge to s. 5(1) "would have attracted different interventions from the Attorneys General" (at p. 445).
Thus, the question which underlies the apparent disagreement in Thomson Newspapers asks whether the proper focus of attack in a case such as the present one is a subpoena power on the one hand, or s. 5 of the Canada Evidence Act on the other, the latter of which purports to abolish the common-law privilege against self-incrimination: see Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at p. 219, and Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 362. But does this question not promote a somewhat circular analysis? Perhaps it is not possible to determine the proper focus of attack before one determines how the
Charter will respond to problems of compelled speech.
On the one hand, a witness who claims a complete right to silence might legitimately challenge a subpoena power. In effect, such a witness denies the very essence of a subpoena, namely, the direction that a person can "be examined upon oath": Combines Investigation Act, s. 17(1). On the other hand, if the Charter protects the witness using any mechanism short of an absolute right to silence, then the focus logically shifts to whatever statutory authority compels the sworn witness to answer. Stated another way, the focus shifts from the fact of compelled speech, to the nature of compelled speech.
In Thomson Newspapers, supra, different Charter outcomes led naturally to different points of focus. Both Wilson and Sopinka JJ. held the state could not compel self-incriminatory speech in the circumstances there considered, such that s. 17 of the Combines Investigation Act, the subpoena power, was a proper and complete remedial target. Section 20(2), the abolition of the common-law privilege, although not irrelevant to their discussion, became irrelevant as a constitutional target once the power to compel testimony was rejected.
The opposite was true for L'Heureux-Dubé and La Forest JJ. In their reasons, the subpoena power targeted by the appellants prompted a primary rejection of an absolute right to silence, and a consequential analysis of the kind of speech which can be compelled from a witness who takes the stand. Although such a consequential analysis probably involved s. 20(2) of the Combines Investigation Act by necessary implication, in view of the conclusions L'Heureux-Dubé and La Forest JJ. reached about the propriety of provisions like s. 20(2), it was perhaps unnecessary for them to highlight its inferential role in their examination of the liberty interest.
Finally, Lamer J. objected to the structure of the appeal in Thomson Newspapers, but did not otherwise finally pronounce upon the proper target of a s. 7 challenge. Although he indicated that s. 20(2) should have been challenged, this position was premised upon the assumption "that it is and has long been in Canada a principle of fundamental justice that a witness may refuse to give an incriminating answer" (p. 442). If a different assumption had been made, namely, that a principle of fundamental justice suggests that there is an absolute right to silence, then s. 20(2) might naturally have been relevant for him in remedial terms. I reiterate that Lamer J. concerned himself with the structure of the appeal in Thomson Newspapers. He voiced his concern by making the first assumption noted above, but in no way precluded himself from adopting the latter.
All of which is to say that, in my view, a case which broadly asks questions about witness compellability tends to involve an encroachment upon liberty which is initially defined by a subpoena power, and which may be further defined by a provision like s. 5 of the Canada Evidence Act, but this further definition depends upon one's ultimate Charter conclusions. In view of the opinion I will ultimately render, I believe that s. 5 of the Canada Evidence Act is the more important focus in respect of the liberty-interest deprivation in this appeal, and it is that provision which is the subject of the constitutional questions dated July 19, 1993. Although no constitutional question has been stated in respect of the subpoena power, I regard that deficiency as of purely academic interest, first, because of the view I ultimately take of the case, and, second, because this appeal was heard along with British Columbia Securities Commission v. Branch 1 . Branch involves a direct challenge to a subpoena power. By consolidating these appeals,
sufficient notice was given to the Attorneys General regarding the kinds of provisions in jeopardy.
To conclude, I reiterate that Thomson Newspapers, supra, is authority for the proposition that a statutory compulsion to testify constitutes a deprivation of liberty. Thomson Newspapers in no way precludes the further refinement of this liberty-interest holding to embrace the concern articulated by Lamer J. in that case. A deprivation of liberty may arise by virtue of a compulsion to speak per se, but that deprivation may be particularized if one's approach to the Charter requires one to reach conclusions regarding the kind of speech which is compelled.
I note that if one particularizes the liberty-interest deprivation to include an analysis of the character of compelled speech, this refinement in no way changes the temporal focus of s. 7. If one examines the self-incriminatory character of speech, then one's attention is naturally drawn to the prospect of subsequent prosecution. However, this does not mean that the liberty interest is engaged in relation to that prospect. As A. W. Mewett has stated in "The Right to Silence" (1990), 32 Crim. L.Q. 273, at p. 274, "if it is true that being under compulsion to obey a subpoena is a deprivation of liberty, then the time to consider fundamental justice is at the time of the compulsion, not later when it may be too late". In other words, the encroachment upon liberty is complete at the moment of compelled speech, regardless of its character. D. Stratas, in The Charter of Rights in Litigation (1990), vol. I, has noted that an uncertainty which currently exists is "just how immediate a threatened deprivation of liberty must be" (p. 17-2.1). Inasmuch as a statutory compulsion to give oral testimony engages the liberty interest, it is unnecessary to resolve this uncertainty today. When J.P.M. challenged the subpoena in this case, he faced an imminent deprivation of liberty.
C. The Principles of Fundamental Justice
1. Introduction
The rights listed in s. 7 of the Charter are not guaranteed at large. Although J.P.M.'s liberty interest is engaged by the fact of testimonial compulsion, it does not follow that s. 7 will provide relief. J.P.M. cannot claim an abstract right to liberty. He can only demand that a deprivation of his liberty take place in accordance with the principles of fundamental justice. As Lamer J. stated in Re B.C. Motor Vehicle Act, supra, the principles of fundamental justice "set the parameters of that right" (p. 512).
In the discussion to follow, I will conclude that the principle of fundamental justice which is operative in the present appeal is the principle against self-incrimination. It is against this principle that the fact of testimonial compulsion must be measured. In reaching this conclusion, I acknowledge that I will largely follow the course already charted by Lamer C.J. in R. v. P. (M.B.), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229.
In Jones, Lamer C.J. dissented on the question whether dangerous offender proceedings serve to "incriminate" further a person who has already been convicted of an offence. I regard his dissent as limited to that issue, such that his discussion of self-incrimination otherwise generally reflects Canadian law. In particular, I note that Lamer C.J. in Jones reviewed disparate jurisprudential topics and concluded that "the principle against self-incrimination is a principle of fundamental justice and this Court has, at least implicitly, recognized its status as such" (p. 257). To this point I would merely add that the Chief Justice's majority opinion in P. (M.B.), supra, discusses a point of criminal procedure not considered in Jones, and gives explicit recognition to the principle against self-incrimination (p. 577).
Thus, I acknowledge that P. (M.B.) and Jones have, so to speak, cleared the path I will follow in these reasons. However, I do not believe it would be sufficient for me simply to cite those cases here and move on. In all of its aspects, this appeal is intimately associated with the idea of self-incrimination broadly conceived. Moreover, the various protections against self-incrimination promote troubling terminological confusion. Ratushny has stated:
The idea of the right against self-incrimination has been expressed in a variety of ways: "privilege against self-incrimination", "right to remain silent", "nemo tenetur seipsum prodere", "nemo tenetur seipsum accusare", "nemo tenetur armare adversarum contra se". More recently, the Canadian Bill of Rights adopted the term "self-crimination". No useful purpose is served in attempting to ascribe a precise meaning to one of the phrases in comparison to another. The scope of this inquiry will encompass all matters which could be said to be related to the concept of self-incrimination in its broadest sense so that all of these phrases are enveloped.
(Self-Incrimination in the Canadian Criminal Process (1979), at p. 2.)
Like Ratushny, I must embark upon a discussion of various matters "which could be said to be related to the concept of self-incrimination in its broadest sense", and, in doing so, I wish to heed the admonition that one "bears a heavy responsibility to be as precise as possible" when one discusses self-incrimination: D. M. Paciocco, Charter Principles and Proof in Criminal Cases (1987), at p. 539. To achieve both goals, I thus consider it advisable to discuss the principle against self-incrimination in general terms at the outset, notwithstanding the helpful direction of P. (M.B.), supra, and Jones, supra.
To commence my analysis, however, I note that in Re B.C. Motor Vehicle Act, supra, Lamer J. set forth the guiding thought that "the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system" (p. 512). Therefore, to explain why the
principle against self-incrimination is a principle of fundamental justice, I should examine the basic tenets of our legal system. These tenets may be reflected in the common-law and statutory environment which exists outside of the Charter, they may be reflected in the specific and enumerated provisions of the Charter, or they may be more expansive than either of these: see Hebert, supra, at pp. 162-64. To begin my analysis, however, I think it will be sufficient for me to examine first self-incrimination protections apart from the Charter and then to turn my attention upon the Charter itself. Once that is done, I will be better placed to determine what the principle demands in respect of a statutory testimonial compulsion.
2. Protections Against Self-Incrimination Outside of the Charter
The protections against self-incrimination which exist apart from the Charter compose a topic of enormous scope. Indeed, before the Charter was proclaimed, at least one entire book investigated these protections: see Ratushny, Self-Incrimination in the Canadian Criminal Process, supra. My goals are more modest, however, and the discussion to follow will embrace three subjects. First, I will review the history of the testimonial privileges. This review will canvass the common-law privilege against self-incrimination for witnesses, the common-law non-compellability of an accused person, and the status of these concepts in other jurisdictions and in pre-Charter Canada. Second, I will review the confessions rule with a view to determining the extent to which the confessions rule is relevant to a principle against self-incrimination. Finally, I will consider policy arguments which have been advanced to account for these protections.
(a) The Testimonial Privileges
I cannot begin to comment upon the testimonial privileges without confining the inquiry. As Professor Mewett has rightly admonished, "[p]erhaps no phrase is bandied about with more imprecision and with more unawareness of its legal and social
significance than the privilege against self-incrimination": "Law Enforcement and the Conflict of Values" (1970), 12 Crim. L.Q. 179, at p. 186. The first point to note, therefore, is that I discuss here only the privileges against self-incrimination, and not, except by implication, the larger principle against self-incrimination which otherwise dominates my s. 7 investigation.
The privilege and the principle must be kept distinct. In Thomson Newspapers, supra, Sopinka J. stated that "[a] privilege is an exclusionary rule of evidence which is appropriately asserted in court" (p. 599); see also, Hebert, supra, at p. 195. In other words, a privilege is an evidentiary rule which operates in court to render otherwise relevant and probative evidence inadmissible, generally for policy reasons: see R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 288. The principle is something else. In Jones, supra, Lamer C.J. isolated the critical point when he stated: "The principle is a general organizing principle of criminal law from which particular rules can be derived. . . . The privilege is merely one rule that has been derived from the principle" (p. 249 (emphasis in original)).
I proceed, then, to consider only the common-law privilege against self-incrimination, along with its origins and modern status. As I will describe below, the privilege embraces two different yet related rules: first, the privilege of a witness not to answer questions which might tend to incriminate that witness; second, the non-compellability of an accused person.
To search for the origins of the privilege against self-incrimination is to embark upon a perilous journey. Dean Wigmore introduced the privilege's "long story" by commenting upon the "complicated task" ahead of him, an understatement which should stand as a warning to those who lack Wigmore's formidable expertise and skills: Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), [sect ]2250, at p. 269. It is a warning that I heed; even
more, it is a warning which makes me wonder whether the historical journey is worth the price.
In Thomson Newspapers, Wilson J. relied upon Wigmore's analysis to suggest that the privilege against self-incrimination has its origins in "a revulsion against the practices of the courts of the Star Chamber and the High Commission in the seventeenth century" (p. 471). It is probably fair to state that this account rests upon an emotional touchstone of the common law, embracing as it does the facts of Lilburn's trial: The Trial of John Lilburn and John Wharton, for Printing and Publishing Seditious Books (1637), 3 How. State Tr. 1316. In Wigmore's account of that trial, Lilburn offers these stirring words ([sect ]2250, at p. 283):
I am not willing to answer you to any more of these questions, because I see you go about by this examination to ensnare me; for, seeing the things for which I am imprisoned cannot be proved against me, you will get other matter out of my examination; and therefore, if you will not ask me about the thing laid to my charge, I shall answer no more.
Wilson J. in Thomson Newspapers, again in reliance upon Wigmore, describes how Lilburn's objection was not aimed at the mere possibility of self-incriminatory speech, but rather at the lack of specificity in the indictment he faced. Wilson J. suggests, however, that "through the effluxion of time, the underlying rationale for the rights became blurred" (p. 471), such that a much broader privilege against self-incrimination was born.
In questioning whether this historical journey is worth its price, I do not in any way impugn the approach of Wigmore or of Wilson J. in Thomson Newspapers. Rather, I simply believe that an analysis of the privilege's origin is more amenable to an historical inquiry than to a legal one. In this regard, I note that there are at least three competing explanations for the development of the privilege against self-incrimination, one of which postulates that the privilege was available to witnesses
long before Lilburn's trial: M. R. T. MacNair, "The Early Development of the Privilege against Self-Incrimination" (1990), 10 Oxford J. Legal Stud. 66. The point is this: as I will discuss in greater detail below, policy explanations for rules against self-incrimination have arisen largely as ad hoc developments in our law, and one should not be misled into adopting a policy explanation in toto simply because the explanation fits well with an emotional view of history which is not, itself, susceptible to final proof.
Therefore, the more useful investigation does not attempt to define the privilege against self-incrimination as a product of certain historical forces. Rather, it attempts only to define the rules which developed at common law, since rules can be known with some certainty. By adopting this approach, it becomes quickly apparent that the focus should be on that common-law rule which recognizes a privilege against self-incrimination for witnesses who are compelled to testify. Lamb v. Munster (1882), 10 Q.B.D. 110, at pp. 112-13, is a frequently cited authority for the common-law privilege:
[T]he privilege extends to protect a man from answering any question which "would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge". . . . The extent of the privilege is I think this: the man may say, "If you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth."
The privilege is a privilege not to give answers which tend to incriminate the witness. It is a dormant giant who can be awakened in proceedings which are not perceived to involve its express statutory abridgement: see, e.g., Bell v. Klein, [1954] 1 D.L.R. 225 (B.C.S.C.), and Brown v. Hooper (1885), 3 Man. R. 86 (Q.B.).
Moreover, it is true that the common-law privilege did not simply protect a witness's testimony. Derivative evidence, that is, evidence which may come to light as a result of a compelled disclosure, was implicitly protected because a witness could claim the privilege not only in relation to facts which were directly incriminatory, but also in relation to so-called "clue facts". Wigmore defined a "clue fact" as being a fact "which increases the probability that a subordinate fact will be discovered and thus that an ultimate fact, and the crime, will be proved" (supra, [sect ]2260, at p. 371). Although his summary notes that some early cases rejected clue-fact protection, it also notes that most modern cases do not (p. 372).
For the witness, then, the privilege operated as a potentially broad protection which could be asserted on the stand. With respect to the accused person, however, the common law took a different approach. This is so because the accused had more than simply a right to refuse to give self-incriminatory answers. The accused could refuse testimony altogether. The accused's right was a right against compellability. To delve once more into legal history, it may be that the accused's non-compellability can be linked to the pre-17th century status of accused persons. At that time, an accused could not take an oath in the common-law courts because the oath was a decisive thing. The accused was to be tried by the oaths of the jurors, not by his own: Wigmore, supra, [sect ]2250, at p. 285.
Whatever its origin, however, non-compellability as an aspect of the privilege against self-incrimination appeared long ago as a judge-made rule. But this extension of the rule was far from dramatic. Ratushny, supra, has stated (at p. 173):
[I]n the second half of the seventeenth century, the rule came to be established, in judicial decisions, that a person could not be compelled to be a witness in his trial even where a proper accusation was present. The exact process by which this rule developed is difficult to pinpoint. However, the extension of the privilege would
not be difficult since it had little practical consequence for the accused. The accused was not competent as a witness until 1898. In other words, he needed no protection against being compelled to testify in the common law courts. He could not testify even if he wished to do so. [Emphasis in original.]
It is perhaps the interaction between the privilege against self-incrimination and the testimonial incompetence of accused persons in the common-law courts which led to the somewhat anomalous rule of non-compellability.
In particular, it is, at first blush, anomalous to equate a rule of non-compellability with a testimonial privilege, since a privilege by definition is an exclusionary rule ordinarily asserted on the stand. As Wigmore stated with regard to this problem, "the prosecution could nevertheless on principle have a right at least to call [the accused] to be sworn because, as with an ordinary witness, it could not be known beforehand whether he would exercise his privilege" (supra, [sect ]2268, at p. 406 (emphasis in original)). With rare exceptions (e.g., R. v. Pantelidis, [1943] 1 D.L.R. 569 (B.C.C.A.)), however, the accused's privilege against self-incrimination at common law has not required assertion by the accused. The privilege was embodied in the expanded rule of non-compellability.
To summarize briefly, I note that, in Canada, the privilege against self-incrimination at common law means only two things: the privilege claimable by a witness, and the non-compellability of an accused person. That is, the privilege is limited by its testimonial character. This was definitively established by Marcoux v. The Queen, [1976] 1 S.C.R 763, where it was argued that an accused's participation in a police line-up engaged the privilege. Dickson J. (as he then was) rejected the argument in these terms (at pp. 768-69):
The limit of the privilege against self-incrimination is clear. The privilege is the privilege of a witness not to answer a question which may incriminate him.
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. . . . 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. . . .
This point has been reiterated on a number of occasions: e.g., Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 683 (per Lamer J.); Thomson Newspapers, supra, at p. 599 (per Sopinka J.); Hebert, supra, at pp. 173 (per McLachlin J.) and 195 (per Sopinka J.).
To state, however, that the common-law privilege against self-incrimination can be defined by two rules in Canada, is not to say that the Canadian position has been fully explored. Indeed, in order to understand the Canadian experience, it is essential for me to examine the statutory intervention which has affected these rules.
In this regard, I first note that the non-compellability rule has been largely unaffected by history. This lack of interference has not been universal, inasmuch as there are instances of its statutory abridgement: e.g., R. v. Fee (1887), 13 O.R. 590 (Ch. Div.); see also S. Schiff, Evidence in the Litigation Process (4th ed. 1993), vol. 2, at pp. 1343-44. However, abridgement has been rare, and, more to the point, the history of statutory interference with the witness's privilege saw the accused's privilege expressly affirmed by Parliament.
To explain this last point, I cite (in part) the original forerunner of s. 5(1) of The Canada
Evidence Act, namely, s. 4 of The Canada Evidence Act, 1893, S.C. 1893, c. 31. That provision read:
- Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness, whether the person so charged is charged solely or jointly with any other person.
On its face, s. 4 purported to affect only the testimonial competence of accused persons. However, in Gosselin v. The King (1903), 33 S.C.R. 255, this Court held that s. 4 rendered accused persons not only competent, but also compellable by the prosecution. In reaching this conclusion, the Court was influenced by the wording of an English statute, the Criminal Evidence Act, 1898 (U.K.), 61 & 62 Vict., c. 36, s. 1, which made accused persons and spouses competent witnesses "for the defence". The Court considered the absence of these three words in the Canadian Act to be important. Notably, however, the brief threat to non-compellability posed by Gosselin was undone when these words were added by amendment a few years later: An Act further to amend The Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1. In the result, as Ratushny has obliquely noted, "the non-compellability of an accused was specifically adopted in Canada by the implied incorporation of a common law principle": E. Ratushny, "Is There a Right Against Self-Incrimination in Canada?" (1973), 19 McGill L.J. 1, at p. 30 (emphasis in original).
Thus, it can be properly said that pre-Charter Canada witnessed the retention of the common-law privilege against self-incrimination as it applied to accused persons. However, the same is not true of the witness's privilege since the Canada Evidence Act, quoted above, abolished this privilege in Canada in so far as it could (the effect was made largely complete by complementary provincial provisions): see Di Iorio, supra, and Dubois, supra. In its place, the Act afforded witnesses a limited form of immunity applicable not at the moment of compelled testimony, but rather in
respect of subsequent proceedings. This approach survives in s. 5(2) of the Canada Evidence Act. Pursuant to s. 5(2), if protection is claimed by a witness, that witness's self-incriminatory answers cannot "be used or admissible in evidence against [the witness] in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury".
The Canadian approach can be contrasted to the approach of other systems. Most obviously, it can be contrasted to the constitutional status of the privilege against self-incrimination in the United States. In that country, the Fifth Amendment to the United States Constitution provides in part that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself". That language, as Wigmore has discussed in depth, "protects a witness as well as an accused party": supra, [sect ]2252, at p. 326. That is, in the United States, both the accused person and the witness benefit from a constitutionalized version of the common-law privilege against self-incrimination. It is this constitutional status which has driven the American experience with immunity statutes and the concepts of simple-use, derivative-use, and transactional immunity. These are matters which I will further address below.
The Canadian approach can also be contrasted to the approach in England. In that country, there is no statutory abrogation of the common-law privilege comparable to s. 5(2) of the Canada Evidence Act. However, it does not follow that the common-law status of the testimonial privileges has persisted unmodified in that country. In Thomson Newspapers, supra, after Wilson J. completed her review of the common-law privilege against self-incrimination, she asserted that "[t]his remains the law of England to this day" (p. 473). I agree with her assertion as far as it goes -- that is, I agree that the common-law privilege remains available in England -- but I would not go so far
as to imply that the privilege is uniformly available. In J. D. Heydon, "Statutory Restrictions on the Privilege Against Self-Incrimination" (1971), 87 L.Q.R. 214, the author considers a variety of statutory compulsions which have historically abrogated the common-law position. Heydon states (at pp. 215-16):
The problem is of some practical importance, for statutes of the type to be considered are common. They apply to the public examinations of bankrupts and of company officials in winding-up proceedings; to officials investigating liability to taxation; to inquiries into bribery and other election offences; to inquiries by parliamentary committees; to police questioning with respect to certain offences; to investigations of such matters as gambling, and corrupt war-contracting; and in many other areas as well.
Moreover, Heydon describes how these statutory inroads have not been accompanied by uniform immunity protections. In the result, I regard the English position as resting somewhere in between the Canadian and American positions, inasmuch as the common-law privilege has not always been available in England, and inasmuch as it has not always been replaced by a co-extensive immunity.
The spectrum of national approaches demonstrates to my mind the importance of focusing on the Canadian system in any examination of the common-law testimonial privileges. Some are too quick to assume that the Canadian system is Draconian when compared to the American and English models. But surely the constitutional status of the American system, and the historical complexity of the English system, are not matters to be lightly ignored. And, moreover, we should not quickly assume that the balance of power in Canada has been tipped in favour of the state regarding witness compellability. In the report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969), at p. 68, there exists the following much-quoted statement regarding Canadian immunity protection:
A searching examination may, however, elicit facts or clues which enable the case to be independently proved. Thus the abolition of the privilege of a witness to refuse to answer on the ground that his answer may tend to incriminate him places an additional and powerful weapon in the hands of law enforcement. [Emphasis in original.]
The absence of clue-fact protection in pre-Charter Canada is a legitimate point of focus. However, the absence of this protection does not necessarily suggest that Canada has been unsuccessful in maintaining a healthy degree of protection for witnesses. It is intriguing to note, for example, that there is quantitative support for the idea that s. 5(2) of the Canada Evidence Act more effectively protects witnesses than does the common-law privilege: Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 439. And, finally, Canada's approach to the common-law privilege should not be treated as a theoretical anomaly. Various positions abound. Testimonial privileges, non-compellability, and related issues like pre-trial silence, were all subject to the will of Parliament in the pre-Charter era: Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, at p. 258 (per Estey J.). It is no surprise, therefore, to discover Canadian academics and judges debating such points as whether accused persons should have been made compellable witnesses for the prosecution in the decade before the Charter's proclamation: see E. Haines (View I), and A. Maloney and P. V. Tomlinson (View II), "Future of the Law of Evidence -- The Right to Remain Silent -- Two Views", in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 321. And, equally, although I have focused on the testimonial privileges here, it is germane to note that the question of pre-trial silence has prompted a range of proposals, some of which are at extreme odds with the Canada Evidence Act: see, e.g., Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33; and S. Greer, "The Right to Silence: A Review of the Current Debate" (1990), 53 Mod. L. Rev.
- Clearly, ideas of self-incrimination have prompted diverse legislative responses.
I will return below to such questions of philosophy. For the present, it is sufficient to conclude that the common law recognizes a privilege for witnesses against self-incrimination, along with a privilege for accused persons in the form of testimonial non-compellability. These are the testimonial privileges. In Canada, the latter rule remains largely untouched by statute, whereas the former has undergone significant theoretical modification which makes inter-jurisdictional comparisons difficult. Having made these points, I turn to consider briefly a related issue: the confessions rule.
(b) The Confessions Rule
In Jones, supra, Lamer C.J. discussed the confessions rule only briefly before concluding that the rule is "grounded in the principle against self-incrimination" (p. 252). The confessions rule, of course, operates to exclude pre-trial statements made to persons in authority which are not made freely and voluntarily. The traditional rule derives from Ibrahim v. The King, [1914] A.C. 599 (P.C.), and has been the subject of many appeals to this Court, most recently in R. v. Whittle, [1994] 2 S.C.R. 914. In Jones, Lamer C.J. did not elaborate upon his conclusion. For the sake of clarity, I consider it advisable to do so here.
In particular, any effort to rationalize the confessions rule using a self-incrimination penumbra must be historically qualified. That is so because the confessions rule only partakes of a self-incrimination principle to the extent that it is founded upon more than a concern for the trustworthiness of statements. Wigmore has compared the confessions rule to the common-law privilege against self-incrimination in these terms:
A distinction of the two rules on grounds of principle is no longer easy. The original confession rule -- that involuntary confessions are excluded on grounds of untrustworthiness -- was obviously based on principle almost entirely unrelated to that of the privilege. . . . Until recently, the relationship between the privilege and the confession rule could be found only in the general spirit of protection and caution which our legal system shows toward an accused. . . . There was no more reason for linking the privilege with the confession rule than with the others. [Emphasis in original.]
(Wigmore, supra, [sect ]2266, at pp. 401-2.)
In the passage above, Wigmore was speaking of common-law systems generally, and of the United States in particular. In Canada, a rationale for the confessions rule extending beyond trustworthiness has not always been easy to locate: see Ratushny, Self-Incrimination in the Canadian Criminal Process, supra, at p. 98.
Indeed, the difficulty of this search occupied McLachlin J.'s attention in Hebert, supra. After a review of the authorities, she was left to conclude that, as a result of R. v. Wray, [1971] S.C.R. 272, the fairness rationale for the confessions rule in pre-Charter Canada created only "a strong and continuing undercurrent of dissent" (p. 172). While she suggested that the common-law confessions rule is associated with "the right to freely choose whether or not to make a statement to the police" (p. 173), she explained this association in the following terms (at p. 173):
This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant. Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.
In reliance upon these considerations, McLachlin J. proceeded to postulate that there is a principle of fundamental justice within s. 7 of the Charter to the effect that "a person whose liberty is placed in jeopardy by the criminal process cannot be
required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent" (p. 175). But, and I highlight this point, she indicated that this right to silence under the Charter "must extend beyond the narrow view of the confessions rule which formed the basis of the decision of the majority of this Court in Rothman" (p. 175 (emphasis added)). Although she proceeded to align the confessions rule with this right (at pp. 181-82), thus demonstrating a kind of synergy between the common-law and Charter jurisprudence, her review of history conclusively demonstrates that during much of Canada's history, the confessions rule had little to do with ideas of self-incrimination.
In this respect, then, it may be misleading to assert, in unqualified terms, that the confessions rule is grounded in a principle against self-incrimination. While this is true in a modern sense, it is only true historically if one adopts the language used by McLachlin J. in Hebert. That is, it is historically true in the sense that protection against self-incrimination is a recurring theme, or even a "leitmotif" (p. 167), in the confessions rule cases, as opposed to an organizing principle which can explain the past decisions of this Court. As stated by Sopinka J. in Whittle, supra, with reference to the reliability rationale, "a strong undercurrent developed which also supported the rule in part on fairness in the criminal process" (p. 932). In this case, we should not confuse the undercurrent with the current itself. Nor should we overlook the fact that the extension of the common-law position in Hebert was perhaps motivated by conditions existing within the Charter itself, as I will explain below.
(c)Policy
I have so far discussed the protections against self-incrimination which exist apart from the Charter, but I have not discussed the policy basis for these protections in any significant way. I have
adopted this approach intentionally. To the extent that we cannot know for certain how and why these protections first arose in history, any policy justification for the existing state of affairs is necessarily ad hoc. In pre-Charter terms, the rules were not derived from the principle. It was the other way around: see generally Ratushny, Self-Incrimination in the Canadian Criminal Process, supra.
Which is not to say that the policy basis of the protections is irrelevant. On the contrary, as will become apparent later, the same policy basis may explain protections against self-incrimination which exist in the Charter itself. In other words, I choose to discuss policy at this stage of the analysis, not because pre-Charter policy considerations can necessarily be distinguished from the policy basis of Charter rights, but rather because I wish to emphasize that, prior to the Charter, any self-incrimination policy could do nothing more than partly explain the state of Canadian law. Wigmore, whose discussion has been fairly characterized as "[p]erhaps the most comprehensive and balanced survey of the policy basis" (Ratushny, Self-Incrimination in the Canadian Criminal Process, supra, at p. 7), offered this introduction:
There is no agreement as to the policy of the privilege against self-incrimination. This is partly because there is no "the" privilege. It is many things in as many settings. The privilege is a prerogative of a defendant not to take the stand in his own prosecution; it is also an option of a witness not to disclose self-incriminating knowledge in a criminal case, and in a civil case, and before a grand jury and legislative committee and administrative tribunal. It is alleged by some to apply to suppress substances removed from the body, to confessions, and to facts tending to disgrace. . . . Suggestions as to the policy of "the" privilege are lurking in all of these settings and more. [Cross-references omitted.]
(Wigmore, supra, [sect ]2251, at pp. 296-97.)
I have already noted that, in Canada, the common-law privilege against self-incrimination has a testimonial character, such that Wigmore's
reference to bodily substances can be set aside: Marcoux, supra. Similarly, I have qualified the proposition that there has always been a clear relationship between the Canadian confessions rule and a principle against self-incrimination. And, of course, I have noted that the privilege itself was legislatively transformed in this country over a century ago.
These factors notwithstanding, it is fair to suppose that Wigmore's discussion of policy retains a relevance for Canada. The rule of an accused's non-compellability retains its common-law truth, the confessions rule has always had an undercurrent related to the common-law privilege, and while the privilege has been abrogated in Canada, there is good reason to believe that the offsetting immunity protection was intended to respond to the same policy as the privilege it replaced. What, then, is this policy?
Wigmore's discussion advanced twelve possible justifications for the privilege against self-incrimination (broadly conceived); see also, Heydon, supra, at pp. 217-21; and Schiff, supra, at pp. 1344-46. Wilson J. in Thomson Newspapers, supra, quoted all of these (at pp. 477-78). Suffice it to say that, of the twelve justifications, Wigmore identified two fundamental ones:
The first is to remove the right to an answer in the hard cores of instances where compulsion might lead to inhumanity, the principal inhumanity being abusive tactics by a zealous questioner.... The second is to comply with the prevailing ethic 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, supra, [sect ]2251, at p. 318.)
In keeping with the approach adopted by Paciocco, supra, I think it is helpful, whenever possible, to discard as irrelevant policy justifications which do not inform a given topic. Accordingly, since we are dealing here with the topic of statutorily compelled testimony, I leave to one side the policy justification associated with inhumanity. In modern
Canada, abusive tactics have little to do with testimonial compulsion authorized by statute.
This leaves for consideration only one policy justification, namely, the principle of sovereignty embodied in the idea that individuals should be left alone in the absence of justification, and not conscripted by the state to promote a self-defeating purpose. I agree with the following statement made by Wilson J. in Thomson Newspapers, supra, at p. 480:
The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.
To use language which will appear again in my analysis of the Charter, the policy justification for the common-law protections rests upon the idea that the Crown must establish a "case to meet". The ad hoc justification comes to reflect a concern often voiced historically, the idea "that someone is going to start `poking about in the speculation of finding something chargeable'": Mewett, "Law Enforcement and the Conflict of Values", supra, at p. 188.
Thus, it is clearly an abhorrence for self-incrimination which is discernable. This abhorrence has taken on many a Latin visage in the cases, including nemo tenetur seipsum accusare and nemo tenetur seipsum prodere (essentially, a person shall not be compelled to betray or accuse the self). In passing, however, I would highlight that these Latin maxims have a checkered past, and tend to lead once again into the troubled realm of the legal historian: see Wigmore, supra, [sect ]2250, at pp. 268-69, note (2), and at pp. 287-88; Heydon, supra, at p. 216; Ratushny, Self-Incrimination in the Canadian Criminal Process, supra, at p. 169; and, MacNair, supra, at pp. 78-79. Mewett, for example, characterizes the latter maxim as "Coke's usual facile adoption of a convenient Latin tag": "Law Enforcement and the Conflict of Values", supra, at p. 187. Moreover, since I am investigating policy in a discussion ultimately directed
toward identifying the principles of fundamental justice, I shy away from these maxims because Dickson J. in Marcoux, supra, bluntly limited their scope in respect of the testimonial privileges by stating (at p. 768):
The limit of the privilege against self-incrimination is clear. The privilege is the privilege of a witness not to answer a question which may incriminate him. That is all that is meant by the Latin maxim nemo tenetur seipsum accusare, often incorrectly advanced in support of a much broader proposition.
See also the reasons of Sopinka J. in Thomson Newspapers, supra, at p. 599. To state the point more simply, I distinguish between these maxims and the policy justification I have identified.
In conclusion, I find that the protections existing apart from the Charter reflect a basic distaste for self-conscription. The state, and not the accused, should be expected to produce a case. As an ad hoc explanation, however, this case-to-meet principle necessarily incorporates, or permits, those deviations from it which arose pre-Charter. It does not rationalize them. To adopt the refrain from Hebert, supra, the principle has not always been ascendant. In particular, as I have described it above, the principle recognizes individual sovereignty subject to the proposition that the state may have justification to interfere. I will consider the scope of that justification below, which in this context equates with the demands of fundamental justice, after I have introduced the protections of the Charter.
3. Protections Against Self-Incrimination Within the Charter
Experience with the Charter to date reflects a concern for a principle against self-incrimination which builds upon the discussion above. A concern for that principle is evident in this Court's treatment of the enumerated protections in ss. 8-14 of the Charter, and it can be seen to operate as a
unifying principle in Hebert, supra, one which is capable of justifying residual rights. I turn first to consider the enumerated protections in the order they appear.
According to s. 10(b) of the Charter, "[e]veryone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right". In succinct terms, Lamer C.J. in Jones, supra, described how this Court's jurisprudence on s. 10(b) implicitly recognizes a concern for self-incrimination. Lamer C.J. stated (at pp. 254-55):
Wilson J. wrote in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, that the "right (to counsel), as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms, is clearly aimed at fostering the principles of adjudicative fairness". I then wrote in R. v. Collins, [1987] 1 S.C.R. 265, at p. 284, that "one of the fundamental tenets of a fair trial (is) the right against self-incrimination". The purpose of s. 10(b), it can be concluded, is the fostering of the right against self-incrimination. Or, as L'Heureux-Dubé J. said more directly in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 539:
The right to counsel is primarily aimed at preventing the accused or detained person from incriminating herself. Thus the main concern would be with coerced or uninformed confessions. In such circumstances, the accused would be manufacturing the evidence against herself. This is something which, in the interests of fairness, the right to counsel would seek to protect.
To this informative discussion, I can add nothing of consequence.
According to s. 11(c) of the Charter, "[a]ny person charged with an offence has the right . . . not to be compelled to be a witness in proceedings against that person in respect of the offence". This provision gives constitutional recognition to the rule of non-compellability which existed at common law, and which, as described above, was reaffirmed by Parliament in a 1906 amendment to The Canada Evidence Act, 1893. It is not surprising,
therefore, that this Court has recognized in Charter terms the same policy justification for s. 11(c) which, as I will discuss below, was advanced to account for the common-law rule. In R. v. Amway Corp., [1989] 1 S.C.R. 21, this Court was asked whether a corporation could claim the protection of s. 11(c). In response, Sopinka J. stated (at p. 40):
Applying a purposive interpretation to s. 11(c), I am of the opinion that it was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth. Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role.
Sopinka J. proceeded in Amway to cite with approval a passage which suggests that a corporation should not be regarded as a "witness" because the case-to-meet principle cannot benefit corporations in any meaningful way. Corporations do not suffer affronts to individual dignity.
According to s. 11(d) of the Charter, "[a]ny person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". In my view, both the presumption of innocence and the fair-hearing guarantees of s. 11(d) are relevant to a principle against self-incrimination. With respect to the presumption of innocence, Dickson C.J. stated in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 120:
The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.
What is this statement, if not an assertion of the case-to-meet principle? The presumption of innocence operates to ensure that individuals are left in peace until the Crown establishes a prima facie case, and no sooner than that should a practical
compulsion to testify arise: P. (M.B.), supra, at p. 579.
A not dissimilar kind of protection arises in respect of the duty of Crown disclosure. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, Sopinka J. defined this duty, and related it to the accused's right to make full answer and defence, which right has attained constitutional importance under s. 7 of the Charter; see also R. v. Egger, [1993] 2 S.C.R. 451, at p. 466. However, inasmuch as this right is intimately associated with the fairness of trial proceedings themselves, it might also be considered under s. 11(d), at least for present purposes. In this regard, I note Sopinka J.'s statement in Stinchcombe which contrasts the Crown's duty to the obligations of the defence, in so far as "the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution" (p. 333). The absence of any obligation to assist the Crown in the creation of a case, here recognized in the context of Crown disclosure, again complements the principle against self-incrimination.
Section 13 of the Charter falls next to be considered. That provision provides 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, except in a prosecution for perjury or for the giving of contradictory evidence". Since s. 13 will be the subject of further comment below, it is sufficient at this stage to note that, regardless of what it protects or what the Charter might additionally demand, s. 13 clearly responds to a self-incrimination concern. In Dubois, supra, the leading case on s. 13 of the Charter, ss. 11(c), 11(d) and 13 were united by Lamer J. in the following passage (at p. 358):
[T]he 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.
By preventing the subsequent use of a witness's compelled testimony, s. 13 offers the witness some protection against being forced to create a case to meet.
In passing, I observe that these same ideas find expression beyond the specifically enumerated protections in ss. 8-14 of the Charter. With respect to s. 24(2) of the Charter, Lamer C.J. observed in Jones, supra, at pp. 255-56:
Evidence is generally inadmissible under s. 24(2) if it would bring the administration of justice into disrepute. Evidence will tend to bring the administration of justice into disrepute if it renders the trial process unfair. Evidence renders the trial process unfair if it is obtained, after a violation of the Charter, by conscripting the accused against himself (that is, by using evidence that could not have been obtained but for the participation of the accused in the construction of the evidence); "(t)he use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination" (Collins, at p. 284).
It is not only logical, but also desirable, for the jurisprudence under s. 24(2) to evolve with regard to a principle against self-incrimination.
Finally, leaving aside the enumerated protections and s. 24(2) of the Charter, I consider s. 7, a provision which is especially instructive in respect of the principle against self-incrimination. In Thomson Newspapers, supra, this Court held that s. 7 may contain residual protections capable of extending beyond ss. 11(c) and 13. No agreement emerged in Thomson Newspapers regarding the availability or scope of such residual protections, but in Hebert, supra, a residual role for the provision was recognized.
As already discussed, McLachlin J. in Hebert postulated a principle of fundamental justice which reflects concerns formerly embodied in the confessions rule and the common-law privilege against self-incrimination. She stated that the principle involves "the right of the individual to choose whether to make a statement to the authorities or to remain silent, coupled with concern with the repute and integrity of the judicial process" (p. 175). Given that I have associated the common-law protections underlying this principle from Hebert with the principle against self-incrimination, it is important to note that McLachlin J. in Hebert also linked the right to silence to ideas of self-incrimination. She indicated that the measure of the right to silence may "reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself" (p. 175 (emphasis added)). In my opinion, therefore, the residual protection developed in Hebert reflects the principle against self-incrimination or the concept of the case to meet. Regarding this reflection, however, I would make the following point. In Hebert, supra, this Court recognized a residual protection against self-incrimination, but that recognition was prompted in part by the need to protect the s. 11(c) right
against compellability. McLachlin J. stated (at p. 174):
From a practical point of view, the relationship between the privilege against self-incrimination and the right to silence at the investigatorial phase is equally clear. The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory. [Emphasis added.]
Hebert thus reflects the philosophy earlier expressed in Dubois, supra, that the Charter should be "construed as a system" (p. 365; see also Hebert, supra, at p. 176). But I would highlight that, in the enumerated provisions of the Charter, there exists "no protection" against self-incrimination applicable in respect of pre-trial statements to the police. The guarantee of s. 11(c) was regarded as potentially "illusory" in that context. It does not follow that, in another context where the Charter provides some protection, an analysis along Hebert lines should necessarily proceed.
This point notwithstanding, I would conclude my review of Charter protections against self-incrimination by highlighting the vigour of s. 7. Before the Charter, and, indeed, before Thomson Newspapers, it was generally believed that there was no functional principle against self-incrimination, but only a collection of specific rules which might be grouped beneath such a label: see E. Ratushny, "Self-Incrimination: Nailing the Coffin Shut" (1978), 20 Crim. L.Q. 312. But it was also asserted, by Ratushny along with others (see Paciocco, supra, at p. 544), that a functional principle might be desirable. In my opinion, Hebert removes all doubt not only as to the desirability, but also as to the existence, of a such a functional, unifying, principle. If pre-trial silence was once nothing more than a particular manifestation of the general freedom to do as one pleases (see Ratushny, "Is There a Right Against Self-Incrimination in Canada?", supra; contra: Hebert, supra, at p. 198 (per Sopinka J.)), that is no longer the case.
Pre-trial silence has been elevated to the status of a constitutional right.
For these reasons, I conclude that a review of Charter jurisprudence demonstrates not only that the pre-Charter policy justification persists, but also that it has attained fresh constitutional nourishment. The case-to-meet principle, first articulated in this country by Ratushny (Self-Incrimination in the Canadian Criminal Process, supra, at p. 179), has become a unifying thought. There is a conceptual purity about this development, as M. Hor has noted in "The Privilege Against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35, at p. 35:
Conceptually, it would seem that if there is any single organizing principle in the criminal process, it is the right of the accused to resist any effort to force him to assist in his own prosecution. It provides substance to the common law ideal of a fair trial through an adversarial or accusatorial process. The parties to a criminal prosecution are seen as competitors and the trial the competition.
There is a principle against self-incrimination in Canada which is part of fundamental justice. The task which remains is the task of determining what this principle demands in the context of this appeal.
4.The Principle Against Self-Incrimination and Testimonial Compulsion
(a) Introduction: Principles and Rules
It is important to distinguish between rules and principles. Section 7 of the Charter directs an inquiry into the principles of fundamental justice. I have identified one such principle, namely, the principle against self-incrimination. It does not follow, however, that a particular rule which reflects that principle will reflect it in any particular way, or with any pre-defined scope.
In Re B.C. Motor Vehicle Act, supra, Lamer J. commented upon the specific rights enumerated in ss. 8-14 of the Charter in the following terms (at p. 502):
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice.
It is clear from this passage that the parameters of the right to liberty can be affected by the context in which the right is asserted. In other words, I have suggested above that certain specific enumerations of the Charter reflect a unifying principle against self-incrimination. It stands only to reason, however, that this principle may demand different things at different times; the parameters of the principle may be found in disparate rights.
I regard this point as important to the present appeal. A failure to realize the distinction between principles and rights can promote two extreme kinds of error. On the one hand, as I will discuss below, the assumption that one should give full effect to a principle might lead one to run roughshod over specific enumerations in the Charter. This assumption fails to take account of context. As Mewett has observed: "An individual's right means a legally protected interest, but the way in which that interest is protected differs in the case of different rights" ("Law Enforcement and the Conflict of Values", supra, at p. 181).
On the other hand, an exclusive focus on rights would destroy the meaningful residual role for s. 7 which was recognized in Hebert, supra. In speaking of lower court decisions which rejected such a role, Paciocco has stated (at p. 602):
Suffice it to say, it is my view that the error of reasoning that these cases have fallen into is caused by a failure to distinguish rules from principles. Granted, the only specific rules dealing exclusively and directly with self-incrimination in operation prior to the Charter were subsumed by sections 11(c) and 13. Yet, section 7 directs us to search for principles, not rules per se. In particular, in this context, the question is whether there is a fundamental notion of justice related to self-incrimination which has influenced the development of, and supported the existence of, rules other than those enumerated in Marcoux. [Emphasis in original.]
At the same time, it is necessary to emphasize that the framers of the Charter did not draft a free-standing right against self-incrimination. Ratushny has suggested that the absence of such language is a laudable feature of the Charter, in that "[i]t encourages attention to be focussed upon the specific procedural protections to which an accused is entitled without the distractions of emotive political battles of the past": Ratushny, "The Role of the Accused in the Criminal Process", in G.-. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 451, at p. 453. The task, as I envision it, is to use existing rules to help one understand the limits upon a principle, while at the same time acknowledging that the principle has the capacity to introduce new rules to benefit the overall system.
I proceed with these thoughts in mind to conduct the following examination. First, I will note in cursory fashion how the self-incrimination principle reflects different rules in different contexts, such that it cannot be regarded as an absolute directive. Second, I will consider whether the principle demands a rule to prohibit witness compellability on the facts of this appeal. Third, after concluding that the Charter condones testimonial compulsion on the facts, I will suggest that fundamental justice nonetheless demands that the witness have some protection beyond the limited protection provided by the language of s. 13.
(b)Limits on an Absolute Principle Against Self-Incrimination
I regard as incontrovertible the fact that the principle against self-incrimination has not in the past, and does not now, find full and complete expression in Canadian law. I have discussed in some detail above how statutory interference with the witness's privilege historically departed from the principle, particularly with respect to the perceived absence of derivative-use immunity under s. 5(2) of the Canada Evidence Act. But there are other limitations which should be noted as well.
For example, even with regard to the common-law privilege against self-incrimination for witnesses itself, it cannot be said that the principle found full expression. It was subject to at least two important limitations. First, there was the problem that the privilege claimed by a witness could be rejected by the trial judge, leaving the witness entirely unprotected in the case of a wrongful rejection. The trial judge's role appears in Re Westinghouse Electric Corp. Uranium Contract Litigation MDL Docket No. 235 (No. 2), [1977] 3 All E.R. 717 (C.A.), at p. 721:
The common law . . . says: "If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer:" . . . It is for the judge to say whether there is reasonable ground or not. [Emphasis added.]
Such a witness must confront unprotected what Wigmore called the "three horns of the triceratops -- harmful disclosure, contempt, perjury" ([sect ]2251, at p. 316 (emphasis in original)). To a similar effect was the problem of the adverse inference which might be drawn from a witness's decision to claim the privilege. It has been said that an "adverse inference for refusal to answer while in the witness box was eminently available": J. Watson, "Talking About the Right to Remain Silent"
(1991), 34 Crim. L.Q. 106, at p. 117. See generally, Paciocco, supra, at p. 449.
In post-Charter terms, other limitations on the principle against self-incrimination are also visible. The right to silence recognized by Hebert, supra, is not a free-floating right always available, but rather a right which has so far been linked to the concept of detention, and, moreover, it is not a right which is absolute and "capable of being discharged only by waiver" (p. 183). Similarly, the discussion in Stinchcombe, supra, which suggests that the defence has no obligation to assist the Crown, must be qualified in certain respects. In P. (M.B.), supra, Lamer C.J. stated (at p. 578):
However, it should be borne in mind that this protection against disclosure is not an absolute one. For example, failure to disclose an alibi defence in a timely manner may affect the weight given to the defence: E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987), at para. 16:8070; McWilliams, Canadian Criminal Evidence, supra, at paras. 28:10711-10712.
To a similar effect, the relationship between the case-to-meet principle and the presumption of innocence is altered, if not destroyed, by constitutionally permissible reverse-onus provisions. On a number of occasions, this Court has found that a provision which violates s. 11(d) of the Charter may nonetheless constitute a reasonable limit, demonstrably justified in a free and democratic society: R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Ratti, [1991] 1 S.C.R. 68; and R. v. Downey, [1992] 2 S.C.R. 10. By definition, a provision which relieves the Crown of some burden which would otherwise exist, and which places upon the accused a burden of adducing evidence, obfuscates the case-to-meet principle: see Ratushny, Self-Incrimination in the Canadian Criminal Process, supra, at p. 179. And yet, in certain circumstances, we have held that the thing must be done.
Finally, before turning my attention to ss. 7 and 13 of the Charter, I call attention to an inherent but often overlooked limitation on the principle against self-incrimination as recognized by s. 11(c) of the Charter. Section 11(c) constitutionalizes the accused's common-law right of noncompellability, but it is not insignificant that the accused who testifies is subject to cross-examination. Although it might be suggested that the accused will not testify until the Crown has produced a case to meet, this is no guarantee that the accused's cross-examination will not serve to incriminate further the accused. Ratushny recognized this point in the pre-Charter context with respect to the Canada Evidence Act:
An important feature of the approach [of the Canada Evidence Act which renders an accused competent but not compellable] was that, if he decided to take the stand on his own behalf, he could also be required to testify against himself. No attempt was made in the Act to protect him against cross-examination which might incriminate him at the trial at which he testified.
("Is There a Right Against Self-Incrimination in Canada?", supra, at p. 31.)
If the principle against self-incrimination were to be given full sway, we might permit the accused to testify for the purpose of offering a defence, but then prohibit the Crown from bolstering its case with evidence out of the accused's own mouth.
These cursory observations are sufficient, in my opinion, to demonstrate that the principle against self-incrimination may mean different things at different times and in different contexts. The principle admits of many rules. What should the rule be in respect of testimonial compulsion?
(c)The Principle Against Self-Incrimination and WitnessCompellability
I begin this inquiry by asserting that any rule demanded by the principle against self-incrimination which places a limit on compellability is in dynamic tension with an opposing principle of fundamental justice. That is the principle which
suggests that, in a search for truth, relevant evidence should be available to the trier of fact. Wigmore, supra, expressed the point well ([sect ]2192, at p. 70):
For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule. . . .
Obviously, the Charter sanctions deviations from this positive general rule. Sections 11(c) and 13 stand as obvious examples. The question is whether we need another exemption, and if so, why?
The difficulty of this question is evidenced by the fact that it has prompted academics to adopt points of polar opposition. Ratushny and Mewett have both expressed the view that protection of the self-incrimination principle demands, in essence, a return to the common-law position, such that a witness should have the right to object to questions which tend to incriminate: Ratushny, Self-Incrimination in the Canadian Criminal Process, supra, at pp. 393 et seq.; Mewett, "Law Enforcement and the Conflict of Values", supra, at pp. 198-99; and Mewett, "The Right to Silence", supra, at p. 274. Aligned with this view is the proposition that testimony which is nonetheless desired by authorities should be available, provided that immunity protection is provided. Ratushny states:
The precise scope of a unified right against self-incrimination will have to be fashioned carefully. However, at a minimum it should permit a potential witness to refuse to provide testimony which would be personally incriminating in the absence of a specific and binding grant of immunity from prosecution in relation to the subject-matter of such testimony.
("The Role of the Accused in the Criminal Process", supra, at p. 487.)
The immunity protection envisioned by this passage is apparently the "transactional immunity" recognized historically in the United States by Counselman v. Hitchcock, 142 U.S. 547 (1892). The suggestion is that nothing short of formal prosecutorial immunity can justify the forced production of a self-incriminatory answer.
I point out that the position of the appellant in this case amounts to an extension of this first view. That is, in the absence of guaranteed transactional immunity, the appellant would claim not just a right equivalent to the common-law privilege against self-incrimination, but rather he would claim a complete right to silence. The claim amounts to an extension of the reasoning in Hebert, supra, such that the appellant argues "[t]here is no logical distinction between the accused person being questioned pursuant to a subpoena under oath at his co-accused's trial or pursuant to arrest or detention at the station-house".
Then there is the second polar view. According to Paciocco, supra, there is a fundamental distinction between testimonial self-incrimination, meaning the use of a person's communications "as evidence of the truth of their contents to assist the Crown in proving the commission of a criminal offence by that person" (p. 540), and non-testimonial self-incrimination. According to Paciocco, when a person's communication is merely a source of information, such that the accused person is not directly engaged in the creation of self-incriminatory evidence, a different analysis is appropriate. In Paciocco's view, the only residual protection against self-incrimination required under s. 7 of the Charter is the kind of protection already recognized by Hebert, that is, protection against self-incriminatory pre-trial statements to police (at p. 597):
The principle does not take offence at compelled disclosure. The relevant principle, I suggest, is that forcing the accused to respond to an allegation at the proceedings
where he is being tried and where his liberty is imperilled violates the principle of a case to meet because it compels the accused to answer. Using the accused's pretrial compelled statements would subvert that principle by using an enforced answer as part of the Crown's case just as if the answer had been compelled at the trial itself. Using evidence discovered as a result of a pretrial compelled statement is not the admission of an enforced answer and is not, therefore, an enforced response at the trial which has been required prior to the establishment by the Crown of a case to meet. Evidence discovered by compelled "clue facts" is not therefore protected. [Emphasis in original.]
Likewise, in respect of compelled testimony in parallel proceedings, Paciocco suggests that the relevant principle demands only what s. 13 provides, namely, protection against the subsequent use of compelled testimony. To state the matter another way, Paciocco would not demand derivative-evidence protection, whether in the form of a clue-fact privilege or a derivative-use immunity, for the purposes of s. 7.
To resolve this disagreement, I am of the opinion that one must have primary regard for the structure and language of the Charter. In Thomson Newspapers, supra, this sentiment tended to ignite a debate regarding the propriety of interpreting the Charter using the expressio unius principle of statutory construction. That is, there was a current of resistance, most evident in the reasons of Wilson J., against the suggestion that the mere presence of ss. 11(c) and 13 is determinative of the question whether additional self-incrimination protections are possible. I agree with Wilson J. that a mechanical application of an expressio unius principle would be "inconsistent with the purposive approach to Charter interpretation" (p. 470). Indeed, taken to an extreme, such mechanics might have precluded the result in Hebert. But it does not follow that the presence of the enumerated protections can be ignored. L'Heureux-Dubé J. reflected this sentiment in Thomson Newspapers when she stated that "once the values have been identified, these rules [of statutory interpretation] might still
be available in later stages of the analysis" (p. 570). That is another way of saying that, in a particular case, the result which might have been demanded by the expressio unius rule turns out to be the same result which is demanded by a purposive approach.
The enumerated protections in the Charter are of particular importance when one considers the broader context of our legal system. The relevance of this context to an inquiry under s. 7 is beyond dispute: Re B.C. Motor Vehicle Act, supra, at p. 503. Moreover, it is clear that the investigation can target not only the common-law or constitutional context, but also the legislative context. It is relevant to consider the principles which "have animated legislative and judicial practice in Canada": R. v. Lyons, [1987] 2 S.C.R. 309, at p. 327; see also R. v. Beare, [1988] 2 S.C.R. 387; and R. v. Seaboyer, [1991] 2 S.C.R. 577.
So, I simply make a point which has been made before: it is difficult, if not impossible, to ignore the similarity between the structure of ss. 11(c) and 13 of the Charter, and the statutory approach apparent in s. 5 of the Canada Evidence Act. The two structures share a concern for the non-compellability of accused persons, and both seek to protect witnesses against self-incrimination by providing a form of use immunity. They principally differ in that s. 13 of the Charter omits that much criticized portion of s. 5(2) of the Canada Evidence Act which requires a witness to claim its protection: see Dubois, supra, at p. 360.
Thus, there are two aspects of s. 5(2) of the Canada Evidence Act which one might suppose have been constitutionalized in s. 13 of the Charter: first, a general rule of compellability for witnesses; second, a general rule that witnesses will be protected against self-incrimination through immunity protection rather than a privilege. The first polar view described above takes issue with
the propriety of these general rules, or at least seeks to qualify them.
With respect, then, to the proposition that there should be a right to silence which can be claimed by some, if perhaps not all, witnesses, the challenge is directed toward the general rule of compellability. In fairness, even the appellant, as I understand his position, would not go so far as to suggest all witnesses should have a right to stand mute. Or, at least, I have not been made aware of any common-law, statutory, or constitutional authority which has gone so far. With regard to the common law in particular, there was protection by way of non-compellability for accused persons, and protection by way of privilege for witnesses. But once the testimony of witnesses became admissible in court as an historical matter, witnesses were never, thereafter, protected by a non-compellability rule.
Should this point require emphasis, I consider it instructive to compare the current text of s. 13 to an earlier version. As proclaimed, s. 13 provides protection to "[a] witness who testifies". In the Proposed Constitutional Resolution of October, 1980, however, the s. 13 right was to be afforded to "[a] witness . . . when compelled to testify": The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada (1980), at p. 18. In Dubois, supra, Lamer J. indicated that s. 13's legislative history demonstrates that it is intended to protect the voluntary witness (p. 360); see also R. v. Staranchuk (1982), 3 C.C.C. (3d) 138 (Sask. Q.B.), rev'd on other ground (1983), 8 C.C.C. (3d) 150 (Sask. C.A.). But surely that is all this legislative history demonstrates. In other words, by removing the reference to compellability in s. 13 of the Charter, the drafters presumably meant to extend its protection to witnesses other than witnesses who testify on compulsion. The absence of compellability language cannot have been meant to cast doubt upon the general rule that witnesses are compellable. To permit such doubt
would be to cast aside the state's usual right to demand evidence in the search for truth.
This suggests that compellability is a general rule, but it is germane to reiterate that the appellant only claims an exemption from this general rule. The exemption he proposes is status based. The appellant's primary contention is that "an individual charged with a criminal offence has a fundamental right to remain mute and not answer questions regarding their potential liability". As already mentioned, this contention amounts to an extension of the reasoning from Hebert, supra, where a right to silence was recognized for persons who have been detained. The contention requires careful consideration.
In Hebert, this Court developed a right to silence so that "[t]he suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police" (p. 180). This was done on the theory that (at p. 181):
In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice.
In the pre-trial interrogation context, a fundamental concern arises as to the omnipotence of the state, and we seek to avoid "abuses of power against the individual" (p. 183).
The pre-trial interrogation context of Hebert must be highlighted. In that context, the self-incrimination principle is affected in more than one way. It is not simply the effect of a pre-trial disclosure which endangers the principle, but also the purpose of the activity itself. One's status as "detained person" is relevant because it defines
when pre-trial interrogation begins. In this regard, McLachlin J. in Hebert distinguished between pre-trial interrogation, and pre-detention investigations (at p. 184):
Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected.
Once detention arises, the state's power over the individual is such that a statement obtained in violation of the right to remain silent is self-conscriptive. But note that the agent who ignores the Charter right acts for the purpose of building a case against the accused. In the same way that s. 11(c) ensures that the accused will not have to participate in this purpose at trial, s. 7 acts to protect the accused prior to trial.
A very significant problem arises, however, when one attempts to transport Hebert uncritically to a context involving testimonial compulsion in established proceedings. In such a context, the accused person (or, one might just as easily say "the detained person", or "the suspect") would like to argue that, although the proceedings are not instituted for the purpose of obtaining self-conscriptive evidence, the proceedings will nonetheless have that effect. Based upon this logic, the accused demands special constitutional protection at such parallel proceedings.
To my mind, there is an inherent and serious flaw in this argument. Of course, it is well established that either an unconstitutional purpose or an unconstitutional effect can invalidate a provision, and so I take no issue with the appellant's effort to highlight an unconstitutional effect: R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295. The problem, however, is that the self-conscriptive effect identified by the appellant is precisely the same effect which confronts every witness who is compellable and who must answer questions pursuant to s. 5 of the Canada Evidence Act. The accused person, the detainee, the suspect, the compelled or voluntary witness for the prosecution, and the compelled or voluntary witness for the defence, all confront an identical hazard. Once it is determined that a proceeding lacks the flavour of pre-trial interrogation, the fact of status devolves into meaninglessness. Detention becomes indicative of purpose; detention has nothing exclusive to say about effects.
The most important authority which might be advanced to support a contrary view, namely, Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, has enjoyed a history of mutilation which effectively makes my point. I will consider that decision immediately below. Before I do so, however, I wish to emphasize that, irrespective of whether one considers Batary to be correctly or incorrectly decided, and irrespective of whether one believes that, in post-Charter terms, Batary reflects a worthwhile principle, Batary is only meaningful at this stage of the inquiry if it supports a rule against self-incrimination which is based upon the status of the person whose evidence is sought to be compelled.
In Batary, a provincial coroner's inquest had the power to compel testimony from any person: The Coroners Act, R.S.S. 1953, c. 106, s. 15 (as am. by S.S. 1960, c. 14, s. 3). Cartwright J. for the majority first examined the English history of the coroner's inquest, and concluded that the received law of Saskatchewan included the English criminal-law proposition that "a person charged with murder and awaiting trial could not be compelled to testify at an inquest into the death of the deceased with whose murder he was charged" (p. 475). In the opinion of Cartwright J., this rule of non-compellability was not altered by any intervening
federal enactment in this country. With respect to the provincial provision, he then reasoned (at p. 478):
Such legislation trenches upon the rule expressed in the maxim nemo tenetur seipsum accusare which has been described (by Coleridge J. in R. v. Scott) as "a maxim of our law as settled, as important and as wise as almost any other in it."
Cartwright J. concluded that the Saskatchewan compellability provision was ultra vires legislation enacted in relation to the criminal law including the procedure in criminal matters: Constitution Act, 1867, s. 91(27). A rule of law, applicable to accused persons, was thus perceived to be born: W. Henkel, "Competency, Compellability and Coroners' Courts" (1970), 12 Crim. L.Q. 166.
My difficulty, however, lies in making the association Cartwright J. made between the nemo tenetur maxim -- which I have here reformulated into the principle against self-incrimination -- and a rule against compellability which derives from a witness's status as accused person in other proceedings. In particular, if the principle against self-incrimination abhors the notion that an accused person can be compelled in separate proceedings, one wonders how Batary can be rationalized in the pre-Charter context with the proposition, not then disputed, that accused persons either jointly or separately indicted, but separately tried on a charge, were compellable at each other's trials. This point appears, for example, in Re Regan, [1939] 2 D.L.R. 135 (N.S.C.A.), cited by both the majority and dissent in Batary, supra.
Moreover, if the principle against self-incrimination would take issue with the compellability of a person accused of an offence, would it not also take issue with the compellability of a suspect? It is difficult to believe that a principle as supposedly
fundamental as the principle against self-incrimination would be susceptible to easy manipulation through the timing of a formal charge. As Estey J. noted in Attorney General of Quebec and Keable v. Attorney General of Canada, supra, the circumstances which control the timing of an indictment may be "accidental or at least undirected" (p. 256). Moreover, as Ratushny has noted, defence counsel operating under such a rule of law might have been well advised to "lay[] an information against his own client!" (Self-Incrimination in the Canadian Criminal Process, supra, at p. 362).
And, in any event, in the next relevant case after Batary, supra, namely, Faber v. The Queen, [1976] 2 S.C.R. 9, this Court confined Batary to its facts in this regard. According to de Grandpré J., a witness compelled to testify before a coroner's inquest in Quebec could not complain because (at pp. 21-22):
In the case at bar appellant, at the time he was required to testify, had not been charged with any offence as a result of the death of Csoman, and as a matter of fact no charge has been brought against him to date. In my view the effect of this fundamental difference is that Batary has no application to the case at bar.
There is no doubt that in distinguishing Batary in this fashion, this Court rejected an analogy between persons charged with an offence and mere suspects, that is, persons likely to be charged with an offence: see Di Iorio, supra, at pp. 216-17.
Given the obvious contradictions between Batary on the one hand, and cases like Regan, supra, Faber, supra, and Di Iorio, supra, on the other, it cannot be seriously contended that there has been any coherent recognition of a non-compellability rule which attaches to the status of a person without regard for the character of the proceedings in which testimony is sought to be compelled. It may be that Batary simply reflects an anomalous rule from history. Or, it may be that there is considerable doubt as to the correctness of
Cartwright J.'s summary of English law in Batary, supra. In this regard, I note the following criticisms advanced by Ratushny:
On the historical aspect of the judgment, it is perhaps significant that no authority was cited indicating that the accused could not be called as a witness at an inquest. Rather, the negative approach was taken, that no case had been cited in which that had happened. But if the person's status as an accused is irrelevant, there would be no reason to mention it.
Perhaps what is more important in this context, is the state of the law with respect to witnesses historically. It will be recalled that at common law, a witness did not merely have protection against his testimony being used at a future proceeding. He could refuse to answer. In these circumstances, there would be little point in calling an accused, or even a suspect, as a witness. It is submitted that this is the true significance of the passage quoted by Cartwright J. from Jervis on Coroners, to the effect that an order to compel a person to attend before a coroner and jury:
. . . will generally be made if the prisoner is not the party under accusation; or, if he is accused or suspected, then when he is desirous of making a statement, and perhaps also when his presence is requisite for the purpose of identification.
The passage recognizes that an accused can be compelled, but also recognizes the futility of calling him, unless there is an indication that he will waive his right to refuse to answer. [Emphasis in original.]
("Is There a Right Against Self-Incrimination in Canada", supra, at p. 58.)
Like Ratushny, I am concerned that this Court in Batary fundamentally confused two kinds of authorities: first, authorities which recognized the practical futility of calling an accused to testify in parallel proceedings about the subject matter of a charge, in recognition of the common-law testimonial privilege; and, second, possibly non-existent authorities which might establish a rule of law to the effect that persons with a certain status are not compellable in parallel proceedings. Especially instructive in this regard is Cartwright J.'s citation of R. v. Scorey (1748), 1 Leach 43, 168 E.R. 124,
and Wakley v. Cooke (1849), 4 Ex. 511, 154 E.R. 1316, and his statement that (at p. 474):
There is nothing in the judgments in either of these cases to suggest that a person charged with the murder of a person into whose death an inquest was being held could be compelled to testify at such inquest. With respect, I must disagree. In Wakley, supra, Pollock C.B. impugned the practice of the Middlesex coroners which led those coroners to refuse testimony from accused persons and suspects, and he did so in clear terms (at p. 1318 E.R.):
Such a practice, no doubt, is not correct, and it is to be hoped that it will be discontinued hereafter. It is manifestly contrary to the law of the land; and it is quite clear that the evidence of a man ought never to be excluded in an investigation before a coroner, on the ground that he may criminate himself, for it is not right to assume that he is guilty; and the witness may guard his own interests in giving his evidence. [Emphasis added.]
In other words, the authorities relied upon by Cartwright J. in Batary to support the proposition that accused persons were not compellable by coroners in England go some distance toward proving the opposite point, namely, that the compellability of persons was defined not by their status in parallel proceedings, but rather by their status in the proceedings where testimony was desired.
Having made these points, I will go no further toward impugning the result in Batary, and I am not of a mind to overrule it. On its facts, it is noteworthy that an accused's preliminary inquiry in Batary was adjourned at the instance of an Attorney General so that a coroner's inquest into the very same matter might be conducted, and so that the accused might be therefore compelled to testify. Cartwright J.'s policy objection to this state of affairs has no little significance in relation to a principle against self-incrimination. He stated (at p. 476):
It would be a strange inconsistency if the law which carefully protects an accused from being compelled to make any statement at a preliminary inquiry should permit that inquiry to be adjourned in order that the prosecution be permitted to take the accused before a coroner and submit him against his will to examination and cross-examination as to his supposed guilt.
It must be noted, of course, that Cartwright J. in this passage acknowledged the pre-Charter supremacy of Parliament in respect, even, of such "a strange inconsistency" as he perceived, and he did not have available to him any free-floating principle against self-incrimination which he might have used to combat it. But, since he was confronted with provincial legislation, he could command a division-of-powers analysis, and he may have used that analysis to "incorporate into the federalism issue a partial `protection of rights' analysis": Ontario Law Reform Commission, Report on Public Inquiries (1992), at p. 73.
Whether or not the Charter might respond to the policy objection voiced in Batary is not, however, the issue confronting me now. As indicated above, the problem which Batary does not resolve is this: there is no logical reason to distinguish for s. 7 purposes between persons on the basis of a status defined in parallel proceedings, in so far as a testimonial compulsion in other proceedings is concerned. If a statutory compulsion, as applied to two individuals, will result in each divulging the same information on the stand, and if that information is similarly inculpatory for each, why should the two receive different kinds of Charter protection? In my opinion, they should not.
If one accepts this proposition, then the available options become easier to manage. It becomes clear, for example, that if the principle against self-incrimination, as it is applied to an accused person or a suspect at parallel proceedings, can be satisfied by nothing less than a right to silence, then
that right to silence must be available to all persons, since the question of status is irrelevant. I have already suggested above that this deafening silence finds no support anywhere, and it ought to be rejected.
What about a return to the common-law position? I have noted that both Ratushny and Mewett favour this view. Ratushny, for his part, has discussed how a modified form of the rule from Batary, supra, might be developed, such that a person charged with an offence would have the common-law privilege against self-incrimination. But, as I have noted above, Ratushny recognized that by logical extension the common-law testimonial privilege for witnesses would result:
If such a protection is to be restored to persons who have already been charged, is there any logical reason for not extending it to persons who are likely to be charged or who could be charged? Without such an extension, the Crown could simply postpone the laying of charges until the suspect had completed his testimony at the other hearing. This appears to have been the situation, for example, in the Johansen case.
If the proposed provision were to be extended to persons who are not yet charged, we would be back, essentially, to the common law position. A witness would be permitted to refuse to answer any question on the ground that it might tend to incriminate him of a criminal offence. [Emphasis in original.]
(Self-Incrimination in the Canadian Criminal Process, supra, at pp. 393-94.)
It is in respect of this argument, that is, the argument that we should retreat to the common-law position, that I consider it doubly important to have primary regard for the structure of the Charter. I agree, for the reasons variously expressed in Thomson Newspapers, supra, that we must take care to guard against defining the principles of fundamental justice in overreliance upon a legislative position, even a position of long standing. However, to contend that s. 7 of the Charter demands a testimonial privilege for all witnesses is
to suggest that the framers of our Constitution misunderstood the nature of s. 5 of the Canada Evidence Act and simply forgot to include a provision in the Charter comparable to the Fifth Amendment of the United States Constitution. That is a proposition which I cannot accept.
Indeed, it is clear that Canada repeatedly resolved to maintain a position whereby witnesses are able to claim a protective mechanism which admits of certain application and which has a defined reach. While the longevity of the Canada Evidence Act approach is perhaps not a determinative consideration, its longevity has particular significance when one considers that the Canadian position has been the subject of unending scrutiny which it has always survived. The considered opinion of the legal community in this country has repeatedly advocated its retention: see, e.g., Law Reform Commission of Canada, Working Paper 17, Commissions of Inquiry: A New Act (1977), at pp. 36-37; and Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, supra, at pp. 438-39. Even the Canadian Committee on Corrections, quoted above as suggesting that an absence of derivative-use immunity bestows a "powerful weapon" upon Canadian law enforcement, did not advocate a return to the common-law position. Instead, in the pre-Charter context, the only change repeatedly recommended is the one s. 13 of the Charter obviously embodies, namely, the abolition of the requirement for witnesses to claim immunity protection.
In short, the structure of the Charter demonstrates an obvious attempt to enact in constitutional form the same structural protection against self-incrimination for witnesses which existed historically. The protection envisioned involves a general rule of witness compellability, coupled with an evidentiary immunity. Even Ratushny, who argues for new protection, admits that the Charter's structure was intended to reproduce the pre-existing approach: "The Role of the Accused in the
Criminal Process", supra, at p. 486; see also Paciocco, supra, at pp. 445-46. I am driven to agree with the sentiment ably expressed in Re Transpacific Tours Ltd. and Director of Investigation & Research (1985), 24 C.C.C. (3d) 103 (B.C.S.C.), by Lysyk J. (at pp. 121-22):
The Charter's draftsmen would have been mindful . . . of the fact that the broad common-law privilege against self-incrimination had effectively been set aside in Canada decades ago by the predecessor provisions of what is now s. 5 of the Canada Evidence Act. . . .
The form of limited protection against self-incrimination afforded by those enactments is deeply ingrained in the Canadian justice system. Had the framers of the Charter wished to revert to the position at common law . . . it is difficult to understand why they would have elected to achieve this objective in such oblique fashion -- through the general language of s. 7 -- instead of addressing the matter directly in s. 13 itself.
Like La Forest J. in Thomson Newspapers, supra, I must infer that the American model, "complete with all its residual doctrines" (p. 538), was specifically considered and rejected. See also Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724 (B.C.C.A.). To pause for a moment, I distinguish this analysis from the analysis in Hebert, supra. In that case, a residual role for s. 7 was recognized which operated to protect s. 11(d), and which gave effect to the Charter as a coherent system. To use s. 7 for the purposes here suggested, namely, as the repository for an absolute right to silence or for the common-law witness privilege, would do violence to that system. It would become difficult to account for the existence of s. 13. This is not expressio unius construction. This is an effort to respect an obvious intention.
Indeed, by rejecting the polar positions associated with the right to silence and the privilege
against self-incrimination, I admit that Canada has adopted a particular attitude with respect to the principle against self-incrimination as that principle is applied to witnesses. Once testimony is compelled, no form of evidentiary immunity can hope to restore completely the principle's lustre. Even if use immunity together with a broadly conceived derivative-use immunity were made available, there would still be the problem that a witness's testimony might make the authorities commence an independent investigation. The police might become alive to a crime only because of a witness's testimony. Nothing short of transactional immunity could solve this problem.
Thus, as soon as one accepts that the Canadian solution is to couple compellability with protection in the form of evidentiary immunity, one is left to conclude that Canada is willing to permit a unique balancing of individual and societal interests. As recognized in Seaboyer, supra, "[t]he principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns" (p. 603). I agree with the following statement by La Forest J. in Thomson Newspapers, supra, at p. 541:
A right to prevent the subsequent use of compelled self-incriminating testimony protects the individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the state.
With respect to the suggestion that the Charter would condone a return to the common-law privilege, Mewett has stated: "The major disadvantage is that such a privilege tends to protect not only the individual claiming it but any others whose present or future conviction may depend upon the securing of his testimony" ("The Right to Silence", supra, at p. 274). In my opinion, the structure of the
Charter rejects this disadvantage as an unacceptable balance between individual and societal needs. It compels the conclusion that immunity protection is the Canadian method of preserving the principle against self-incrimination in the context of a general rule of witness compellability. As I suggested above, it is not unreasonable for the principle to demand silence in one context, and to respond with immunity in another. The extent of the necessary immunity is a problem which I will return to below.
Before doing so, however, I must acknowledge the Achilles heel of the approach evident in the Charter. I have suggested above that the principle of the case to meet, or the principle against self-incrimination, is a unifying principle of criminal law which finds recognition in the Charter. I have also explained why it is fallacious to suppose that Charter protections should vary with individual status. But having rejected status as a means to control the compellability of individuals, the Charter is left on a precipice. For if it be accepted that a person can always be compelled as a witness and that protection by way of evidentiary immunity will always be sufficient, then it must also be accepted that we have gone considerable distance toward diluting the principle of the case to meet without ever having said so.
In identifying the problem we face, I can do no better than quote from Ratushny once more:
The basic problem is that many of the protections provided by the criminal process may be subverted by calling the suspect or accused as a witness at some other proceeding prior to his criminal trial.
It is true that such a witness may prevent his testimony from being introduced at any subsequent criminal trial. However, the damage may be done in other ways. The earlier hearing might be used as a `fishing expedition' to subject the witness to extensive questioning with a view to uncovering possible criminal conduct. The questioning might also be used to investigate a particular offence. For example, the accused might be
required to reveal possible defences, the names of potential defence witnesses and other evidence. Moreover, the publicity generated by the hearing may seriously prejudice the likelihood of a fair trial.
The problem is that the initial hearing is likely to have none of the protections guaranteed by the criminal process. There will be no specific accusation, no presumption of innocence, no protections against prejudicial publicity, no rules of evidence and so on. It is submitted that there is a serious crisis of integrity in a criminal process whose detailed protections may so easily be ignored. Nor are these merely theoretical problems.
("The Role of the Accused in the Criminal Process", supra, at pp. 483-84.)
To put the matter another way, the Charter's structure as described above is founded upon the Crown's obligation to make a case, but it also assumes a general rule of compellability coupled with evidentiary immunity. If, however, the Charter places no limits on when this structure may be invoked, then the Charter could, in fact, condone an inquisition of the most notorious kind. Such condonation would bespeak an impossible dualism. To ask a question by paraphrasing a concern voiced in Thomson Newspapers, supra, at p. 606 (per Sopinka J.): are we prepared to arm the police with subpoena powers?
I do not think that we are, but the difficulty lies in fashioning an acceptable response. Because the status of individuals cannot be manipulated in any meaningful way to confine the reach of a general compellability rule, one is left with the difficult task of focusing on the character of proceedings at which testimony is sought to be compelled. This is a task which I do not relish, but it seems absolutely demanded by the structure of the Charter.
Like La Forest J. in Thomson Newspapers, supra, therefore, I begin by borrowing from
Ratushny the distinction between proceedings which are adversarial and those which are inquisitorial. Ratushny introduced this distinction in these terms:
This whole "adversary" approach can be contrasted with an "inquisitorial" approach, where the emphasis shifts from an accusation to the terms of reference of the inquiry. For example, instead of an accusation that X is criminally responsible for the murder of Y, the inquiry might be into the circumstances surrounding the cause of Y's death. The inquiry might even be to determine specifically whether or not X is criminally responsible for the death of Y. However, an inquiry suggests an initiative on the part of the adjudicator. The passive judicial role is no longer possible. The adjudicator becomes an investigator as well as a judge. In these circumstances, the crucial burden on the Crown to prove its accusation no longer exists.
(Self-Incrimination in the Canadian Criminal Process, supra, at p. 21.)
Regardless of the character of proceedings in which a witness's testimony is sought to be compelled, if those proceedings are not adversarial vis-à-vis the witness, then the proceedings naturally operate in inquisitorial terms in relation to that witness. This is so even if the proceedings take place in the criminal realm and involve an adversarial contest between the state and another accused person.
The troubling question is this: when should an inquiry of this sort be condoned? It is unavoidably the case that an answer to this question can be found only if one examines the purpose for which testimony is desired by the state. I have already suggested that an emphasis on the self-incriminatory effects of an inquiry would ride roughshod over the specific enumerations of the Charter. A focus on purpose, however, holds more promise. It is to be recalled that, like Wilson J. in Thomson Newspapers, supra, I have characterized the principle against self-incrimination as being subject to the proposition that "[t]he state must have some justification for interfering with the individual" (p. 480). An essential objection must be lodged
against a proceeding which is justified by a self-incriminatory purpose. But there are many other purposes in our complex society.
In this regard, I note that a focus on the purpose, or character, of proceedings, dominated the analysis of the Law Reform Commission of Canada in its Working Paper 17, Commissions of Inquiry: A New Act, supra. Although the Commission dealt in that paper only with the problem of the inquisitorial mode of questioning altogether apart from the adversarial realm of criminal law which concerns me here, the Commission fashioned a model which I find instructive. In particular, the Commission distinguished between investigatory inquiries on the one hand, and advisory inquiries on the other (a distinction later embodied in its Report 13, Advisory and Investigatory Commissions (1979)). The latter kind of inquiry, according to the Commission, "might consider any policy matter of substantial importance, or complex problem requiring expert solution" (Working Paper 17, at p. 26). Accordingly, such an inquiry might properly have broad powers and be permitted to range freely. But, notably, the Commission regarded the breadth of an advisory inquiry's purpose as an anathema to testimonial compulsion (at p. 28).
An investigatory inquiry, on the other hand, was characterized by the Commission as being an inquiry directed toward a target which limits its scope, and which defines its social importance. An inquiry of this kind might legitimately possess the power to compel witnesses on the theory that it acts in furtherance of a goal which has substantial public importance. On this point, the Commission stated:
What is of "substantial public importance"? A new statute should not list categories of such matters; legislative life being what it is, inevitably such a list would quickly prove incomplete and obstructive. In most instances, however, whether a given matter is of such a kind should be evident. Does it involve, for example, serious accusations of incompetence or venality in government itself? Serious breakdown in the
implementation or administration of an established government policy? Natural disaster badly handled or an unexplained serious accident? It is fair to say that, although one cannot anticipate all questions that can reasonably be deemed to be of substantial public importance, "one will know one when one sees one".
(Working Paper 17, at p. 31.)
Although the last-mentioned point might be taken to suggest that only a "smell test" is capable of distinguishing between investigatory and advisory inquiries, I am inclined to think that a more manageable structure can be devised. I note, for example, the Commission's additional suggestion that the two kinds of inquiry may be attracted to different kinds of facts, in so far as the investigatory inquiry "may well be interested in questions of fault and blame" (p. 25). In any event, it is apparent that the line cannot be a hard and fast one, since an analysis of purpose does not exclude incidental effects.
In positing this distinction between inquiries which might be permitted to compel testimony and those which might not, I am mindful of the fact that the advisory/investigatory distinction has been criticized. In particular, it has been suggested that this distinction mirrors the false dichotomy between quasi-judicial and administrative proceedings, such that it is difficult to deal with: Ontario Law Reform Commission, supra, at pp. 189-90; see also Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992); P. Robardet, "Should We Abandon the Adversarial Model in Favour of the Inquisitorial Model in Commissions of Inquiry?", in A. P. Pross, I. Christie and J. A. Yogis, eds., Commissions of Inquiry (1990), 111. Admittedly, in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, Estey J. stated that (at p. 231):
Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel.
I mean to cast no doubt here upon such an analysis, nor upon the related suggestion that "[i]n the pre-Nicholson era a number of authorities shifted the emphasis away from a process of classification of the tribunal in question to the effect of the statutory procedure on the individual appearing in the administrative process" (p. 216).
As I understand it, however, the dichotomy between quasi-judicial and administrative proceedings can be regarded as false to the extent that one is concerned with determining which requirements of natural justice or procedural fairness should attach to proceedings. When this is the goal, instead of labelling the proceedings, it is helpful to analyze their effect upon individuals as Estey J. discussed in Irvine, supra. However, I am not here concerned with defining the scope of procedural protection due a witness who is compelled to testify in proceedings which have an otherwise acknowledged validity, but rather with the substantive question whether an inquiry which purports to compel testimony can exist in such a form at all. I have noted above that to analyze the effects of compellability is to pursue an impotent means of substantive analysis.
Therefore, at the end of the day, I think we must be on guard to acknowledge the "subtle crisis" perceived by Ratushny, that is, the crisis of principle which would arise if we failed to note that adversarialism is in competition with the inquisitorial mode of proceeding. Of this crisis, Ratushny has made two points of particular consequence. First, he has acknowledged that to permit departures from the adversarial model may be "a natural, logical and desirable development", although
admittedly one which requires careful re-assessment of our system: Self-Incrimination in the Canadian Criminal Process, supra, at p. 35. Second, in consequence of the required re-assessment, "extreme caution must be observed in any attempt to adapt solutions proposed elsewhere to our unique circumstances": id., at p. 40. We cannot avoid the conclusion that a Canadian solution to this problem is required.
At this juncture, I return for a moment to reconsider Batary, supra. As the Ontario Law Reform Commission has noted, supra, at p. 70, it is interesting that "[n]either Cartwright J. nor Fauteux J. [in Batary] discussed whether the legislation establishing the coroner's inquest was properly within provincial jurisdiction". Instead, in the majority reasons of Cartwright J., it is as if the addition of the power to compel testimony to the coroner's arsenal was sufficient, by itself, to render the proceedings criminal in nature. Perhaps Cartwright J. saw the coroner as a police officer armed with a subpoena. What is especially instructive, to my mind, is the fact that Cartwright J. did not strike down the governing legislation itself, but only the impugned power to compel testimony. Perhaps, in light of a broad inquisitorial context, the simple addition of the subpoena power led to an irresistible inference of colourability. Thus, in a case which involves a provincial inquiry, it may be that the demands of s. 7 of the Charter will parallel the division-of-powers analysis (and we are not called upon today to rehear cases decided subsequent to Batary). That which would be ultra vires as criminal law for the provinces might also be rejected by s. 7. But, of course, there is the additional potency of the Charter to consider, such that the Charter would also demand this result in respect of a comparable federal effort.
These comments are a sufficient introduction to the problem as I perceive it. I will go no further in these reasons toward defining the scope of permissible inquiries, since the facts do not demand it. Moreover, I express no comment as to the form of remedial response which might be devised in a case which involves a statutory compulsion to speak appearing in a colourable context.
On the facts of this case, to the extent that the witness J.P.M. might be compelled to testify in proceedings which have the character of an inquiry in relation to him, it is also true that those proceedings have a very definite character in Canadian law vis-à-vis the appellant, R.J.S. The proceedings in question can be defined with certainty, in so far as R.J.S. was "charged with an offence" under the Criminal Code. As R. v. Wigglesworth, [1987] 2 S.C.R. 541, makes clear, a person can be regarded as "charged with an offence" for the purposes of s. 11 of the Charter because a matter is "by its very nature...a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence" (p. 559). The public purpose of resultant proceedings can be defined by the fact that they are "intended to promote public order and welfare within a public sphere of activity" (p. 560), and, in light of the enumerated protections of s. 11, that known purpose will be accompanied by the adversarial character of the proceedings in relation to the accused.
Having defined the case this way, I believe it follows naturally that, although the trial against R.J.S. might be considered an inquiry in relation to J.P.M. as witness, the inquiry is of the sort permitted by our law. The search for truth in a criminal trial against a named accused has an obvious social utility, and the truth-seeking goal operates to limit effectively the scope of the proceedings in terms of the "inquiry effect". The laws of relevancy would preclude the random examination of individuals within a criminal trial. It also follows that I disapprove of obiter suggestions which might lead to a contrary result: e.g., Re Welton and The Queen
(1986), 29 C.C.C. (3d) 226 (Ont. H.C.); R. v. Zurlo (1990), 57 C.C.C. (3d) 407 (Que. C.A.); and Praisoody, supra.
Before concluding on this issue, however, I should add a few thoughts. It has been repeatedly suggested that the Crown might be able to subvert the principle against self-incrimination by proceeding with separate criminal trials with the manifest purpose of thus obtaining compelled testimony. First, for the reasons which follow dealing with the scope of evidentiary immunity available in Canada, this is a procedure which the Crown adopts at its own peril; there may be costs associated with the Crown's ability to prosecute later a compelled witness (and I would add that these are costs the Crown might happily pay when the decision is made to pursue a conviction against W at the possible expense of the ability to convict the less threatening witnesses, X, Y, and Z).
Second, however, if it be suggested that the Crown might choose to prosecute an accused, having first prepared no case to meet and only for the purpose of subpoenaing a witness, then it would seem to me that an objection should lie, not only because the purpose of the proceedings can no longer be defined by the adversarial contest between the state and the so-called accused, but also because the prosecution would amount to an abuse of process, being "conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention": R. v. Power, [1994] 1 S.C.R. 601, at p. 615. There is more than one way to check the progress of a fishing expedition, but a decision to proceed separately does not, in and of itself, amount to an abuse of process: see R. v. Crooks (1982), 39 O.R. (2d) 193 (H.C.); and R. v. Mazur (1986), 27 C.C.C. (3d) 359 (B.C.C.A.), leave to appeal refused, [1986] 1 S.C.R. xi. This is especially clear on the facts of this case, inasmuch as the decision to proceed separately was prompted
by an administrative procedure rather than a Crown strategy.
In conclusion, the witness J.P.M. was properly compellable at the trial of R.J.S., and the trial judge erred in quashing the subpoena. His proposed testimony falls to be governed by the general rule applicable under the Charter, pursuant to which a witness is compellable to testify, and pursuant to which such a witness receives evidentiary immunity in compensation. In the context of this appeal, the overriding principle against self-incrimination is satisfied by this structure. I turn now to the final issue which engages this selfsame principle, namely, the nature of the immunity protection required.
(d)Immunity Protection Under the Charter
Once it has been established that a witness who is compellable under the general rule will receive, in return, immunity protection only, then there is little reason to suppose that a provision which purports only to abolish the common-law privilege against self-incrimination (such as s. 5 of the Canada Evidence Act) might be impugned by the Charter. In this regard, I note that it was suggested in Thomson Newspapers, supra, that the absence of derivative-use immunity in s. 5(2) of the Canada Evidence Act might be a fatal deficiency; see also Dubois, supra. However, as La Forest J. noted in Thomson Newspapers, "where the statute does not provide for the evidence to be admitted, there can really be no breach of the Charter until unfair evidence is admitted" (p. 559).
In other words, s. 5(1) of the Canada Evidence Act abolishes the common-law privilege against self-incrimination, with the result that a compellable witness must answer questions posed. Section 5(2) offers such a witness protection in the form of an immunity. Neither subsection purports to make evidence of any kind necessarily admissible at a subsequent proceeding, and like La Forest J. in Thomson Newspapers, supra, I would not strain to
read the provision this way. Thus, if an immunity larger than the one provided by s. 5(2) is required by the Charter, nothing in the Canada Evidence Act would offend the requirement.
To my mind, an analysis which suggests the opposite confuses the Charter with the Fifth Amendment of the United States Constitution. As already described, that amendment constitutionalizes the common-law testimonial privileges. In this context, it has been held that the abrogation of the privilege must be met with a coextensive immunity protection by way of statute. The extent of protection required was initially thought to be transactional immunity (freedom from prosecution, see Counselman, supra), but this position was later pared back to favour a requirement for complete derivative-use immunity: Kastigar v. United States, 406 U.S. 441 (1972).
What should be obvious in the American context, but perhaps is not, is that a statute in that country which purports to abrogate a testimonial privilege is in direct violation of the Fifth Amendment. As a general rule, a statute which purports to do the same thing in Canada is in direct violation of nothing at all. A comparable situation could arise here only in the unlikely event that a statute purported to abrogate s. 11(c) of the Charter, so as to render an accused person compellable. Although I reject the idea in the context of the general rule of witness compellability (and express no comment outside of that context), I can only envision the need to strike down s. 5 at this stage if I assume that a compelled witness needs more immunity than s. 13 of the Charter offers, and if I further assume that the additional immunity is susceptible only of a legislative solution because of its complexity: see, e.g., Haywood Securities, supra, per Lambert J.A. dissenting.
Thus, I do not believe that s. 5 of the Canada Evidence Act can be impeached at this stage of the analysis, and the only real question is whether s.
13 of the Charter exclusively defines the scope of the available evidentiary immunity. In other words, is protection against derivative evidence required? Of course, to the extent that protection against the subsequent use of evidence has become my focus at this stage, my answer to this question takes me beyond the necessary confines of this appeal. Once it is said that J.P.M. is compellable and that s. 5 of the Canada Evidence Act is not now endangered, the principal part of this appeal has been resolved. This point notwithstanding, a complete treatment of the topic requires some discussion of immunity.
In the analysis above, I discussed derivative evidence in general terms, and characterized it as being evidence which comes to light as a result of a compelled disclosure. This reference was deliberate and it was offered in anticipation of the following terminological debate:
Assuming that the protection against the use of compelled evidence extends to the use of derivative evidence, there remains a fundamental problem in defining "derivative evidence". There are four possible types of evidence that might be categorized as derivative: (1) evidence that could have been discovered only as a result of the testimony; (2) evidence that was discovered as a result of the testimony, but that could have been discovered without such testimony; (3) evidence that would, or would probably, have been discovered even without the testimony; and (4) evidence that was discovered after the testimony was given, but independently of the testimony.
(Ontario Law Reform Commission, supra, at p. 125.)
As I use the term, evidence is "derivative" if it results, in fact, from a compelled disclosure. I agree with Wilson J.'s statement in Thomson Newspapers, supra, to the effect that "causality is the sine qua non of derivative evidence" (p. 484). Only evidence which comes to light as a result of a compelled disclosure interests me here. There is little, if any, relationship between independently
obtained evidence and the principle against self-incrimination.
As regards other kinds of evidence, however, a relationship may be evident. As a point of terminology, though, I wish to emphasize that all evidence arising from a compelled disclosure is "derivative evidence". The question whether some of that evidence ought to be excluded under the Charter invokes a separate analysis. That analysis is logically geared toward defining the possible scope of "derivative-use immunity". An immunity might be coextensive with the category of evidence to which it is responsive, or it might not. The point is that the label "derivative evidence" is not of conclusive importance under a Charter which operates in immunity terms.
To proceed I ask: what, if anything, does the Charter demand in respect of derivative-use immunity? In the analysis to follow, I will suggest that the Charter does not demand absolute derivative-use immunity, and to that extent I will agree with the second polar view described above which has been advanced by Paciocco, supra. However, I will also disagree with Paciocco in that I believe it is necessary to recognize a residual kind of immunity to protect the operation of the Charter as a meaningful system. I will invoke three points of support for these conclusions: first, I will note that there are significant problems inherent in the idea of full derivative-use immunity; second, I will discuss the history of s. 5(2) of the Canada Evidence Act, and I will suggest that this history informs the interpretation of the Charter; third, I will discuss s. 24(2) of the Charter.
As already noted, the United States Supreme Court in Kastigar, supra, established that a statute could legitimately purport to abrogate the Fifth Amendment of the United States Constitution if the statute replaces its protection with co-extensive immunity, which was characterized in Kastigar, supra as being complete derivative-use immunity.
In moving to this position, the Court backed away from the perceived authority of Counselman, supra, that a coextensive immunity resides only in the complete freedom from prosecution, or transactional immunity. However, although there is a legitimate difference in theory between derivative-use and transactional immunity, the practical difference between these protections may be negligible indeed. I agree with the following commentary from Thomson Newspapers, supra, at pp. 557-58 (per La Forest J.):
[T]he practical effect of conferring derivative use immunity is in many cases virtually indistinguishable from the conferral of immunity from prosecution; see M. Berger, Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination (1980), at p. 72. That is because it is in many cases extremely difficult for the prosecution to prove that the evidence it seeks to introduce against an accused who has been compelled to testify is not in fact derived from that testimony. It must be remembered that it would not be enough for the Crown to prove simply that the evidence could have been obtained independently of their testimony; that would not preclude actual reliance on the leads found in the compelled testimony. Instead, it must be proved that the evidence was in fact found independently of the compelled testimony. In the wake of an even relatively complex investigation where many different and reinforcing leads and mere hunches have played a part in guiding the investigators, what could possibly constitute such proof?
As La Forest J. proceeds to discuss in Thomson Newspapers, the effect of a complete derivative-use immunity may be to afford the compelled witness an "immunity bath", or a complete transactional immunity in respect of matters touching upon the compelled testimony.
My concern with respect to the difficulty of distinguishing an absolute derivative-use immunity from a transactional immunity relates to the second point I will discuss, namely, the relevance of s. 5(2) of the Canada Evidence Act. For the
present, however, I simply wish to note that the drafters of the Charter would have been well aware of the American experience when they devised s. 13. If they had intended to provide complete derivative-use immunity, and if they had formed this intention when aware of its practical implications, why would they not have given effect to those implications in direct terms? That is, if the drafters intended that testimony might be purchased at the price of prosecutorial immunity, why did they not simply say so? Why would the framers choose to establish such protection indirectly, through the part-protection of an evidentiary immunity which could not be given effect according to its terms? If I were to hold that the Charter requires derivative-use immunity, I would find these questions difficult to answer.
In point of fact, however, I do not find these questions troubling at all, and again I suggest that primary regard must be had for the language used in the Charter. I have already described how ss. 11(c) and 13 of the Charter are seemingly an attempt to constitutionalize the approach previously evident in the Canada Evidence Act. This being the case, in an effort to determine the extent of immunity protection which was envisioned by the drafters, is it not relevant to consider what s. 5(2) of the Canada Evidence Act protected? In my view, it most certainly is.
Indeed, I think a comparable analysis was invoked by L'Heureux-Dubé J. in Thomson Newspapers, supra, where she stated (at p. 581):
Pre-Charter cases involving derivative evidence establish that the protection afforded by s. 5(2) of the Canada Evidence Act did not extend beyond the actual testimony of the witness. Evidence of facts discovered as a result of the testimony was not covered by the immunity available under that provision. [Emphasis in original.] Although L'Heureux-Dubé J. referred in this passage to s. 5(2) as protecting only "testimony", I
think it is clear that she meant to indicate that s. 5(2) never established derivative-use immunity. That is, she did not mean to indicate that s. 5(2) never protected against the subsequent use of "real" evidence, since that did sometimes occur: e.g., Attorney-General v. Kelly (1916), 28 D.L.R. 409 (Man. C.A.); but cf. R. v. Simpson, [1943] 3 D.L.R. 355 (B.C.C.A.). Protection of real evidence under s. 5(2), however, proceeded on the basis that the compelled disclosure of such evidence could be considered an "answer" within the meaning of the provision. It does not follow, however, that the "answer" was further protected by way of derivative-use immunity in respect of clue facts. That is, evidence brought to light as a result of a compelled disclosure was not protected.
We are not asked today to consider the wisdom of s. 5(2)'s historical interpretation: see Re Ginsberg (1917), 38 D.L.R. 261 (Ont. S.C., App. Div.), at p. 264. In so far as s. 5(2) suggests that an answer shall not be "used or admissible in evidence" at subsequent proceedings, it could logically sustain an interpretation which favours derivative-use immunity. Wigmore acknowledged this point, but also recognized that, in Canada, "this type of statute is given effect according to its terms, without regard to its possible inefficacy in removing all risk of subsequent prosecution through clues obtained" (supra, [sect ]2283, at p. 525). It is, of course, open to Parliament to offer statutory protection "greater in scope than comparable rights affirmed by our Constitution": R. v. Kuldip, [1990] 3 S.C.R. 618, at p. 638. That point of statutory interpretation aside, however, it is clear enough that those who drafted the Charter regarded s. 5(2) of the Canada Evidence Act as a provision which offered only simple-use immunity, and not derivative-use immunity.
In assessing the extent of immunity protection available in the Charter, therefore, primary regard must be had for s. 13 of the Charter, which reproduces an immunity protection using language nearly identical to that which appears in s. 5(2) of the Canada Evidence Act. Note that in Kuldip, supra, Lamer C.J. stated that "[s]ection 5(2) and s. 13 offer virtually identical protection" (p. 642). Consequently, it would seem to me that those who framed the Charter made an explicit decision to favour a kind of immunity protection, namely, the simple-use immunity formerly available under the Canada Evidence Act, and they simultaneously eschewed absolute derivative-use immunity.
That not all derivative evidence is worthy of the protection afforded to self-incriminatory testimony is further supported by an examination of this Court's jurisprudence under s. 24(2). At the same time, however, that jurisprudence discloses the need for some protection. Indeed, this examination can show that the development of a residual role for s. 7 can enhance the operation of the Charter as a system, and result in the coherent recognition of a principle against self-incrimination.
To begin this examination, I quote at length from the judgment of La Forest J. in Thomson Newspapers, supra. In his reasons, La Forest J. acknowledged a distinction between compelled testimony and derivative evidence which I think is fundamental to an immunity solution. That distinction is the distinction between evidence which is created, and evidence which is merely located or identified. La Forest J. stated (at pp. 549-50):
It is only when the testimony itself has to be relied on [at a subsequent proceeding] that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the "clues" provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been.
Seen from this light, it becomes apparent that those parts of derivative evidence which are incriminatory are only self-incriminatory by virtue of the circumstances of their discovery in a particular case. They differ in this respect from incriminatory portions of the compelled testimony itself, which are by definition self-incriminatory, since testimony is a form of evidence necessarily unique to the party who gives it. [Emphasis in original.]
Stated succinctly, compelled testimony is evidence which has been created by the witness, whereas derivative evidence is evidence which has independent existence. It is only the class of created evidence which is, by definition, self-incriminatory.
This distinction between evidence created by the accused and evidence which has an independent existence has been offered in relation to s. 24(2) as well. In R. v. Collins, [1987] 1 S.C.R. 265, Lamer J. dealt with the problem of an improperly obtained confession. In this context, he drew a distinction between real evidence and self-incriminatory evidence and suggested that admission of the former would rarely bring the administration of justice into disrepute. But as La Forest J. discussed in Thomson Newspapers, supra, Collins does not purport to draw a final distinction between real evidence and self-incriminatory evidence. Rather, Lamer J. in Collins emphasized that "real evidence existed irrespective of the violation of the Charter" (p. 284), whereas in the case of a confession, "the accused is conscripted against himself" (p. 284) such that the fairness of the trial is affected. The important point to highlight from Collins is the
suggestion that evidence (such as a confession) which the accused creates will be regarded as self-incriminatory, whereas other, independently existing evidence may not.
The fact that independently existing evidence which is obtained after a Charter breach may nonetheless fail to be excluded under s. 24(2) goes some distance toward destroying the suggestion that absolute derivative-use immunity is desirable. If evidence derived from a Charter breach can be admitted on the theory that its use will not bring the administration of justice into disrepute, how then can it be said that to admit any evidence derived from compelled testimony would be contrary to the principles of fundamental justice? To make this argument is to suggest, inferentially, that the admission of evidence which offends the principles of fundamental justice does not bring the administration of justice into disrepute. How can this be? As L'Heureux-Dubé J. observed in Thomson Newspapers, supra, "[t]o state the question is to answer it" (p. 582).
Thus it again appears that there is no requirement for derivative evidence to be excluded in toto under the Charter. But does s. 24(2) have anything to say about a partial derivative-use immunity under s. 7? Have any meaningful rules developed in this regard? In the discussion below, I will review the following thesis, namely, that under s. 24(2) of the Charter, evidence has been excluded on the theory that, practically speaking, it could not have been obtained but for a pre-existing Charter violation.
In the quotation from Thomson Newspapers, supra (per La Forest J.) offered above, it was pointed out that there is a clear distinction in the case of compelled testimony between evidence which the accused is forced to create, and evidence which has an independent existence. Testimony is created; all derivative evidence has independent existence. Part of the difficulty in understanding cases decided under s. 24(2), however, arises
because the distinction may be less clear-cut in that context. On the one hand, it is clear that pre-trial statements obtained from an accused person are created by the accused. They are like testimony in that regard. But with respect to all other kinds of evidence, independent existence may be difficult to define. Although evidence which does not result from a verbal utterance will generally have a physical character to it (e.g., blood, a visually observed identity or phenomenon, a weapon, or drugs), such evidence may not exist as evidence per se without the intermediate participation of the accused. In such cases, I believe that a determinative consideration has been whether the evidence could have been obtained by the state but for the accused's participation following a Charter breach.
In R. v. Pohoretsky, [1987] 1 S.C.R. 945, for example, the accused was incoherent and delirious when a doctor took a blood sample without his consent and at the request of a police officer. The Crown conceded that a violation of s. 8 of the Charter thus occurred, and, in the analysis under s. 24(2), Lamer J. affirmed that the evidence was improperly admitted at first instance. Lamer J. stated (at p. 949):
They took advantage of the appellant's unconsciousness to obtain evidence which they had no right to obtain from him without his consent had he been conscious. The effect of their conduct was to conscript the appellant against himself.
I think it is implicit in the notion that the authorities "had no right to obtain" the blood, that the evidence could not have been obtained in Pohoretsky but for the pre-existing Charter breach. No blood sample was independently available to the police on the facts, and there was no legal authority which could have been used to obtain one. That is, the accused's blood existed; a legally available blood sample did not.
In a similar way, in R. v. Ross, [1989] 1 S.C.R. 3, the accused's right to counsel under s. 10(b) of the Charter was infringed, and the accused were
subsequently identified in a police line-up. In holding that the identification evidence ought to have been excluded, Lamer J. first noted that "it is clear that there is no legal obligation to participate in a line-up", such that "it is clear that counsel has an important role in advising a client about participating voluntarily" (p. 13). Then, in this context, Lamer J. stated (at p. 16):
Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair. In Collins we used the expression "emanating from him" since we were concerned with a statement. But we did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of evidence. I am of the opinion that the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair. [Emphasis added.]
As Lamer J. proceeded to note in Ross, it is possible to distinguish identification evidence per se from line-up evidence, in that the latter "could not have been obtained but for the participation of the accused in the construction of the evidence" (p. 17). To be sure, mere identification evidence could have been otherwise obtained by the state in Ross, but not line-up evidence, and it was line-up evidence which the Crown adduced. On the facts, the accused had not formerly taken part in a line-up (i.e., there was no pre-existing voluntary line-up evidence), and the accused could not have been compelled to participate in one.
If applied to the opposite effect, the thesis I advance can also be used to explain the result in R. v. Black, [1989] 2 S.C.R. 138. In Black, after a violation of s. 10(b) occurred, an accused helped the police to identify a particular knife as the murder
weapon. Wilson J. first acknowledged that the knife, as a tangible item, was evidence which "did not come into existence as a result of the participation of the accused" (p. 164). But she also emphasized that this independently existing item would probably have been identified by the police even without the assistance of the accused. She stated: "I have little doubt that the police would have conducted a search of the [accused's] apartment with or without her assistance and that such a search would have uncovered the knife" (p. 164); see also at p. 165. Thus, she focused not on the mere fact of the knife's classification as real evidence, but rather on the question whether, as real evidence, it could have been found without the accused's voluntary participation.
The question whether evidence could have been obtained had the police not infringed the accused's rights, and in that fashion compelled his participation in the creation of a case, also dominated the analysis in R. v. Wise, [1992] 1 S.C.R. 527. In Wise, a tracking beeper was installed on an accused's vehicle, and the Crown acknowledged that the installation constituted an unreasonable search in violation of s. 8 of the Charter. However, in determining that the evidence would not be excluded by s. 24(2) of the Charter, Cory J. emphasized that comparable evidence was obtained without the unknowing participation of the accused. He stated (at p. 543):
In this case, the use of the beeper merely assisted the police to gather evidence which, to a great extent, they had obtained by visually observing the vehicle. It is difficult to determine from the transcript what evidence was obtained from the beeper and what was obtained from observation. In light of the unsophisticated nature of the beeper, it seems that the essential evidence was obtained by direct observation. In any event, evidence as to the movement of the vehicle was certainly not "undiscoverable".
On the facts of Wise, Cory J. had already concluded that the tracking evidence could be characterized as "real" evidence. An analysis of the
extent to which this evidence was otherwise discoverable only informs the analysis under s. 24(2) if one assumes that it is important to consider whether evidence could have been obtained but for the accused's participation. That is, the "real-evidence" label was not determinative.
At some level, though, and with due regard for Cory J.'s conclusion in Wise that the tracking evidence in that case was "real" evidence, one senses that the accused in Wise, by driving his car, was engaged in the creation of evidence. However, the importance of this perception pales when R. v. Mellenthin, [1992] 3 S.C.R. 615, is examined. In Mellenthin, a driver at a random check stop was subjected to an unreasonable search of his vehicle. That search disclosed the presence of illegal drugs. Cory J. quoted from both Ross, supra, and Thomson Newspapers, supra, and with respect to the trial judge's finding that "the evidence, although real, could never have been discovered but for the illegal search", stated (at p. 628):
In the case at bar, the trial judge could certainly not be said to have acted unreasonably in concluding that the evidence (the marijuana) would not have been discovered without the compelled testimony (the search) of the appellant.
In the result, Cory J. concluded that the evidence flowing from the illegal search would impact upon the fairness of the trial, and it was excluded on that basis without further consideration of the factors listed in Collins, supra (the seriousness of the Charter violation, and the effect of exclusion). This occurred even though it would be difficult to argue that the accused had, in any sense, created the drugs.
Finally, I would call attention to R. v. Colarusso, [1994] 1 S.C.R. 20, in which blood and urine samples were initially taken from an accused by hospital staff. These samples were then seized pursuant to legal authority vested in a coroner. However, following that first legal seizure, the
police executed what amounted to a second unreasonable seizure. On the question whether resulting evidence was properly excluded under s. 24(2) of the Charter, La Forest J. first noted that while the labels "real" and "conscriptive" have attained importance in the jurisprudence, "the mere fact that the impugned evidence is classified as either real or conscriptive should not in and of itself be determinative" (p. 74). And, although La Forest J. indicated that the samples could be regarded as real evidence because of the first legal seizure, he also stated (at pp. 75-76):
The importance of determining that the blood sample was real evidence goes only so far as it demonstrates that the sample was given by consent and existed independently of the subsequent Charter violation. The coercive powers of the state played no role in creating the sample which was ultimately used to incriminate the appellant. As I discussed in R. v. Wise, supra, at p. 570, the prior existence of the sample is important in that it demonstrates "that (the sample) could have been discovered in any event". In my view, the independent and prior existence of the sample completely apart from any s. 8 infringement by the state is an important consideration weighing on the side of allowing the introduction of the evidence.
To this I would merely add that the samples could have been obtained in Colarusso without the assistance of the accused. As La Forest J. stated, charges had been laid, the police were aware of the samples, and "[i]f the coroner had not intervened and seized the sample, the officers would inevitably have obtained a warrant for the samples at the very first opportunity" (p. 77).
It will be observed in these cases that the question of the accused's participation is important. In some, it can be seen that the state has already become interested in the affairs of the accused, and the problem lies in determining whether the evidence consciously desired by the authorities could have been obtained without the accused's voluntary participation. Relevant considerations in this regard include whether the impugned evidence
already existed, and, if it did, whether the state could legally compel its availability (see, e.g., Ross, supra; Wise, supra; Black, supra; and Colarusso, supra). In other cases, it may be that without the Charter breach the state would not have become interested in the accused at all (see, e.g., Mellenthin, supra).
Common to both kinds of cases, however, is the realization that the pre-existing Charter breach is relevant to the question of participation. Of course, it might always be argued that even without the pre-existing Charter breach, an accused might choose to cooperate with the state. It might be argued, for example, that the accused in Ross, supra, might have consented to participate in the line-up even if they had obtained legal advice. However, comparable arguments were considered and rejected in both Black, supra, and R. v. Elshaw, [1991] 3 S.C.R. 24. In the latter case, it was stated that (at p. 44):
No one can speculate what the appellant might have said or done at the time of his detention had he been advised of his right to counsel or even of his right to remain silent. To base admission on the ground that he might have confessed completely undermines the enshrinement of the right to counsel in the Charter. [Emphasis in original.]
In other words, under s. 24(2), we are not willing to assume that an accused would knowingly assist the state in its effort to establish a case. The timing of the Charter breach becomes important. Once a breach occurs, any evidence thereafter obtained which could not have been obtained but for the voluntary assistance of the accused will tend to be regarded as self-incriminatory evidence which impacts upon the fairness of the trial. It is generally assumed that, but for the breach, the accused would not have cooperated.
In this regard, I return to the seminal authority on s. 24(2), Collins, supra. In Collins, Lamer J. stated (at p. 284):
[T]he situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or
other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.
This continues to be a correct statement of the law. It is only necessary to add that any kind of evidence can be evidence "emanating from" an accused: see Ross, supra. Moreover, to the extent it is relevant to consider whether evidence "did not exist prior to the violation", the reference here is to evidence qua evidence. Physical objects, observations, and bodily fluids may exist prior to a Charter breach, but they do not exist as evidence unless the state has a means to acquire them for trial. This is what I take from Lamer J.'s statement in Ross, supra, to the effect that the evidence of concern is "evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial" (p. 16 (emphasis added)).
Thus, I think it is clear that under s. 24(2), we tend to regard as self-incriminatory not only that evidence which is manifestly created by an accused (such as a pre-trial statement), but also any evidence which could not have been obtained by the state from the accused but for the Charter violation. I regard this state of the law as having obvious implications for s. 7 and the question of derivative-use immunity.
Under s. 24(2), evidence which would render a trial unfair tends to be excluded under the first branch of the Collins, supra, analysis. In Elshaw, supra, it was indicated that a consideration of the second factor from Collins, namely, the seriousness of the Charter violation, cannot strengthen the case in favour of admissibility. Thus, to the extent that trial fairness is affected by self-incriminatory evidence, and that is necessarily the case (Collins, supra), exclusion tends to be the result. Once it is recognized that the admission of evidence would render a trial unfair, "the seriousness of the offence
[cannot] render that evidence admissible" (Collins, supra, at p. 286). As stated by J. Sopinka, S. N. Lederman and A.W. Bryant, The Law of Evidence in Canada (1992), at p. 407, "[o]nce impugned evidence has been found to come within the trial fairness rationale, exclusion is virtually certain to follow".
Turning back to the problem of compelled testimony, then, I see no reason not to draw the obvious analogy. Since it is the principle against self-incrimination which is at stake, and since that principle finds recognition under s. 24(2) as I have described, we should avoid the incongruity which would result if a different quality of protection was offered to the witness who is compelled to answer questions. The Charter should be construed as a coherent system: Hebert, supra. Accordingly, I think that derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.
Since this test for exclusion can only arise in the context of proceedings subsequent to a witness's testimony, I am hesitant to elaborate further upon the test I propose here. Its form will become known, as it should, in the context of concrete factual situations. By way of conclusion, however, five further comments of a general nature are warranted.
First, I have developed a residual derivative-use immunity with primary regard for s. 7 of the Charter. However, as La Forest J. observed in Thomson Newspapers, to the extent that it is a concern for trial fairness which predominates the analysis, the analysis could properly proceed with reference to the more specific language of s. 11(d). But since
the same issues would fall to be considered under either provision, I think an examination under s. 7 is sufficient -- if not exhaustive -- in this case.
Second, during the examination of s. 24(2) above, it was noted that, once a Charter breach occurs, we will not assume that an accused would knowingly cooperate in the creation of a case to meet. In the context of testimony, different considerations may arise. That is, with respect to testimony there will be no pre-existing Charter breach to consider, but only the fact of testimony itself, and testimony can be analyzed only according to its voluntary or compelled nature. In the case of voluntary testimony, it might be possible to infer that a witness has chosen to cooperate with authorities from the outset, such that the testimony is akin to evidence obtained after a waiver of Charter rights. Of course, when a waiver occurs, there is no need to consider exclusion under s. 24(2). I express no opinion, however, about whether derivative-use immunity might sometimes be unavailable to the voluntary witness, since the facts of this appeal involve a witness who resists testimony.
Third, I have expressed the test for exclusion as involving the question whether evidence could have been obtained but for a witness's testimony. I wish to emphasize that in using the word "could" in this context, I am proposing an inquiry into logical probabilities, not mere possibilities. At some level, all evidence which has independent existence could have been located by authorities. The important consideration, however, is whether the evidence, practically speaking, could have been located. That is, would the evidence, on the facts, have otherwise come to light? Logic must be applied to the facts of each case, not to the mere fact of independent existence.
Fourth, the manner of exclusion requires some analysis. In Thomson Newspapers, supra, La Forest J. proposed a flexible mechanism to govern exclusion, such that (at p. 561):
[D]erivative evidence that could not have been found or appreciated except as a result of the compelled testimony . . . should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice.
He grounded this mechanism in the common-law ability of judges (constitutionalized in s. 11(d) of the Charter) to protect a fair trial by excluding evidence after considering its prejudicial effect and probative value.
Some of what concerned La Forest J. in Thomson Newspapers was the form in which the trial judge's discretion exists. That concern has now been resolved by a majority of this Court in Seaboyer, supra, such that the exercise of the discretion "will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission": Sweitzer v. The Queen, [1982] 1 S.C.R. 949, at p. 953. This resolution has finally laid to rest concerns about the restrictive formulation emanating from Wray, supra.
The exclusion of derivative evidence ought to be governed by the discretion as described in Seaboyer, supra, and Sweitzer, supra. Even under s. 24(2), there is no automatic rule of exclusion. We have consistently held only that self-incriminatory evidence impacts upon trial fairness, and concluded that evidence which impacts upon trial fairness should tend to be excluded: see Jones, supra, at pp. 255-56. By analogy, therefore, there should be no automatic rule of exclusion in respect of any derivative evidence.
However, it must be further observed that evidence which impacts upon trial fairness, such as self-incriminatory evidence, is almost always excluded under s. 24(2). Thus, in the majority of
cases the trial judge's discretion will likely be exercised in favour of exclusion with regards to derivative evidence which could not have been obtained but for a witness's testimony. I do not believe that La Forest J. meant to express anything different in Thomson Newspapers. It must be observed that, in formulating the test for exclusion in that case, La Forest J. was considering not simply the subcategory of derivative evidence which has concerned me here, but rather the entire category of derivative evidence. It was only in this context that La Forest J. stated (at p. 562):
It suffices to say that however prejudicial particular instances of derivative evidence may be in other law enforcement contexts, the instances where such evidence could be said to be prejudicial to those who are compelled to testify under s. 17 of the Combines Investigation Act, and are later charged with an offence under the Act, are likely to be somewhat rare.
To the extent that this comment refers to derivative evidence as a whole, I agree with it, inasmuch as I have already suggested that only a particular category of derivative evidence requires a response. And with respect to that particular category, moreover, it is instructive to note that La Forest J. predicted a much different exercise of the discretionary power when he stated: "The one thing the power to compel testimony will never allow anti-combines investigators to use as evidence, however, is information they could not otherwise have uncovered" (p. 562 (emphasis added)). Thus, there is no inconsistency between the flexible approach proposed in Thomson Newspapers and the notion that derivative-use immunity will generally lead to exclusion. I will not try to imagine today the factual circumstances in which derivative-use immunity might not be protected. When, if ever, that might occur, is an issue I leave for another day.
I should also add that, contrary to my colleague L'Heureux-Dubé J.'s view, all that I have said in these reasons is directed at testimonial compulsion
and should not be taken as putting in jeopardy schemes relating to other forms of compulsion such as breathalyzers, fingerprinting, blood sampling and other similar schemes. Those arrangements are not before us and, in my view, raise other issues that are different from those involved in testimonial compulsion, which I need not address.
Finally, the burden of proof must be considered. In this regard, I see no reason to depart from the general Charter rule pursuant to which the party claiming a Charter breach must prove that breach on a balance of probabilities. Thus, it should fall to the accused to demonstrate that proposed evidence is derivative evidence deserving of the limited immunity protection I have described. In some circumstances, the disclosure of the Crown's case may help the accused to realize that evidence was obtained independently, or it may seem obvious that derivative evidence could have been obtained by the Crown in any event: see Stinchcombe, supra.
When this is not true, however, the accused can raise the issue with the trial judge by demonstrating a plausible connection between the proposed evidence and prior testimony. The role of the voir dire cannot be avoided. In respect of this burden on the accused, however, it must be recognized that the accused can do little more than point to the plausible connection. As a practical matter, the burden is likely to be borne by the Crown, since it is the Crown which can be expected to know how evidence was, or could have been, obtained. In this regard, the following statement from Sopinka, Lederman and Bryant, supra, at p. 397, regarding the burden under s. 24(2) is apposite:
[T]he true burden is in practice bound to drift towards the Crown, since many factors in the equation are within the peculiar knowledge of the Crown (e.g., good faith, urgency, availability of other investigative techniques); and, perhaps more important, it is the Crown
that is functionally responsible for the maintenance of the administration of justice.
This statement was recently approved in R. v. Bartle, [1994] 3 S.C.R. 173, at p. 210 (per Lamer C.J.). The course of an investigation, and the factors which influence it, are matters which are likely to be within the peculiar knowledge of the Crown.
(e)Conclusion
I conclude, then, that the witness J.P.M. was properly compellable in this case. In the context of R.J.S.'s criminal trial, J.P.M. cannot properly claim any protection as broad as a right to silence or a privilege against self-incrimination. His testimony is compellable under the general rule applicable to all witnesses, and the principle against self-incrimination is satisfied if he is accorded sufficient immunity protection. Sufficient immunity protection is not the same as absolute derivative-use immunity. Rather, the principle is satisfied if J.P.M. receives the simple-use immunity provided by s. 13 of the Charter, together with a residual derivative-use immunity in respect of evidence which could not have been obtained but for his compelled testimony. This residual immunity will be given recognition by the trial judge through the exercise of a discretion, but exclusion will be the likely result because the self-incrimination principle demands the preservation of trial fairness.
D. The Appeal to this Court
The Crown argued that R.J.S. had no right of appeal to this Court because his appeal caused to him to assert rights and privileges personal to the non-party witness J.P.M. The Crown founded its argument entirely in the following passages from the Law Reform Commission of Canada, Report on Evidence (1975), at pp. 29 and 78):
37.Only the holder of a privilege may, on appeal, allege error on a ruling disallowing a claim of privilege.
Section 37: Privileges, in the main, protect personal rights of the holder. Therefore, an appeal on the grounds of an alleged erroneous denial of a privilege can only be taken if the party appealing is the holder of the privilege. An infringement of someone else's right should not be the basis of a party's appeal.
This is not a new argument. Wigmore recognized the personal character of privileges and indicated that if a privilege is not claimed by a witness, there can be no cause for complaint by the parties.
But when a privilege has been claimed and the court has ruled improperly, a different situation obtains. Wigmore indicated the need to distinguish two categories of cases: first, those in which the claim was improperly rejected, such that no party should have a cause for complaint because the error "has not introduced material which in any way renders less trustworthy the finding of the verdict" (supra, [sect ]2196, at p. 112); second, those in which the privilege has been wrongly affirmed, in which "the party who desired the testimony has obviously lost evidence which by hypothesis is relevant and might have assisted the establishment of the truth of his cause" (p. 113).
Assuming that this is the state of the law, and that is an issue which does not confront me, the Crown's argument confuses two propositions. Even if it is true that the accused should not be able to appeal a claim of privilege rejected at trial, it does not follow that the accused should not, on appeal, be permitted to argue in support of a privilege which was affirmed. By extension, the
Crown's argument would have the accused stand mute in the Court of Appeal, and not argue in support of an acquittal. The Crown raised the question of law associated with J.P.M.'s rights and privileges on appeal below, and it would ill comport with our system of law to suppose that R.J.S. had no right to respond. An appeal to this Court is simply an extension of R.J.S.'s response. Once the appeal process has begun, I see no reason to regard the absence of the witness whose privilege is at issue as an obstacle for the accused when it is not an obstacle for the Crown.
It follows that R.J.S. could properly raise a question of law based upon the compellability of J.P.M. as a witness, that question having been raised initially by the Crown before the Court of Appeal. Accordingly, this Court had jurisdiction to consider this appeal.
E. The New-Trial Order
As an alternative position, the appellant argued that the Court of Appeal erred by ordering a new trial. That order was made pursuant to s. 686(4)(b)(i) of the Criminal Code. It is well established that to obtain an order for a new trial after a successful appeal against acquittal, the Crown must "satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury": Vézeau v. The Queen, [1977] 2 S.C.R. 277, at p. 292. In R. v. Morin, [1988] 2 S.C.R. 345, at p. 374, Sopinka J. stated that "the onus is a heavy one and . . . the Crown must satisfy the court with a reasonable degree of certainty".
The appellant's only argument is that, notwithstanding the trial judge's rejection of J.P.M.'s testimony, an acquittal would necessarily have resulted at trial because the Crown could not prove continuity in respect of the physical evidence. Whether or not the Crown's case could prove continuity, however (and I make no comment on that
issue), the new-trial order was appropriate. By adducing evidence from the business owner, Chung, the Crown offered evidence that "the goods were stolen and . . . that a break-in occurred": R. v. Kowlyk, [1988] 2 S.C.R. 59, at p. 70. It is apparent that the Crown planned to link R.J.S. to this alleged offence by demonstrating that R.J.S. was in possession of certain property, and by asking the trier of fact to consider that "the unexplained recent possession of stolen goods, standing alone, will also warrant an inference of guilt of breaking and entering and theft": Kowlyk, at p. 72. Detective Constable Carter testified for this purpose. In so far as the property officer was not called, however, it is possible to argue that the Crown faced a continuity problem.
The Crown did not concede a continuity problem, however. Crown counsel only made a general concession to the effect that its case did not meet the criminal standard of proof. Since there is to be a new trial, it would be inappropriate for me to comment further on the continuity issue. Suffice it to say that, irrespective of the Crown's effort to link R.J.S. to the alleged offence by focusing on his alleged possession of certain property, the Crown had also planned to link R.J.S. to the alleged offence by offering the eyewitness evidence of J.P.M. The Court of Appeal was correct to order a new trial in these circumstances, since it cannot be said that the verdict would necessarily have been the same if J.P.M. had testified.
VI. Disposition
I would answer the constitutional questions stated on July 19, 1993 in the following way:
1.[Does] s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, infringe[] s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
2.If the answer to question 1 is affirmative, is the limitation one which is reasonable, prescribed by law, and demonstrably justified pursuant to s. 1 of the Charter?
Answer: It is not necessary to answer this question.
I would dismiss the appeal.
The reasons of L'Heureux-Dubé and Gonthier JJ. were delivered by
INDEX
I.Facts
II.Relevant Constitutional and Statutory Provisions
III.Parties' Submissions
IV.Analysis
A.The Common Law
1.The "Case to Meet" Principle
2.The Confessions Rule
3.The Rule on Admission of Illegally Obtained Evidence
4.Exceptions to Compellability
5.Abuse of Process
6.Summary
B.The Charter
1.Section 13
2.Section 7
(a)The Principle of Fundamental Justice Against Self-Incrimination
(i)Rejection of the Principle of "But For" Derivative Immunity
(ii)Practical Implications of Derivative "But For" Immunity
(iii)Theoretical Inconsistencies of "But For" Immunity
(iv)Further Rationales for Regarding the Principle Against Self-Incrimination as Communicative in Character
(b)The Right to Silence
(i)The Threshold at Which the Right to Silence is Triggered
(ii)The Rationale for Permitting Compellability Pursuant to a "Valid State Purpose"
(c)The Interaction between Sections 7 and 24(2)
C.The Principles of Fundamental Justice: Fundamental Unfairness
D.Problems with Addressing this Issue Solely on the Basis of Non-Compellability
E.Conclusion
V.Disposition
The present appeal raises the question of whether it is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms for a person, here J.P.M., charged separately with an offence, to be compellable as a witness in the criminal trial of another person, here R.J.S., charged with an offence arising from the same set of circumstances. In this regard, the following constitutional questions were stated by this Court:
1.[Does] s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, infringe[] s. 7 of the Canadian Charter of Rights and Freedoms?
2.If the answer to question 1 is affirmative, is the limitation one which is reasonable, prescribed by law, and demonstrably justified pursuant to s. 1 of the Charter?
I have had the advantage of reading the reasons of Iacobucci J. and although I agree with the result
he reaches, I cannot agree with the approach he proposes. I believe his derivative evidence approach to raise serious practical concerns and to characterize incorrectly the nature of the principle against self-incrimination at common law and under the Charter. Moreover, since drafting these reasons, I have read the reasons of Sopinka J. With respect, although I believe that we differ in degree rather than in principle, in my view his proposed approach places too much emphasis on determinations at the time the witness is sought to be compelled, and consequently requires courts to speculate unduly on issues which they will generally be in a better position to assess at the time of the witness's own trial. I set out below an approach which I believe to be most consistent with both the common law in Canada and the Charter and which in my opinion represents, at the same time, a pragmatic, efficient, and fair compromise between the opposing interests of the compelled witness and the state.
The present case requires that we address two somewhat interrelated issues. First, whether and to what extent is compellability limited by the principles of fundamental justice? Second, is s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, which takes away a protection that existed at common law and replaces that protection with other protections, unconstitutional? Both issues must be addressed having regard to the entire legal context in which these questions arise. As such, they must be evaluated having regard to the totality of other common law and constitutional protections afforded a witness who is called to testify at a proceeding that is not his own.
I. Facts
The appellant, R.J.S., a young offender, was charged on July 16, 1990 with break, enter and theft of a retail store. Also charged in relation to the same break-in was another young offender, J.P.M. While R.J.S. was more than 15 years old at the time of the offence, his accomplice J.P.M. was
less than 15 years old at that time. As a result a joint trial was not possible since the charges against R.J.S. were to be heard in Phase Two young offender court while the charges against J.P.M. were to be in Phase One young offender court. J.P.M. was to have been the main Crown witness at the trial of the appellant. After the appellant's arraignment but before his plea, counsel representing the proposed witness J.P.M. brought a motion to quash the subpoena which compelled his client to testify, on the basis that such compulsion would violate J.P.M.'s rights under ss. 11(c), 13 and 7 of the Charter. The trial judge granted the motion and quashed the subpoena.
Deprived of the testimony of J.P.M., the Crown called the owner of the stolen property to identify that property. It also called the investigating officer who had received the property from the appellant. At the close of the Crown's case, appellant's counsel argued that failure to call the property officer constituted a break in the continuity of the evidence. In response, Crown counsel asked the trial judge to dismiss the charges against the appellant on the basis that the charges had not been proven beyond a reasonable doubt. The charges against R.J.S. were dismissed on that basis, the charges against the co-accused J.P.M. were subsequently stayed, and the Crown appealed the quashing of J.P.M.'s subpoena. Since the charges against J.P.M. had been stayed, he did not appear at the Court of Appeal and only R.J.S. presented arguments as to the correctness of the trial judge's determination. The Ontario Court of Appeal ruled that the subpoena should not have been quashed and ordered a new trial on the basis that, even if the charges against J.P.M had not been stayed, he would have been compellable at the separate trial of his co-accused: (1993), 12 O.R. (3d) 774, 61 O.A.C. 395, 80 C.C.C. (3d) 397, 21 C.R. (4th) 47, 14 C.R.R. (2d) 244. The appellant R.J.S. appeals to this Court as of right, pursuant to s. 27(1) of the Young Offenders Act, R.S.C., 1985, c. Y-1, and s. 691(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46. As my colleague Iacobucci J. notes, given this Court's recent judgment in R. v. C. (T.L.), [1994] 2 S.C.R. 1012, this Court addresses the
issues raised in the present appeal on the basis that it grants leave to appeal nunc pro tunc. The judgments of the trial judge and of the Court of Appeal are summarized in his reasons.
II. Relevant Constitutional and Statutory Provisions
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
- 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.
Canada Evidence Act, R.S.C., 1985, c. C-5
- (1) No witness shall be excused from answering any question on the ground that the answer to the 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 on 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 the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible 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 that evidence.
III. Parties' Submissions
The appellant R.J.S. argues that any individual charged with a criminal offence in separate proceedings has a fundamental right not to answer
questions about the subject matter of his own criminal liability, even though the answers to these questions cannot, themselves, be used against that person. The right to silence under s. 7 of the Charter is broader than the corresponding common law right. The principle against self-incrimination requires that the state not negate a separately tried co-accused's choice to remain mute in the face of state compulsion. Any narrower interpretation of the right to silence will confer upon the state a general power of interrogation since there is no logical distinction between an accused under oath being questioned pursuant to a subpoena at his co-accused's trial and the accused being questioned on arrest or detention at the police station. This argument is supported by the principles of fairness to the accused and the "case to meet" principle.
The respondent Crown and the various interveners all argue that s. 7 of the Charter does not mandate an absolute right to silence. Section 5 of the Canada Evidence Act strikes an appropriate and constitutionally permissible balance between the competing interests of the community and the witness. The jeopardy caused by evidence that may be derived from the testimony is speculative at the time of the testimony and is more properly addressed when those issues arise in their proper factual setting at the trial of the accused, if and when that evidence is sought to be introduced. Speculation about such future events should not excuse the witness from answering questions at the present proceeding. The longevity, the replication in all provinces and territories, and the general acceptance of s. 5 of the Canada Evidence Act strongly suggest that it is not contrary to the principles of fundamental justice.
IV.Analysis
In order to determine whether a co-accused is compellable at the trial of another, it is essential to examine both the common law and the Charter. To
begin with, I will examine the scope and the nature of the principle against self-incrimination at common law, having regard to the "case to meet" principle and the "confessions rule", two of its most recognized incarnations. Consideration will then be given to the following additional issues: the former common law rule favouring the admission of illegally obtained evidence; other instances in which courts have found common law exceptions to compellability under exigent circumstances; and the common law doctrine of abuse of process. I will use this analysis to describe a common law basis for elaborating a more satisfactory alternative to the approach proposed by either of my two colleagues. These considerations, and the light they shed on the historical context and purpose of s. 24(2) of the Charter, inform my analysis of the nature and scope of the principle against self-incrimination under the Charter. I conclude that the right to silence and the principle against self-incrimination within s. 7 of the Charter, as well as the common law considerations discussed below, all point to a fundamental, underlying notion of fairness within s. 7 of the Charter. Applying this underlying value enables me in the last part of these reasons to elaborate upon the kind of conduct by the Crown that would violate s. 7 of the Charter in situations analogous to the present case.
A. The Common Law
The principle against self-incrimination has been articulated by Professor Wigmore as follows:
[T]he individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), [sect ]2251, at p. 318.)
On my reading of Iacobucci J.'s reasons, he interprets the common law principle against self-incrimination very broadly in light of his
examination of the common law and the Charter. His approach would appear to be analogous to a definition of the term self-incrimination formulated by Professor Ratushny in Self-Incrimination in the Canadian Criminal Process (1979), at p. 54:
The ordinary meaning of the term "self-incrimination" simply suggests the implicating of oneself in a crime. The manner in which this might be done is not restricted. It could occur through the compulsion of testimony or out-of-court statements. It could also occur through the compulsory production of documents, attendance in identification line-ups, or the provision of samples of blood, urine, hair, fingerprints or handwriting.
In my view, the common law has never required or, in fact, permitted the principle against self-incrimination to be defined so broadly. Rather, the common law has only found self-incrimination to be objectionable per se when it takes on a communicative character, i.e. when the state seeks to rely on evidence that has been compelled from the accused and which communicates, or which may be interpreted by a trier of fact as communicating, consciousness of guilt.
- The "Case to Meet" Principle
The principle of a "case to meet", upon which Iacobucci J. appears to rest his common law and Charter interpretation of the principle against self-incrimination, has been defined as the notion that "a person should not be put in jeopardy merely on the basis of suspicion or speculation" and that "the Crown must prove its case before there can be any expectation that [the accused] will respond, whether it be by testifying himself or calling other evidence" (Ratushny, supra, at pp. 178-79). Both the "case to meet" principle and its corollary, the general rule that an accused is not compellable at his own trial, illustrate the fundamental common law principle that an accused may be silent at his or her own trial.
The "case to meet" principle applies only to the trial and not to pre-trial contexts. As McLachlin J. observed in R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 174-75, however, it may be difficult to justify prohibiting elements of state compulsion on the individual at trial while not providing similar protections to someone who is subject to state compulsion pre-trial:
The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory.
The philosophic and practical relationship between the privilege against self-incrimination and the right of the suspect to silence prior to trial suggests that the same right of choice should prevail at the earlier phase of the criminal process.
Nonetheless, the common law never extended the actual "case to meet" principle to the pre-trial context. This is not, of course, to say that no pre-trial protections against self-incrimination exist at common law. They do, and Hebert clearly manifests some of them. Careful examination reveals, however, that these self-incriminatory protections are simply not as broad as my colleague Iacobucci J. suggests.
His approach to the principle against self-incrimination is virtually identical to Professor Ratushny's theory of "absence of pre-trial obligation". According to this theory, the state must not under any circumstances compel an individual to assist in his own investigation, even where that individual has not yet been charged. If the individual co-operates, his participation must be voluntary. An inquiry into the rationale underlying this principle, however, reveals such a characterization of the common law to be too broad.
The theory of "absence of pre-trial obligation" mainly derives from judicial reluctance to permit
negative inferences to be drawn from an individual's refusal to submit to physical tests, blood sample demands, psychological tests, and identification line-ups, to name a few (Ratushny, supra, at pp. 183-85). That reluctance, however, interrelates strongly with the presumption of innocence. In the seminal case of Marcoux v. The Queen, [1976] 1 S.C.R. 763, Dickson J. (as he then was) commented that, generally, evidence of the refusal of an accused to participate in a line-up would be inadmissible since such evidence might "impinge on the presumption of innocence [and] the jury [might] gain the impression [that] there is a duty on the accused to prove he is innocent" (p. 774). Nonetheless, Dickson J. firmly maintained that coerced participation in a line-up did not per se transgress common law notions of self-incrimination. Only two years earlier, in Hogan v. The Queen, [1975] 2 S.C.R. 574, the majority of this Court had also held that breath and blood sample demands did not offend common law privileges against self-incrimination.
The general common law rule that an accused's co-operation must be voluntary only applies to efforts to adduce evidence that is communicative in character at trial, and not to all cases where an accused was forced to participate in the provision of physical evidence, such as participation in identification line-ups. In other words, the real concerns underlying the theory of "absence of pre-trial obligation" are that a trier of fact might draw adverse inferences from an accused's refusal to co-operate with the state's investigation, be that by way of identification line-up, breath sample, or anything else. In such instances, the individual's conduct could be perceived by a trier of fact as communication against himself, i.e. communication of a guilty conscience. That conduct would not only be incriminating; it would be self-incriminating.
The differing treatment at common law between self-incrimination that is communicative in character and self-incriminatory effects is highly significant. Professor Paciocco appears to make a similar, though not identical, point in Charter Principles and Proof in Criminal Cases (1987), at pp. 582-83:
Among the factors that doubtlessly influenced Ratushny's thesis that there is no functional principle of justice related specifically to self-incrimination was the perceived trend of incursions into the historical protections related to self-incrimination. Ratushny's analysis was designed to be general. In it, he did not draw a firm or complete distinction between testimonial and non-testimonial self-incrimination. Accordingly, denials that a functional privilege against self-incrimination applied to the compelled production of physical evidence were counted among challenges to the existence of any functional principle against testimonial self-incrimination. These cases, I suggest, are not incursions into the principle but rather recognitions of the confinement of the operative principle to testimonial self-incrimination. [Emphasis added; italics in original.]
This conclusion is consistent, I might add, with Iacobucci J.'s conclusion, at p. 493 that the common law privilege against self-incrimination, another incarnation of the common law principle against self-incrimination, is also limited by its testimonial character.
Section 5 of the Canada Evidence Act is consistent with the common law in this respect. For over 100 years, it has immunized an individual who is compelled to testify in one set of proceedings against the use of that testimony to incriminate that individual in other proceedings. Those communications cannot be used to incriminate the individual at his own trial. Moreover, should the individual refuse to testify at the prior proceedings, then the common law principle articulated above would tend to require that evidence of this refusal also not be admissible to the trier of fact because of the self-incriminating character of the adverse inference that might be drawn from that refusal: Marcoux, supra. Section 5 of the Canada Evidence Act complements rather than contradicts the common
law's main extension and application of the "case to meet" principle to the pre-trial context.
- The Confessions Rule
The "confessions rule" is another important application of the common law principle against self-incrimination. Unlike the "case to meet" principle, it has not been confined to the trial context. Grounded in concerns for reliability and human dignity, the confessions rule evolved to exclude from evidence incriminatory statements made by an accused where his statement was not voluntary. In her comprehensive examination of the confessions rule in Hebert, supra, at pp. 165-73, McLachlin J. concluded that the confessions rule is based upon the notion of voluntariness and, more importantly, choice. Only if an individual chooses to co-operate with authorities will the fruits of such co-operation be properly admissible against him or her at trial.
The notions of reliability and choice, however, are very much intertwined. Historically, evidence voluntarily given against oneself was generally considered to be highly reliable. The same could not be said of evidence which was compelled through some act of state coercion. Thus, concerns over individual choice stemmed in part from the overarching concern that innocent persons not be convicted. Under pre-Charter common law, lack of voluntariness was not a reason for excluding a statement which was reliable: "[M]ere lack of voluntariness cannot... be a reason for excluding a statement as there is no general right to no self-crimination" (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 692, per Lamer J. (as he then was)). In fact, lack of voluntariness could not, itself, be determinative of a decision to exclude evidence (at p. 693):
If lack of voluntariness ... were to result automatically in the exclusion of all unwilling statements this would then be, in my opinion, an overextension of the right of an accused to stand mute, and would amount to
introducing indirectly into our system a facet of the general privilege of no self-crimination we do not have in this country. [Emphasis added.]
Under the Canadian common law, only considerations of the integrity of the justice system might result in the exclusion of otherwise reliable evidence (at pp. 696-97). Again, however, what is important for our purposes is that the self-incriminatory character of the confessions rule was fairly limited in its scope. Although an individual might freely choose to co-operate in his own investigation, the right to silence and the presumption of innocence require that his refusal to co-operate could almost never be held against him at his own trial. As such, the confessions rule protected against the admission of evidence that was communicative in character and that was obtained through compulsion.
- The Rule on Admission of Illegally Obtained Evidence
The most obvious limitation at common law to the principle against self-incrimination was the rule that all relevant evidence, even if obtained illegally, is generally admissible at the trial of an accused. The admission of such evidence appeared to flow from the principle that the criminal law trial is a truth-seeking process and from an emphasis on the reliability of the evidence over all other considerations, including fairness to the accused. This reliability rationale, itself, no doubt partly hinged on an underlying desire for fairness in the criminal process: R. v. Whittle, [1994] 2 S.C.R. 914 (per Sopinka J.). This Court's decision in R. v. Wray, [1971] S.C.R. 272, permitted a narrow exception to the admission of illegally obtained evidence where admission of the evidence might operate unfairly procedurally, although subsequent decisions were reluctant to adopt unquestioningly this highly limited discretion. The narrow common law rule in Wray has now been overruled and the approach is one of weighing probative value against prejudicial effect, with no inquiry into how far probative value exceeds prejudicial effect: R. v. Potvin, [1989] 1 S.C.R. 525, at pp. 531-32
(La Forest J. concurring); and R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 610-11.
What is more significant for our purposes, however, is that the hue and cry following Wray inspired strong legislative action. This action, however, did not take the form of a statutory broadening of the operative principle against self-incrimination. Rather, successive law reform commissions recommended the implementation of statutory provisions that would permit the exclusion of evidence in circumstances in which its admission would bring the administration of justice into disrepute. See Law Reform Commission of Canada, Report on Evidence (1975), at p. 22; Ontario Law Reform Commission, Report on the Law of Evidence (1976), at p. 94; MacDonald Royal Commission (Second Report), Freedom and Security under the Law (1981), vol. 2, at p. 1045; contra: Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 233. Section 24(2) of the Charter was therefore very much a procedural relaxation of the near absolute rule of admission of evidence under the common law. It was a remedial rule permitting the exclusion of evidence obtained in violation of one or more substantive rights guaranteed under the Charter, where the admission of that evidence would tend to bring the administration of justice into disrepute. Self-incrimination, per se, had nothing to do with this change; considerations of fairness and abuse of state power had everything to do with it. I shall return later to this point.
- Exceptions to Compellability
Witnesses, including those jointly indicted but separately tried, have generally in Canada been held to be compellable in other proceedings notwithstanding the possibility of self-incrimination: Re Regan, [1939] 2 D.L.R. 135 (N.S.C.A.). From time to time, however, an exception was made in other proceedings. In Batary v. Attorney General
for Saskatchewan, [1965] S.C.R. 465, a coroner sought to compel the accused, who had already been charged with murder, to testify as to the circumstances surrounding the suspicious death. Under the circumstances, this Court held that inquest to be ultra vires the province. While the Court expressed its approval at p. 473 of the conclusion in Regan, supra, that co-accused being tried separately for the same offence are compellable by either the prosecution or the defence at the trial of any of the other co-accused, it nonetheless used the covert tool of ultra vires doctrine to further a more fundamental conclusion. In essence, it concluded at p. 476 that the act of suspending the accused's preliminary inquiry in order to permit him to be compelled before the coroner amounted to a colourable attempt to circumvent safeguards which the accused would ordinarily have enjoyed:
It would be a strange inconsistency if the law which carefully protects an accused from being compelled to make any statement at a preliminary inquiry should permit that inquiry to be adjourned in order that the prosecution be permitted to take the accused before a coroner and submit him against his will to examination and cross-examination as to his supposed guilt.
Some argue that Batary and Regan are irreconcilable. The majority of the Court in Batary, as well as the majority of this Court in Faber v. The Queen, [1976] 2 S.C.R. 9, and Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, would appear to disagree. In my opinion, Batary and Regan, can easily be reconciled on the basis that while Regan sets out the general rule of compellability, Batary recognizes that there may be certain circumstances in which strict enforcement of this rule would work a fundamental injustice and therefore warrant an exception being made to the general principle of compellability.
Some lower courts have also recognized that the principles of fundamental justice require that an exception be drawn to compellability under certain exigent circumstances: Re Welton and The Queen (1986), 29 C.C.C. (3d) 226 (Ont. H.C.), at p. 230; R. v. Zurlo (1990), 57 C.C.C. (3d) 407 (Que. C.A.); Re Praisoody (1990), 1 O.R. (3d) 606 (Gen.
Div.), 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam). One interesting approach is that outlined by MacFarlane J.A., writing for the majority of the British Columbia Court of Appeal in Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724. He addressed compellability in the context of a proposed examination for discovery in a civil suit, and referred to the exception as follows (at p. 747):
But neither Canadian law nor the Charter has recognized the right of such a witness not to testify (except in those rare cases where the evidence would be so prejudicial that a stay of the proceedings is justified until criminal proceedings are concluded). [Emphasis added.]
And further (at pp. 748-49):
I agree that if the sole aim and purpose of the proceeding was to obtain evidence to support a charge or to assist the criminal prosecution of the witness, it might be arguable that the witness ought not to be compelled to divulge information which might lead to his conviction. But, in my view, such a result would follow only if the proceedings, in which such evidence was given, were so devoid of any legitimate public purpose, and so deliberately designed to assist the prosecution of the witness that to allow them to continue would constitute an injustice. In such circumstances, the continuance of the proceedings could be said to constitute a violation of the principles of fundamental justice. [Emphasis added.]
In conclusion, the majority noted (at p. 751) that the underlying principle was
...a matter of ensuring a fair trial and of preventing an injustice. It would not be as a result of a general privilege against self-incrimination....
While not specifically adopting any of these positions, I take them to support the basic proposition that the Canadian common law can accommodate non-compellability in certain very exigent circumstances when fundamental considerations of fairness have required it.
- Abuse of Process
In R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, this Court had occasion to address the common law doctrine of abuse of process. On behalf of the majority, I concluded that courts have the discretion to stay proceedings in order to remedy an abuse of the court's process, in those "clearest of cases" where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of decency and fair play, or where the court's process would be misused through abusive or vexatious proceedings:
The prosecution is set aside, not on the merits . . . but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society". . . . It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Cites omitted.]
Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute.
A demonstrable intention to frustrate the administration of justice or an attempt to circumvent the ordinary rules of criminal law were identified as two factors that could be indicative of such an abuse (at p. 616). Of these, the latter consideration
is most apposite to the present situation-- a matter to which I will return below.
6.Summary
I disagree with Iacobucci J. as to the breadth of the common law principle against self-incrimination. Common law protections focus specifically on situations in which the state seeks to rely on compelled communications -- i.e. words, or actions that may be communicative in character -- as a means of proving the accused's guilt. The principle is not so broad as to contemplate all self-incriminatory effects. My colleague's broad vision of the principle against self-incrimination would be utterly inconsistent with many state actions, such as compulsion to submit to a breath sample, fingerprinting, participation in identification line-ups, or compulsion to produce documents, all of which implicate the individual in his own prosecution: see, e.g., Marcoux, supra, and Hogan, supra. There is therefore no rule or principle at common law that prohibits use by the state of derivative evidence per se. As such, I can find no support for a derivative use immunity principle in the common law. I agree with Sopinka J. that the derivative use immunity approach is an American invention, required to deal with the unique language of their Fifth Amendment. In light of the very different language and historical context of our Charter, particularly our s. 24(2), this approach has neither place nor support in Canadian jurisprudence.
Many of the concerns at common law said to be countenanced by the principle against self-incrimination actually relate even more fundamentally to general considerations of fairness, human decency and the integrity of the judicial system. The doctrine of abuse of process has developed as a means to address these concerns directly. The occasional exception to compellability has been recognized to address these concerns indirectly. If exceptions are
to be made to the general rule of compellability, then they should develop along the lines of these underlying principles rather than out of an imprecise extension of the common law principle against self-incrimination.
I turn now to the impact that the passage of the Charter may have had on both the nature and scope of the principle against self-incrimination.
B. The Charter
I do not find it necessary here to examine ss. 10(b), 11(c) and 11(d) of the Charter in any great detail. I agree with Iacobucci J. to the extent that he concludes that these sections are evidence that there exists in our Charter a residual principle against self-incrimination under s. 7. This residual protection manifests itself in the form of the "right to silence". A careful examination of ss. 13, 24 and 7 of the Charter, however, reveals that the Charter has not created a broader fundamental principle against self-incrimination than that which existed previously at common law. Rather, it promotes an underlying value of fundamental fairness which can infuse and inform our approach to problems like those raised in the present case.
- Section 13
The historical context in which s. 13 of the Charter was introduced suggests strongly that Parliament did not intend to enhance significantly the protections against self-incrimination available under s. 5(2) of the Canada Evidence Act. Section 13 of the Charter reads as follows:
- 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.
Section 13 is functionally identical to s. 5(2) except for the fact that s. 13 removes the requirement that a witness assert a claim against self-incrimination in order to benefit from that protection.
When the Charter and, more specifically, s. 13 came into being, s. 5 of the Canada Evidence Act had been in existence, largely unchanged, since 1893 (S.C. 1893, c. 31). Witnesses were compellable notwithstanding the fact that they might incriminate themselves, but given complete testimonial use immunity in subsequent criminal proceedings. Provisions almost identical to s. 5 of the Canada Evidence Act exist in every Canadian province and territory. The lack of critical commentary on the principles expressed in s. 5 is telling. If s. 5 were based on fundamentally unjust principles, I would expect a significant body of criticism in the case law, in law reform commission reports, and in academic writings. As Professor Ratushny points out in "Is There a Right Against Self-Incrimination in Canada?" (1973), 19 McGill L.J. 1, at p. 64, however, the judicial reaction to s. 5 has historically been muted:
From the very introduction of these legislative restrictions, our courts have tended almost uniformly to accept them without any reservations based upon any general principle against self-incrimination.
In fact, most writing on s. 5 seems to indicate substantial support for the provision, including some observations that it actually provides witnesses with more effective protection than the common law privilege it abrogated: Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, supra, at pp. 438-40; Law Reform Commission of Canada, supra, at pp. 29-30 and 78-79; report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (Ouimet Report) (1969), at pp. 67-70; and Law Reform Commission of Canada, Working Paper 17, Commissions of Inquiry: A New Act (1977), at p. 36.
Most importantly, if the Charter's drafters intended to depart even slightly from the Canadian status quo towards the more libertarian American model involving derivative use immunity, one would expect there to have been material changes in the wording or breadth of s. 13 as compared to
s. 5 of the Canada Evidence Act, or allusion to such ends in earlier drafts. None, however, are to be found. As Iacobucci J. himself observes, it seems unlikely to expect the drafters of the Charter to have left such an important change to the indefinite realm of the principles of fundamental justice under s. 7 of the Charter. While I agree that interpretation of the Charter must not be frozen in time as a result of over-emphasis of framers' intent at the time of its passing (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486), I cannot disregard such a clear indication of intent given the comparably brief period of time that has elapsed since the Charter became part of our Constitution: R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 287-88, per L'Heureux-Dubé J. I conclude that by the inclusion of s. 13 of the Charter, the framers expressed an obvious intent not to broaden significantly the protections against self-incrimination previously existing at common law. With all due respect, I believe that Iacobucci J.'s approach runs fundamentally against that clear intention.
- Section 7
In the case at bar, as with all cases in which a witness is compellable pursuant to statutory authority, the witness faces the possibility of imprisonment if he withholds his testimony. The compulsion to testify subject to possible imprisonment for failure to comply is, itself, a deprivation of liberty which brings the issue of witness compellability within the scope of a s. 7 examination: R. v. Beare, [1988] 2 S.C.R. 387, at p. 402. The question is therefore not whether s. 7 applies, but rather how it applies. This Court has recognized that s. 7 includes a residual right to silence: Hebert, supra. A s. 7 residual right to silence is therefore capable of applying whenever a witness is compelled. To say that it is capable of applying does not mean, however, that it has crystallized. I elaborate below on the principles underlying when that right to silence will actually be triggered.
(a) The Principle of Fundamental Justice Against Self-Incrimination
The seminal pronouncement on the contents of s. 7 remains that of Lamer J. in Re B.C. Motor Vehicle Act, supra, at p. 503:
[Sections] 8 to 14 provide an invaluable key to the meaning of "principles of fundamental justice". Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights...) and on the "rule of law" (preamble to the Canadian Charter of Rights and Freedoms).
It is this common thread which, in my view, must guide us in determining the scope and content of "principles of fundamental justice".
I believe that the "common thread" against self-incrimination in s. 7 finds full effect through self-incrimination that is communicative in character. I arrive at this conclusion by examining s. 7 in light of our common law past and in light of the history and structure of our Charter, in particular the fundamental notions of fairness that underlie it.
While I agree with McLachlin J.'s observations in Hebert, supra, at p. 163, that a fundamental principle of justice may be broader in scope and more general than the particular common law rules which exemplify it, there is no doubt that the common law plays an important role in discerning the principles fundamental to justice envisioned by s. 7 of our Charter. To quote La Forest J. in Beare, supra, at p. 406:
While the common law is, of course, not determinative in assessing whether a particular practice violates a principle of fundamental justice, it is certainly one of
the major repositories of the basic tenets of our legal system referred to in Re B.C. Motor Vehicle Act....
Although in dissent, but not on this point, Gonthier J. in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, adds valuable insight to this general proposition, at pp. 928-29:
It might be suggested that my references to the common law tradition are irrelevant in the age of the Charter. In my view, however, the Charter does not oblige departing from this tradition in any substantive respect.... The impact of the Charter will be minimal in areas where the common law is an expression of, rather than a derogation from, fundamental values.
In light of my earlier examination of the common law principle against self-incrimination, I am sceptical, like my colleague Sopinka J., that this principle has been radically redefined by the advent of the Charter. The Charter embodies those principles which Canadians consider fundamental to our system of justice. Though it recognizes rights which are applications of these principles, and though its passage may have affected the manner in which those fundamental principles are perceived, the Charter did not actually create any brand new principles of fundamental justice. Principles of "fundamental" proportions simply do not spring into being from one day to the next -- not even in a document as important as our Charter. Defining "self-incrimination" over-inclusively as arising whenever the state obtains evidence which it could not have obtained "but for" the individual's participation would take the notion of self-incrimination far beyond the communicative character that grounds it at common law. I reject in principle the "but for" assessment of self-incrimination. I draw on Charter jurisprudence to illustrate the difficulties and the practical implications of such an approach, and find added support for my conclusion in the limiting principles of relevance and undue prejudice.
(i) Rejection of the Principle of "But For" Derivative Immunity
The majority of this Court has voiced its displeasure with both the uncertainty and the rigidity of "but for" assessments of causality:
Isolating the events that caused the evidence to be discovered from those that did not is an exercise in sophistry. Events are complex and dynamic. It will never be possible to state with certainty what would have taken place had a Charter violation not occurred. Speculation of this sort is not, in my view, an appropriate inquiry for the courts.
A causation requirement also leads to a narrow view of the relationship between a Charter violation and the discovery of evidence. Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence. The inquiry will tend to focus narrowly on the actions most directly responsible for the discovery of evidence rather than on the entire course of events leading to its discovery. This will almost inevitably lead to an intellectual endeavour essentially amounting to "splitting hairs" between conduct that violated the Charter and that which did not. (R. v. Strachan, [1988] 2 S.C.R. 980, per Dickson C.J., at p. 1002.)
Dickson C.J. concluded that the pitfalls of "but for" causation could be avoided by examining the entire chain of events and by excluding from s. 24(2) consideration, evidence which was too remote to be obtained in a manner that infringed the Charter. Remoteness, he urged, was not subject to hard and fast rules, but rather should be dealt with on a case by case basis (at p. 1006). In Strachan, Dickson C.J. was, of course, addressing the question of whether a causal link between a Charter violation and the gathering of certain evidence was a precondition to a s. 24(2) analysis. It is very troubling, however, to rely on this same "but for" test, impugned as it was by Dickson C.J., for the even more important purpose of determining whether the admission of certain evidence
inferentially violates a principle of fundamental justice.
(ii) Practical Implications of Derivative "But For" Immunity
The practical implications of Iacobucci J.'s approach cannot be underestimated. Derivative use immunity based on any test requires that the evidence which is adduced against the party who was compelled be screened. In virtually every case, a voir dire examining the entire evidence-gathering process would be required, since the onus will fall on the Crown to justify the admission of the evidence whenever a "plausible connection" has been made out between the proposed evidence and the prior testimony. Much of investigation, however, relies upon hunches, instinct, the following up on anonymous or unsubstantiated tips and, more generally, the style and thoroughness of the investigator. Sometimes, the investigation advances by pure chance. These are very difficult elements for the Crown to prove.
The experience of a "trial before a trial", moreover, has been borne out in the United States and should not be repeated here. I question my colleague Iacobucci J.'s untested belief that the difficulties encountered in applying derivative use immunity in the United States will be appreciably reduced by adopting the "but for" test. I share my colleague Sopinka J.'s concern that the more likely result is that difficulties experienced with derivative use immunity in the United States will be repeated here, leading to interminable admissibility proceedings and resulting in virtual transactional immunity. See R. S. Ghio, "The Iran-Contra Prosecutions and the Failure of Use Immunity" (1992), 45 Stan. L. Rev. 229, and J. A. Murphy, "The Aftermath of the Iran-Contra Trials: The
Uncertain Status of Derivative Use Immunity" (1992), 51 Md. L. Rev. 1011.
The case of Ruben v. The Queen (1983), 24 Man. R. (2d) 100 (Q.B.), presents a very real, and very commonplace, example of the intractable difficulties that may follow from Iacobucci J.'s approach. The witness sought an order quashing a subpoena compelling him to testify at a murder trial. He, himself, had been charged as an accessory to the murder and he argued that his testimony could materially lead to the conviction of the accused murderer. Since proving a murder was an essential element of the Crown's case against him, he argued that by testifying at the murder trial, he would therefore be incriminating himself. In other words, if the murder conviction depended upon the witness's testimony, evidence of the murderer's conviction, ordinarily admissible against the witness in subsequent proceedings, would suddenly take on a derivative character. There would be a "plausible connection" between the witness's testimony and the evidence which the Crown seeks to introduce against him. Iacobucci J.'s "but for" test would require the Crown to prove anew at the witness's own trial that the murderer would have been convicted without the witness's testimony, before being able to rely upon the fact of the conviction as evidence of an essential element of the case. The trial judge in Ruben recognized the illogic of such an outcome and made the following observations (at p. 106):
At Ruben's own trial, the Crown must still prove the commission of the principal crime to which he is alleged to have been an accessory, together with all of the other ingredients contained in the indictment. In attempting to do that, the Crown cannot compel Ruben to testify at his trial, nor can it use any incriminating evidence that Ruben may have given in these proceedings in order to satisfy its burden of proof, except of course as specifically provided for in s. 13 of the Charter.
It seems that the purpose of the Charter in enacting these sections was not only to provide guaranteed rights to persons charged with an offence, but also to provide a means whereby evidence could be made available that otherwise might not be if it were not for this blanket protection. [Emphasis added.]
I applaud this healthy dose of common sense.
Finally, I note that my colleague's derivative immunity approach would also logically appear to apply to civil cases where an accused person has been compelled to testify, since failure by a witness to testify in such a process is equally subject to state sanction by way of possible imprisonment. Although I do not have the benefit of an in-depth examination of this question, I note that there is doubt as to whether the rationale for the common law privilege against self-incrimination would extend to civil proceedings: A.T. & T. Istel Ltd. v. Tully, [1992] 3 All E.R. 523 (H.L.). Equally significant, if civil discovery proceedings are capable of materially affecting the Crown's conduct of its case against an accused in the way my colleague suggests, then the Crown may have good reason to seek delay of those civil proceedings until the completion of the accused's trial. It is clearly not desirable to impose upon the Crown the burden of having to apprise itself of, and possibly intervene in, any and all civil proceedings relating to individuals that are under suspicion or active investigation or that have already been charged. I fail to see, however, how this result would not follow as a necessary practical consequence from my colleague's approach.
(iii) Theoretical Inconsistencies of "But For" Immunity
The majority of this Court has classified breathalyzer evidence as "self-incriminating" for the purposes of s. 24(2), since it could not be obtained "but for" the cooperation of the accused: Prosper, supra. If a principle against self-incrimination under s. 7 of the Charter were also to be based on the "but for" test, then it must follow that admission of breathalyzer tests would be inconsistent with s. 7. Put differently, an individual who is asked to provide a breathalyzer sample is being coerced by the state to provide potentially incriminating evidence against himself in a context in which his refusal to submit to such a test would render that person liable to possible imprisonment. The state could not obtain that evidence "but for"
the individual's participation. Yet never, to my knowledge, has the constitutionality of demanding a breathalyzer sample on reasonable and probable grounds been successfully challenged on the basis that it violates a principle of fundamental justice against self-incrimination under s. 7 of the Charter. Surely the same argument can be made of instances in which an individual is required to furnish to authorities his or her own fingerprints. Yet, where sufficient grounds are made out, the state may, both under the common law and the Charter, generally compel an accused to furnish such evidence: Beare, supra.
A similar argument can be made with respect to compelled production of documents. In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, this Court was asked to decide whether the Director of Investigation and Research could compel the production of documents by subpoena duces tecum. A majority of the Court concluded that the documents had to be produced. There can be little doubt that documents of the nature disclosed in Thomson Newspapers are potentially incriminating against the party being forced to produce them. Authorities may locate other evidence as a result of information contained in these documents or may gain a new appreciation of existing evidence. The fact that the individual has to participate in their production implies that the individual is being compelled by the state to assist in his own investigation. According to the "but for" principle, documents which are so well hidden that they would not have been found "but for" the individual's co-operation are "self-incriminating". Indeed, many state intrusions into an individual's private sphere, be it their body, their breath, or their house, implicitly require the accused's cooperation, subject to penalty for obstruction of justice, "but for" which certain evidence would not come to light.
In summary, when objections are made to the constitutionality of evidence obtained through
breathalyzers, fingerprinting, searches, or compelled production of documents, those objections are only recognized under the Charter in so far as they address the manner in which that evidence was obtained. Objections to the fact that such evidence may be gathered, and to the fact that the individual was compelled to assist in its production, are not recognized under the Charter. With all due respect, I believe that the fact that such evidence exists and is constitutionally permissible is mute yet powerful testimony that the operating principle against self-incrimination is not as broad as my colleague suggests.
(iv)Further Rationales for Regarding the Principle Against Self-Incrimination as Communicative in Character
Unlike my colleague, I do not see the operative principle against self-incrimination to be in "dynamic tension" with other fundamental principles of our legal system. I prefer to look for harmony rather than conflict. Additional justification for rejecting "but for" derivative immunity and for recognizing the communicative character of the principle against self-incrimination can be found in the complementary character of the principle of fundamental justice against undue prejudice.
The common law has consistently rejected drawing adverse inferences from an individual's refusal to co-operate with the authorities. As I noted earlier, to the extent that an accused's conduct may be perceived by a trier of fact as an implicit admission of a guilty conscience, such inferences are undoubtedly self-incriminatory. Significant prejudice might follow if such evidence were admitted at the accused's trial. This jeopardy can be largely addressed by the principle that courts should exclude evidence if its probative value is outweighed by its prejudicial effect. As Professor Mewett points out, prejudice is a well-established notion in our common law:
Prejudice, in the evidentiary context, means the drawing of an inference adverse to the party against whom it is
offered along an impermissible chain of reasoning -- not one of logic, common sense and experience, but one of hunch, gut-reaction and lack of logic. It is the reaching of a conclusion for the wrong reason and whether that conclusion is "right" or "wrong" is quite immaterial. It is the process that is objectionable. [Emphasis in original.]
(A. W. Mewett, "Prejudicing an Accused" (1992), 34 Crim. L.Q. 385, at p. 385.)
Given that this Court has already recognized the fundamental nature of this determination to the fairness of the trial process (Seaboyer, supra), I see no need to reach beyond that principle to address the repugnance that our society holds for self-incrimination of this kind. There is certainly no need to reach for a broad principle against non-testimonial self-incrimination of the nature Iacobucci J. adopts.
Moreover, I would note that the mere fact that evidence may be discovered as a result of compelled testimony does not necessarily mean that the Crown can use that evidence at the witness's own trial. The use of subsequently derived evidence is always constrained by relevance. I emphasize that, by virtue of s. 13 of the Charter, the Crown cannot rely on statements made by an accused in other proceedings to connect him to incriminating evidence in the accused's own trial. The derivative evidence will therefore only be admitted into evidence if the Crown can establish its relevance without reference to the accused's actual communication. The principle against self-incrimination would further require that the Crown not be entitled to rely on the fact of that communication. As such, the communicative character of that evidence -- the inferences that may flow from the fact that the accused pointed police to it -- is stripped from that evidence. Thus, any derivative evidence that is, indeed, admitted will be incriminating, but not self-incriminating. To recapitulate, the "but for" test advocated by Iacobucci J. is potentially over-inclusive as a test for the self-incriminatory nature of evidence. Both
the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former.
Since evidence may not be admitted at trial on the basis of any compelled act which is communicative in character, the substantive fairness of the trial is not prejudiced by the fact of prior compelled testimony. Any remaining concerns about fairness must therefore relate to the manner by which the derivative evidence was obtained, and are therefore procedural. As is apparent from the dramatic legislative response to the common law rule under Wray, such concerns centre on the integrity of our justice system and on fairness to, and the dignity of, the individual. These concerns are addressed by resort to the notions of fundamental fairness which underlie almost all of the values and principles said to flow from our Charter, a matter to which I will return when setting out my specific approach below.
(b) The Right to Silence
In Hebert, supra, this Court considered the ambit of a detained accused's right to silence. It concluded that s. 7 of the Charter was breached where the police elicited inculpatory statements from the accused by way of an undercover police officer in a neighbouring cell. In Hebert, McLachlin J. thoroughly canvassed the legal context of the right to silence and underlined that the basic tenets of our justice system were to be found in the interrelationship of common law rules and by reference to the Charter (at p. 180):
The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute -- in the first case because the state has improperly used its superior power against the individual, in the second because the state's legitimate interest in law enforcement has been frustrated without proper justification. [Emphasis added.]
In Hebert, this Court recognized that the right to silence, though not absolute, extends in certain circumstances to the pre-trial context. A detained accused has the s. 7 right not to be incited by the state to make inculpatory statements that could later be used against him at trial. This self-incriminatory protection went beyond that existing under s. 11(c) because it extended to the pre-trial context, and differed from the protections under s. 13 in that it did not involve any prior "proceedings".
The right to silence sought by the appellant in the present case differs in important respects, however, from that recognized by this Court in Hebert. In Hebert, the state sought evidence from the mouth of the detained accused for the purpose of incriminating that individual by his own statements at his trial. Having found the state's manner of acquiring the testimonial evidence to violate s. 7 of the Charter, this Court excluded that evidence under s. 24(2). The circumstances raised by the present appeal, however, are somewhat different in that the state seeks to obtain an individual's testimony for the purposes of advancing the quest for truth in a criminal proceeding against another person. By virtue of s. 5 of the Canada Evidence Act and s. 13 of the Charter, the witness's statements cannot be used to incriminate him or her at trial. From the standpoint of the witness's own trial, these provisions therefore already mandate a right to testimonial "silence" which is analogous to that conferred upon the detained accused in Hebert.
In Hebert, moreover, no question was raised regarding the admissibility of evidence derived from the illegally elicited confession. In the present case, however, the jeopardy to the witness relates not to the confession itself but to the concern, not yet realized, that the Crown may gain strategic advantage or derive evidence from the testimony that it might not otherwise have come by or appreciated. Protection is sought under s. 7 at the time of the testimonial compulsion, even though the manner in which the person may incidentally be compelled against himself (e.g., through otherwise undiscoverable derivative evidence) is not generally apparent at the time of that compulsion.
These distinctions between Hebert and the present case require that I elaborate upon the conditions under which the right to silence in s. 7 is triggered.
(i) The Threshold at Which the Right to Silence is Triggered
The right to silence is triggered when an adversarial relationship arises between the individual and the state:
The right to remain silent, viewed purposively, must arise when the coercive power of the state is brought to bear against the individual -- either formally (by arrest or charge) or informally (by detention or accusation) -- on the basis that it is at this point that an adversary relationship comes to exist between the state and the individual. The right, from its earliest recognition, was designed to shield an accused from the unequal power of the prosecution, and it is only once the accused is pitted against the prosecution that the right can serve its purpose. [Emphasis added.]
(Hebert, supra, at p. 201, per Sopinka J.)
See also R. v. Jones, [1994] 2 S.C.R. 229, at p. 249 (per Lamer C.J. dissenting). Within his own proceedings, an accused always stands in an adversarial relationship vis-à-vis the state. By contrast, given the protections that already enure to a witness under s. 13 of the Charter and s. 5 of the Canada Evidence Act, an individual who is compelled as a witness at other proceedings only truly stands in an adversarial position vis-à-vis the state when the state is seeking predominantly to build its case against that witness. A witness may not be compelled in a proceeding which is, in essence, an investigation of that witness, rather than a prosecution of an accused. Such conduct by the state would be both clearly adversarial and abusive, and the individual's right to silence vis-à-vis the state will have crystallized.
As long as the state is pursuing a valid purpose, however, the right to silence is not engaged, nor has an adversarial relationship between the compelled witness and the state crystallized. In such circumstances, unfavourable effects to the individual flowing from the possibility of discovery of derivative evidence or the vesting of some strategic advantage to the Crown through the disclosure of a possible defence do not violate the principles of fundamental justice. On the other hand, where it becomes apparent that the predominant purpose of the state's actions is to obtain the evidence of the witness for use in an adversarial proceeding against that witness, a violation of the Charter will be established. In such cases, the state will be engaging in conduct that triggers an adversarial relationship between the state and the individual, notwithstanding the protections accorded that individual in s. 13 of the Charter. I agree with Iacobucci J. that this adversarial position can exist even in circumstances where the witness has not yet been charged, although, as I shall explain below, such a finding will be far less likely where a witness has not actually been charged.
(ii)The Rationale for Permitting Compellability Pursuant to a "Valid State Purpose"
Like other provisions of the Charter, s. 7 must be approached purposively. A commitment to
purposive interpretation entails a commitment to ensuring that a legal principle is interpreted sufficiently broadly to further the interests it is meant to protect, yet not so broadly as to overshoot them. Beare, supra, at p. 401. Ultimately, the principles of fundamental justice require a balancing of societal interests with those of the accused. Here, these societal interests are in obtaining evidence that is relevant to another proceeding, and the accused's interest is the right to remain silent. To quote McLachlin J. in Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 151-52:
The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally....
To strike a balance that would effectively prohibit the state from engaging in otherwise lawful activity, in furtherance of a pressing and substantial state objective, which nonetheless has the effect of conscripting an individual to assist in his own investigation, would stultify law enforcement in our country. This recognition was implicit in La Forest J.'s discussion in Beare, supra, of the social and investigatory importance of fingerprinting in the context of his s. 7 examination of the laws governing that procedure.
It is undeniable that breathalyzer demands, fingerprinting, and searches performed pursuant to reasonable statutory authority are all consistent with s. 8 of the Charter as well as with the principles of fundamental justice, notwithstanding that they all enlist the individual's co-operation in his own investigation. It follows that where the state, on justifiable grounds, compels the individual to assist in procedures which may incriminate that person, then the state compulsion involved in obtaining this evidence need not necessarily offend the principles of fundamental justice. As such, the "common thread" that is truly fundamental to our system of justice cannot be so broad as to extend to all potentially self-incriminatory effects of state action.
The "common thread", in fact, lies closer at hand. The dignity of the individual is a fundamental value underlying both the common law and the Charter. Although the search of an individual's home is an invasion of privacy, and although the taking of fingerprints, breath samples or bodily fluids are even more private, there is no doubt that the mind is the individual's most private sanctum. Although the state may legitimately invade many of these spheres for valid and justifiable investigatory purposes vis-à-vis the accused, it is fundamental to justice that the state not be able to invade the sanctum of the mind for the purpose of incriminating that individual. This fundamental tenet is preserved, in its entirety, by the principle against self-incrimination as I have characterized it above. This principle, in turn, is largely embodied by s. 13 of the Charter. To the extent that state compulsion may elicit incriminating communications or communicative behaviour from an individual even though not in the context of formal proceedings, this fundamental protection is rounded out by the recognition of a residual right to silence in s. 7: Hebert, supra.
(c) The Interaction Between Sections 7 and 24(2)
In the same way that restrictive equality jurisprudence under the Canadian Bill of Rights, R.S.C., 1985, App. III, is said to have influenced the formulation of broad equality protections under s. 15 of our Charter, the common law rule in Wray inspired the nature and character of s. 24(2). When the Charter was ultimately adopted, a section which had originally been drafted in such a way as to preserve the principles set down in Wray was deleted following spirited opposition and subsequently replaced by what is now s. 24(2). (See B. P. Elman, "Returning to Wray: Some Recent Cases on Section 24 of the Charter" (1988), 26 Alta. L. Rev. 604, at pp. 606-7.) Section 24(2) was a uniquely Canadian solution.
Section 24(2) is a remedy for a breach of a Charter right. It is neither a substantive right itself nor a principle of fundamental justice. Its inclusion in the Charter is strongly indicative of the fundamental desire that judges have a means by which to exclude evidence whose admission notwithstanding a Charter violation would call into question the integrity of the judicial system. For the following reasons, I am uncomfortable with my colleague Iacobucci J.'s conclusion that a broad principle against any and all self-incrimination -- "read down" so as to be consonant with s. 24(2) of our Charter -- now exists where there is little proof that such a principle pre-dated the Charter.
First, I hesitate to draw on s. 24(2) jurisprudence in order to define a principle of fundamental justice under s. 7 of the Charter, since that jurisprudence elaborates mainly upon what is meant by the phrase "bring[ing] the administration of justice into disrepute". Section 24(2) is not coextensive with s. 7. Bringing the administration of justice into disrepute is a broader notion than what necessarily defines the principles of fundamental justice. Similarly, the notions of fairness underlying s. 24(2) are very different from those underlying s. 7. Fairness under s. 24(2) is examined in the context of whether evidence should be excluded. By contrast, fairness under s. 7 must be fundamental to justice. Fairness that is fundamental to justice represents our constitutional bottom line. It is violated when the state clearly engages in conduct which would violate "those fundamental principles of justice which underlie the community's sense of fair play and decency", or which would abuse "a court's process through oppressive or vexatious proceedings" (Conway, supra, at p. 1667).
Secondly, my colleague's "but for" test appears to adopt only that portion of the s. 24(2) analysis which distinguishes between evidence which is "real" versus that which is "self-incriminatory". This approach collapses the polycentric
examination under s. 24(2) into a static and inflexible test of exclusion under s. 7. Although Iacobucci J. asserts at p. 563 that his approach would not amount to an automatic rule of exclusion in respect of derivative evidence, this consequence appears inevitable. What latitude for discretion can the trial judge possibly have, to not exclude such evidence, if she has concluded that its admission, by definition, would violate a principle of fundamental justice?
Finally, with all due respect, it appears incongruous to define new and separate Charter rights under s. 7 by almost exclusive reliance upon this Court's most recent jurisprudence governing s. 24(2). Such an approach to defining rights can stultify the growth of the Charter by freezing it in time or, alternatively, raise serious problems if this Court were to modify its approach to s. 24(2). If the principles of fundamental justice are indeed the bedrock of our legal system then I think it prudent that they, too, must be seen to rest on more solid foundations.
C. The Principles of Fundamental Justice: Fundamental Unfairness
Underlying every principle of fundamental justice is a notion of fundamental fairness. This notion has found expression in the very occasional common law exception to compellability, the doctrine of abuse of process, the principle against self-incrimination, and the right to silence. Focusing on any one of these categories as a basis for analysis may engender more confusion than it resolves. This Court has acknowledged that it is preferable to recognize underlying principles rather than to rely on mechanical classifications (see R. v. Smith, [1992] 2 S.C.R. 915, for a similar approach to common law hearsay exceptions). Thus, I prefer to rely on the underlying notion of fundamental fairness, which for cases analogous to this appeal, finds application in what, for lack of a better term, I refer to as fundamentally unfair conduct by the Crown.
A witness may be entitled to claim an exception under s. 7 from the principle that the state is entitled to every person's evidence if it is established that the Crown is engaging in fundamentally unfair conduct. Attempts to by-pass the procedural safeguards that are intrinsic to the notions of dignity and individual liberty contained in the Charter and to our conception of fundamental trial fairness are fundamentally unfair conduct that violates the principles of fundamental justice. Although in dissent, Lamer C.J. noted an important underlying aspect of the principle against self-incrimination in Jones, supra, at p. 251: Concern about the abuse of state power is at the heart of the principle against self-incrimination.
An inquiry into fundamentally unfair conduct is more tangible, focused, and related to this underlying principle than the broad inquiry suggested by a derivative evidence approach or by an overly narrow and speculative approach that only addresses the problem from the point of view of compellability.
Fundamentally unfair conduct will most frequently occur when the Crown is seeking, as its predominant purpose (rather than incidentally), to build or advance its case against that witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. The Crown will be predominantly advancing its case against the accused when, by calling the witness, it is engaging in a colourable attempt to obtain discovery from the accused and, at the same time, is not materially advancing its own valid purposes. Such action would bypass the safeguards to the dignity of the individual under the Charter and fundamentally undermine the integrity of the judicial system. The principles of fundamental justice under s. 7 do not allow the state to have a general power of interrogation, that is, to permit the state to pass a law requiring all suspected persons to
answer pre-trial questions, even if such a law prevented later use of those statements at trial.
The state may legitimately compel an individual to testify in order to pursue meaningfully one or more pressing and substantial interests validly within its jurisdiction, such as advancing the search for truth in a separate criminal proceeding, investigating cause of death by a coroner, exercising administrative regulatory powers, or holding a full and effective public inquiry into a broad matter of substantial public importance. The effect may be to compel a witness to disclose information that may incriminate or otherwise prejudice that person, but the compellability of that witness in furtherance of that valid activity would not per se contravene the principles of fundamental justice embodied in s. 7, given other existing protections under the Charter. The subsequent acquisition of evidence which may be derivative also would not, per se, violate the Charter, where that evidence is acquired in a manner that is incidental to the valid purposes for which the witness was compelled.
As with all allegations of Charter violations, the onus is on the witness to establish fundamentally unfair conduct contrary to s. 7 of the Charter. In determining whether such conduct exists, the status of that witness as a person who has already been charged is not conclusive, but is an important factor in determining whether fundamentally unfair conduct has been established. While I do not limit findings of fundamentally unfair conduct to persons charged, as a practical matter, I note that it will be quite difficult to establish such conduct without such status. The more remote the witness's liberty interest qua accused, the less proximate the potential jeopardy to that individual and the less pressing the need for an exception to compellability. If, however, the witness is, himself, ultimately brought to trial, then he may nonetheless seek to show that the state engaged in fundamentally unfair conduct at the related proceedings at which he was originally compelled.
The issue of fundamentally unfair conduct amounting to a breach of the principles of fundamental justice in s. 7 may be raised at two points:
(a)when the witness is subpoenaed (the "subpoena stage"); and (b)when the witness is tried (the "trial stage").
The fundamentally unfair conduct test remains the same at both stages, although there are two differences, one in relation to the nature of the remedy and the other in relation to procedure.
The remedy at the subpoena stage will be a quashing of the subpoena. A stay of proceedings, if the witness has been charged, would serve no purpose since the expected harm in relation to that witness has been averted and since there is no reason why the proceedings in which the witness is being compelled should not continue. If the subpoena is quashed when the witness is called at the subpoena stage, then there is obviously no need to raise the issue at that witness's own trial. If, however, the subpoena is not quashed at the subpoena stage, the issue may again be raised at the trial stage.
The second difference between the two stages is procedural. At the subpoena stage, when the state seeks to compel an individual in circumstances which the witness argues give rise to self-incriminatory concerns, the state shall disclose to the trial judge or tribunal the general purpose for which it seeks to compel that individual's testimony and the relative importance of that evidence to the prosecution in respect of which the witness is compelled. Then, the witness may attempt to demonstrate fundamentally unfair conduct from the fact of the compulsion: see, e.g., Batary, supra.
As a practical matter, fundamentally unfair conduct may be quite difficult to establish at the subpoena stage, since the Crown's real purpose may not be apparent at that point. Information that may establish this violation, such as particular colourable lines of questioning by the Crown at the accused's trial, will only become available and
properly appreciable at the trial stage. More precisely, at the subpoena stage, the witness is effectively asking for injunctive relief under ss. 7 and 24(1) of the Charter against the subpoena under which he is otherwise compellable. As Dickson J. writing for the majority in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 458, has noted, courts are unwilling to act in the absence of probable future harm where it cannot be shown that the impugned action will cause a violation of rights:
The general principle with respect to such injunctions appears to be that "there must be a high degree of probability that the harm will in fact occur": Sharpe, supra, at p. 31. In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated:
- A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.... It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts' reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.
The compelled witness will, as a matter of common sense, be in a better position to demonstrate the risk of "prejudice" if and when that risk concretizes at the time of his trial. At the trial stage, moreover, the factors enumerated by my colleague Sopinka J. will be much more readily ascertainable than they would have been at the subpoena stage, and may assist the judge in deciding whether the Crown's conduct in the prior proceedings was fundamentally unfair.
Traditionally of equal significance in the granting of an injunction is the question of whether the damage sought to be avoided will be irreparable in nature: R. J. Sharpe, Injunctions and Specific Performance (2nd ed. 1993), at [para ]2.390. When it is found that the state is in fact engaging in a colourable attempt to obtain discovery from the witness rather than seeking to advance its own valid purposes, then the immediate and irreparable damage will not be to the witness but to the integrity of the legal system, and the injunctive relief will be justified. By contrast, given the high threshold that injunctive relief generally commands and given the somewhat speculative nature of many of the concerns listed by Sopinka J., I cannot see how his fairly low "balance of probabilities" threshold to non-compellability can possibly be consistent with these well-established and highly apposite principles.
At the trial stage, the court will essentially be asking itself whether, if what is now known had been known at the time the state sought to compel the witness, an exception would have been made to the general rule of compellability and the subpoena would have been quashed. It can, in effect, profit from the fact that hindsight is always 20/20. The difficulty is that the damage to the witness's right to silence and to the integrity of the judicial system has now occurred. Through fundamentally unfair conduct, the state may have gained important and diverse strategic advantages. As Iacobucci J. admits, derivative use immunity is only capable of containing part of this damage. Hence, once fundamentally unfair conduct contrary to s. 7 of the Charter is demonstrated, the court must impose a remedy which it considers appropriate and just in the circumstances, pursuant to s. 24(1) of the Charter. Generally, such a remedy is a stay of proceedings. One factor in determining whether to grant a stay of proceedings will be whether fundamentally unfair conduct ought reasonably to have been raised by the witness at the subpoena stage. Another factor may be the perceived severity of the s. 7 breach. A third will be the presence of good or bad faith on the part of the Crown. I leave
for another day, however, more elaborate discussions as to the basis on which discretion to grant a stay of proceedings should be exercised, as well as the appropriateness of any other potential remedies.
D.Problems with Addressing this Issue Solely on the Basis of Non- Compellability
My colleague Sopinka J. rejects Iacobucci J.'s approach on the basis that focusing on derivative evidence addresses the problem at the wrong end. In his words, "[o]nce the accused has testified, attempting to contain the damage may be like closing the barn door after the horses have escaped" (p. 625). While I agree with Sopinka J.'s concerns about the practical implications of Iacobucci J.'s test, I have some concerns of my own about the alternative that he suggests.
Firstly, although some aspects of a witness's testimony may permit the state to find derivative evidence that incriminates the witness or may involve the possible disclosure of a defence, there may be other aspects of this testimony that would raise none of the above concerns vis-à-vis the witness. Sopinka J. would have the trial judge attempt to balance the interests of the state against those of the compelled witness at the time the witness is sought to be compelled. Although my colleague alludes to the possibility of a remedy at the trial of the witness, he does not elaborate upon the appropriate criteria to be considered at such a time. In my opinion, such an approach leaves both the Crown and the witness in a state of legal uncertainty regarding what conduct may or may not be violative of the witness's rights, and will therefore inhibit their ability to monitor or avoid such conduct during the examination of the compelled witness. If, on the other hand, the witness is held not to be compellable, then the state is not only deprived of those aspects of the witness's evidence which would have raised concerns akin to those enumerated by my colleague, but it is also
deprived of relevant portions of the witness's evidence which would not have raised such concerns. In such a case, the state unnecessarily loses the benefit of evidence which, under a more careful balancing, it should reasonably have had access to.
A third consideration that bears mentioning is the very real possibility that witnesses may actually choose to testify at their own preliminary inquiry. Where witnesses choose to testify at this inquiry, then they effectively forfeit many if not most of the advantages that they may have gained by remaining silent at the trial of another. Their defence is disclosed, derivative evidence may be uncovered, and their own statements may even be used against them in their subsequent trials. Sopinka J. would have the presiding judge attempt to balance, on one hand, various unrealized and often speculative prejudices to the witness against, on the other hand, the state's interest in the witness's evidence -- even where the witness has not yet had to decide whether he will testify at his own preliminary inquiry. If the judge opts in favour of finding the witness to be non-compellable and that witness subsequently decides to testify at his own preliminary inquiry, then the state will have been deprived of that individual's evidence for nought. The question of whether or not a witness will testify at his own preliminary inquiry, moreover, is highly speculative since the witness qua accused need not disclose his intention to testify in advance. A determination of possible prejudice to the witness is even more conjectural if the witness has not yet even been charged. I believe that placing too much emphasis on assessing actual compellability fails to consider the difficulties that trial judges would face on a significant number of occasions because of a dearth of the information necessary to arrive at a full and fair balancing of the interests of the state versus those of the individual.
Fourth, it is trite law to say that there is no constitutional protection against being conscripted to testify against others. Only when a witness is
predominantly being conscripted to testify against himself do we bring to bear the arsenal of protections collectively massed within s. 7 of the Charter. I fear, however, that my colleague's approach could encourage, or at least facilitate, "conspiracies of silence" amongst individuals who seek to ensure their collective safety by relying on their non-compellability at one another's trials. Although society has always had an interest in prosecuting crime, I suspect that its interest in prosecuting crimes that are committed by organized groups may be even greater. The facts of R. v. Jobin 2 , heard concurrently with the present appeal, are a prime example.
Finally, I note that my colleague's approach also fails to address the possibility that the defence, rather than the Crown, may seek to compel a witness in order to effectuate a full and fair defence. Although, from a witness's perspective, the identical liberty interest would be engaged, it is far from clear to me that the balancing approach he suggests would be appropriate or even apposite. It is not without significance that the perceived need for a principled and consistent approach to compellability at the instance of either the Crown or the accused were considerations that were found to be determinative of the present question by the Court of Appeal.
E.Conclusion
In summary, it is my strongly held belief that Sopinka J.'s approach places too much emphasis on a one-time assessment of compellability and not enough on the remedies that the witness may have available to him at his own trial, if that trial ever even comes to pass. For this reason, and given the speculative nature of many of the factors pertinent to his determination, I see some danger and considerable inconsistency with the common law in setting the threshold of non-compellability of a witness as low as he suggests.
What is needed in order to give true balance to the interests of the compelled witness and those of the state is an approach that addresses the problem at both ends. Individual witnesses must not be compelled to participate in shams, nor should they be permitted to protect themselves behind false walls. A material disincentive against fundamentally unfair conduct by the Crown must operate to protect the compelled witness from being subjected to abuses of power by the state. Since both of my colleagues only address the problem substantially from one side, under neither of their approaches does such a disincentive come fully into play. I note that the Chief Justice would favour adopting both derivative evidence immunity and my colleague Sopinka J.'s approach to non-compellability. With respect, I believe that such a combination would shift the balance unduly in favour of the witness/accused, and would add considerably to the length of proceedings without adding significantly to their content.
I believe that we must not bog down our court systems by requiring them to engage in lengthy inquiries into the investigatory history of all evidence that is "plausibly related" to a witness's previous testimony. Under the approach that I have set out above, a court's inquiry at the subpoena stage will be specific and will focus on what is known rather than what might be anticipated. The inquiry at the trial stage, moreover, will generally be limited to fairly discrete portions of the record from the previous proceedings, which the accused may rely on in an effort to demonstrate fundamental unfairness in those proceedings, and where many of the factors enumerated by my colleague Sopinka J. will be both defined and measurable.
Recalling that the purpose of the principles of fundamental justice is, amongst other things, to lay out a discernable "constitutional bottom line", I believe my reading of those principles to be more consistent with the common law, the spirit of the Charter, the effective conduct of trials, and the equitable balancing of the interests of both the
individual and the state than the approaches advanced by either of my two colleagues. I note that s. 24 of our Charter is said to exist partly in order to purge the judicial system of the "fruit of the poisoned tree". In light of the conclusions that I have reached above, I cannot conclude that we have planted any poisonous seeds.
V.Disposition
In light of my finding as to Crown conduct that would violate s. 7, I am satisfied that the protections accorded a witness under ss. 7 and 13 of the Charter are such that although s. 5 of the Canada Evidence Act abrogates the common law privilege against self-incrimination, this fact does not render s. 5 unconstitutional. Section 5 of the Canada Evidence Act does not violate s. 7 of the Charter.
In this case, the trial judge erred in quashing the subpoena against J.P.M., since he arrived at this conclusion on the basis that, under the circumstances, J.P.M. should enjoy an absolute right to remain silent. As a result, a new trial must be ordered. If the charge against J.P.M. were outstanding, he would be compellable at the trial of R.J.S. unless he were able to demonstrate fundamental unfairness in the fact of his compellability. Although the reason for which the offenders are tried separately would appear, at first blush, to be valid and in good faith, the witness J.P.M. would also have been entitled to seek at his own trial, had there been one, to demonstrate colourability amounting to fundamentally unfair conduct by the Crown. The charge against J.P.M. has, however, been stayed and any question as to the compellability of J.P.M. is therefore now moot.
Accordingly, I would dismiss the appeal.
The reasons of Sopinka and McLachlin JJ. were delivered by
SOPINKA J. -- I have read the reasons of Justice L'Heureux-Dubé and Justice Iacobucci and agree with the result they reach. With respect, I would
not adopt the derivative use approach proposed by Iacobucci J. In my view, the compellability approach which I propose (i) is more consistent with the common law; (ii) does not affect the operation of s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5; and (iii) is more conducive to the efficient conduct of trials. With respect to the reasons of L'Heureux-Dubé J., while our approaches are not fundamentally different and the test of compellability is practically the same, I arrive at the test on the basis of different principles with a different emphasis in its application.
It is important at the outset to properly characterize the issue in this case. The issue is not whether s. 5 of the Canada Evidence Act complies with the dictates of fundamental justice because it requires the co-accused to answer incriminating questions and whether additional use protection is required for the evidence. The issue is whether, under the principles of fundamental justice, the co-accused can be compelled as a witness. Section 5 deals with the right of a witness to refuse to answer questions once in the witness box. The issue in this case is whether the Crown can get him there. As stated by Cartwright J. in Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, at p. 476:
Section 5 does not purport to say who shall or shall not be compelled to take the witness stand. It deals with the rights and obligations of a witness who is already on the stand.
This was affirmed by a unanimous judgment of this Court in R. v. Amway Corp., [1989] 1 S.C.R. 21, at pp. 30-31: In examining the rights of a defendant at common law in actions to enforce a forfeiture or penalty, it is necessary to bear in mind three separate and distinct concepts with respect to the defendant as a witness: competence, compellability and the privilege of a witness to refuse to answer questions tending to incriminate. These concepts and their historical background are reviewed in Cross on Evidence [6th ed. 1985], at pp. 187-90. The critical distinction between compellability
and the privilege of a witness is well understood in the setting of a criminal trial. An accused charged with an offence under the Criminal Code is not compellable to enter the witness box but once that person does, he or she is not excused from answering questions which may tend to incriminate. The accused has only the rights of any other witness: namely, to object to answer such questions and to obtain the protection afforded by s. 5 of the Canada Evidence Act (see Batary v. Attorney General for Saskatchewan, supra, at p. 473). With the advent of the Charter the accused can avail himself or herself of the wider protection afforded by s. 13 of the Charter (see McIntyre J. in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 377.)
The basis for compellability of any witness is the common law. At common law the accused was initially neither competent nor compellable at his or her own trial. The common law has been altered to make the accused competent for the defence. His or her non-compellability continues to be protected by the common law, reinforced, now, by s. 11(c) of the Canadian Charter of Rights and Freedoms. The accused's compellability in other proceedings is also governed by the common law. The compellability of witnesses generally is based on the common law principle that "the state is entitled to every person's evidence". See Re Spencer and The Queen (1983), 145 D.L.R. (3d) 344 (Ont. C.A.), at p. 351, aff'd [1985] 2 S.C.R. 278. This is a principle to which the common law made exceptions.
The common law often treated the accused as an ordinary witness but, on the other hand, recognized his or her special situation. This required a balancing of the principle that the accused was entitled to remain silent until a case had been made against the accused and the principle that the state is entitled to every person's evidence. This, generally, is the approach which in my opinion accords with the common law and therefore, if carried into s. 7 of the Charter, is the relevant principle of fundamental justice. If not included in s. 7, it remains a principle of the common law. I, therefore, focus on the common law principle with respect to
compellability -- an issue that must, generally, be faced before the co-accused enters the witness box.
On the other hand, my colleague, Iacobucci J., focuses on the protection that can be afforded to the co-accused once he or she is already in the witness box. Parliament has already spoken to this issue and has decided that the protection should be limited to use immunity. It is common ground that s. 5 of the Canada Evidence Act abrogated the common law and substituted use immunity. Without any common law basis, he would enlarge the protection in the statutes by substituting a form of derivative use immunity available to all witnesses who are subsequently charged. He finds that this principle is a principle of fundamental justice enshrined in s. 7 of the Charter based on the right against self-incrimination. This requires a determination that R. v. Hebert, [1990] 2 S.C.R. 151, did not exhaust the common law principle of the right to silence, a conclusion which I support. I will endeavour to show in the reasons that follow that a flexible approach which balances the two competing interests to which I have referred is more consistent with the common law, with s. 5 of the Canada Evidence Act and, from the point of view of the conduct of trials, is more practical and efficient.
The Common Law
As I have stated, the common law principle that the state is entitled to every person's evidence was subject to a number of exceptions. Apart from the accused and his or her spouse at the trial of the accused, the common law recognized other exceptions. See Spencer, supra, at pp. 351-52 D.L.R.; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.), and Re Mulroney and Coates (1986), 54 O.R. (2d) 353 (H.C.).
From time to time, an exception was made with respect to the accused in other proceedings. Accordingly, in Batary, in which a person charged with murder was subpoenaed to testify at a coroner's inquest, this Court issued an order of prohibition precluding enforcement of the subpoena. I appreciate that this decision has been criticized by commentators who point out that perhaps historically, accused persons were occasionally called before coroners and if they were not, it may have been because they could not be compelled to answer incriminating questions. The latter point I might point out is pure speculation and, in any event, does not explain what would have prevented them from being called as witnesses and asked questions that were not incriminating. Be that as it may, I take Batary to stand for this proposition: the Supreme Court, speaking through Cartwright J. (no stranger to the principles of fundamental justice), considered that the circumstances in which the accused was called were unfair and therefore an exception could be made to the general principle of compellability. This is made abundantly clear in the following passage, at p. 476:
It would be a strange inconsistency if the law which carefully protects an accused from being compelled to make any statement at a preliminary inquiry should permit that inquiry to be adjourned in order that the prosecution be permitted to take the accused before a coroner and submit him against his will to examination and cross-examination as to his supposed guilt.
I am aware, of course, that in Faber v. The Queen, [1976] 2 S.C.R. 9, a person who was not charged but likely to be charged was treated differently. This distinction recognized that a person actually charged had a better claim to an exemption from the principle that the state is entitled to every person's evidence.
In O'Hara v. British Columbia, [1987] 2 S.C.R. 591, at p. 607, Dickson C.J., speaking for the majority, expressly affirmed Batary, stating:
It is true that the authority to establish such an inquiry is not without limits. A province must respect federal jurisdiction over criminal law and criminal procedure. For example, a province may not compel a person charged with a criminal offence to testify as a witness before a provincial inquiry into the circumstances giving rise to that charge: Batary v. Attorney General for Saskatchewan, [supra].
Similarly, the High Court of Australia made an exception to the general principle in Hammond v. Commonwealth of Australia (1982), 152 C.L.R. 188, in which an accused person was summoned before a public inquiry to testify to the matters in respect of which he had been charged. Brennan J. stated, at pp. 202-3:
It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.
In England there is a salutary practice against calling the accomplice, who stands charged with the offence, as a witness against his co-accused unless the Crown undertakes to discontinue proceedings against the accused. See Cross on Evidence (7th ed. 1990), at p. 210. In some cases, the practice is complied with by dealing with the proceedings against the accomplice first.
In R. v. Pipe (1966), 51 Cr. App. R. 17, at p. 21, when the practice was not followed at trial, the Court of Appeal stated:
In the judgment of this Court, this well-recognised rule of practice is one which must be observed, and, accordingly, in the circumstances of this case there is no alternative but to quash the conviction.
While this practice seems designed to protect the interests of the accused against whom the evidence is led, it also operates in favour of the co-accused.
Although, pre-Charter cases following Re Regan, [1939] 2 D.L.R. 135 (N.S.C.A.), did not make an exception with respect to the compellability of a co-accused who was separately charged, there is no fundamental distinction between the situation in Batary and that in cases such as Regan. In both cases the prejudice to the co-accused's interests is the same. Professor Ratushny makes this point abundantly clear in "Is There a Right Against Self-Incrimination in Canada?" (1973), 19 McGill L.J. 1, at p. 59:
The comment by Cartwright, J. about the inconsistency that would result from requiring an accused to testify at an inquest suggests the importance of the policy of non-compellability with respect to an accused. The suggestion is that since he is protected against being compelled at his preliminary inquiry, the same policy should be extended to the coroner's inquest.
If the significance of the decision is to be related to a general policy against compellability (or self-incrimination, if you prefer) rather than historical anomaly, a number of consequences should follow. The Regan rule should be abolished, since the inconsistency with respect to a co-accused's trial is as great as (if not greater than) the inconsistency would be at a coroner's inquest. In addition, the policy should be applied where the person has not yet been charged, but is a suspect. Otherwise, the Crown could circumvent the policy by the mere expedient of delaying the laying of charges. [Emphasis in original.]
No doubt the state's interest in the evidence of the co-accused is greater and the focus is less on obtaining discovery from the co-accused when the evidence is sought in order to prosecute another accused than it is in a proceeding such as was involved in Batary. In these circumstances, there is a heavier burden on the co-accused to show unfairness and prejudice to his or her interests. As well, I agree with Professor Ratushny that in some circumstances a person who is for all intents and
purposes an accused but has not been formally charged should be able to avail himself or herself of the benefit of an exception.
Post-Charter cases have tended to favour an exception as a principle of fundamental justice. See Re Welton and The Queen (1986), 29 C.C.C. (3d) 226 (Ont. H.C.), at p. 230; R. v. Zurlo (1990), 57 C.C.C. (3d) 407 (Que. C.A.); R. v. Primeau (1993), 108 Sask. R. 193 (Q.B.); and Re Praisoody (1990), 1 O.R. (3d) 606 (Gen. Div.), 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam). Although some of the opinions expressed in these cases tended to view the protection afforded by the principle of fundamental justice in absolute terms, in Re Praisoody, supra, Weiler J. (as she then was) applied what I consider the correct approach. After observing that a co-accused is not always entitled to refuse to be called, Her Ladyship resolved the question by balancing the interest of the accused in remaining silent against the Crown's interest in obtaining the evidence. In balancing these interests she suggested a number of factors that were considered relevant.
In my opinion it would be consistent with the development of the common law and the principles of fundamental justice to allow the court to make an exception to the general right of the state to every person's evidence when the right of the accused to remain silent is seen to outweigh the necessity of having that evidence. This exception would recognize the anomaly of the systematic compulsion of persons accused of a crime to testify in other proceedings while, at the same time, they are entitled to remain silent if interrogated by the police before their trial and are granted absolute immunity from testifying during their trial. The absence of such an exception would undermine these rights if not render them illusory. This
concern was at the heart of the judgment in Hebert, supra, in which McLachlin J. stated, at p. 174:
The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory.
The claim of a person actually charged to an exception is stronger but this would not rule out the claim of a person who is in the position of an accused as, for instance, where the charges have simply been delayed in order to obtain the evidence. I will return later to discuss some of the factors to be considered in balancing the two important interests in arriving at a decision with respect to compellability.
With respect to the contrary views, I believe that a flexible approach is preferable to: (1) the derivative evidence approach advocated by Iacobucci J., or (2) the return to the common law approach favoured by some academic writers. With respect to the first approach, I have always understood that the principles of fundamental justice are generally derived from the common law. They were not invented with the advent of the Charter, although exceptionally a principle has been recognized notwithstanding that it did not find its precise formulation in the common law. The approach which I have outlined above accepts the basic tenets of the applicable common law principles but with a flexible, principled approach to the exceptions to a common law rule. This is an approach which we have already applied to exceptions to the hearsay rule and it is apt here (see R. v. Smith, [1992] 2 S.C.R. 915). I can find no support for the principle of derivative use immunity in the common law. Before s. 5 of the Canada Evidence Act was enacted, a witness could simply refuse to answer. Under s. 5(2), only the "answers" were protected from subsequent use. Indeed, derivative use immunity appears to have been an invention of the United States in order to deal with the unique
problem posed by the Fifth Amendment, a constitutional guarantee that is quite different from ours.
Moreover, the derivative use immunity approach addresses the problem at the wrong end. As I have pointed out above, this is a question of compellability and not the use of the evidence. Once the accused has testified, attempting to contain the damage may be like closing the barn door after the horses have escaped. My colleague recognizes this problem and quotes the following passage from Ratushny, "The Role of the Accused in the Criminal Process" in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 451, at pp. 483-84, which bears repeating:
The basic problem is that many of the protections provided by the criminal process may be subverted by calling the suspect or accused as a witness at some other proceeding prior to his criminal trial.
It is true that such a witness may prevent his testimony from being introduced at any subsequent criminal trial. However, the damage may be done in other ways. The earlier hearing might be used as a `fishing expedition' to subject the witness to extensive questioning with a view to uncovering possible criminal conduct. The questioning might also be used to investigate a particular offence. For example, the accused might be required to reveal possible defences, the names of potential defence witnesses and other evidence. Moreover, the publicity generated by the hearing may seriously prejudice the likelihood of a fair trial.
The problem is that the initial hearing is likely to have none of the protections guaranteed by the criminal process. There will be no specific accusation, no presumption of innocence, no protections against prejudicial publicity, no rules of evidence and so on. It is submitted that there is a serious crisis of integrity in a criminal process whose detailed protections may so easily be ignored. Nor are these merely theoretical problems. [Emphasis added.]
It is for this reason that matters of compellability are routinely dealt with when a witness is
called upon to testify. See R. v. Duvivier (1991), 64 C.C.C. (3d) 20 (Ont. C.A.), at p. 25, in which Doherty J.A., speaking for the court, stated:
The determination of the compellability of a witness is routinely made by the presiding judge when the witness is called to give evidence: see R. v. Czipps (1979), 48 C.C.C. (2d) 166, 101 D.L.R. (3d) 323, 12 C.R. (3d) 193 (Ont. C.A.); R. v. Bailey (1983), 4 C.C.C. (3d) 21, 32 C.R. (3d) 337 (Ont. C.A.): Re McNamara and The Queen (1978), 12 C.R. (3d) 246 (Ont. H.C.J.): Re Regina and Mann (1971), 4 C.C.C. (2d) 319, [1971] 5 W.W.R. 84 (B.C.S.C.); R. v. Hawke (1975), 22 C.C.C. (2d) 19 at p. 26, 7 O.R. (2d) 145, 29 C.R.N.S. 1 (C.A.). As this court recognized in R. v. Logan (1988), 43 C.C.C. (3d) 567, 65 O.R. (2d) 717, 44 C.R.R. 149, the trial court (or, I add, the justice conducting the preliminary inquiry) is usually in the best position to determine issues relevant to the compellability of a witness. Nor does the existence of a constitutional flavour to the argument against compellability necessarily alter the trial court's preferred position: see Re Chase and The Queen (1982), 1 C.C.C. (3d) 188, 142 D.L.R. (3d) 507, [1983] W.C.D. 067 (B.C.S.C.).
The second approach, a return to the common law, would require s. 5(2) to be rewritten but, in addition, it would be absolute and would not permit the balancing of the two important principles which are at stake.
While recognizing that at common law an issue of compellability was resolved at the "subpoena" stage, we cannot ignore the fact that as a principle of fundamental justice it enjoys protection under s. 7. It follows that a person who is wrongfully compelled to testify when that person was not compellable has suffered a breach of his or her Charter rights. In some cases, the unfairness of compelling a witness to testify will not appear until after the witness has given evidence. In such circumstances, the person so compelled should not be precluded from seeking a remedy at the trial stage in proceedings against that person. One of the available remedies for breach of Charter rights is a stay of proceedings. The circumstances under which a stay is an appropriate remedy will fall to be determined in future cases in which that issue arises. I
emphasize, however, that, as a general rule, the appropriate time to raise the issue of compellability is at the stage when the witness is asked to take the stand. The opportunity to raise the issue subsequently should not be used simply to give the person compelled "two bites at the apple" by using that opportunity as an appeal of the determination made at the subpoena stage, nor to enable that person to "lie in the weeds" when the matter could have been raised effectively at the appropriate time.
The Effect on Section 5 of the Canada Evidence Act
The approach suggested in these reasons would leave s. 5 of the Canada Evidence Act intact which would continue to operate in tandem with s. 13 of the Charter as before. On the other hand, the derivative evidence approach would render s. 5(2) of the Canada Evidence Act and s. 13 virtually superfluous. These provisions only come into play when criminal proceedings are subsequently taken against a witness who has been compelled to testify. Under the residual derivative evidence approach, reliance would be placed on the principle of fundamental justice that excludes any evidence which "but for" the compelled evidence would not have been obtained. Obviously, use of the evidence directly obtained in the form of testimony would be covered by the proposed exclusionary rule. Section 5(2) and s. 13 would therefore be largely redundant.
Effect on the Conduct of Trials
The concept of use immunity is well understood and applied by our courts. The testimony cannot be used except in cross-examination as to credibility. Derivative use immunity based on any test requires that the evidence which is adduced against the party who was compelled be screened. I cannot see how in virtually every case a voir dire of the whole of the evidence can be avoided. Iacobucci J. refers to the criticisms levied against derivative use
immunity by La Forest J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425. This criticism is of complete derivative use immunity which excludes all evidence causally connected to the compelled testimony. I question the theory that the difficulties encountered in applying derivative use immunity in the United States will be appreciably reduced by adopting the "but for" test. First, the issue as to whether the evidence is causally connected to the compelled testimony will continue to be a first step. The Crown will seek to establish that there was no connection, therefore rendering it unnecessary for it to establish the hypothetical situation that the evidence would have been discovered in any event. The accused will surely seek to establish a connection in order to raise the issue. As my colleague Iacobucci J. states, "the accused can raise the issue ... by demonstrating a plausible connection between the proposed evidence and prior testimony" (p. 565). My colleague equates the new proposed procedure with a s. 24(2) analysis and cites R. v. Black, [1989] 2 S.C.R. 138, in support. It is, therefore, apt to point out that in Black Wilson J. first determined that "the knife ... is derivative evidence obtained as a direct result of `a statement or other indication' made by the [accused]" (p. 162). Wilson J. then turned to consider the second issue, whether it would have been discovered in any event. Once, therefore, the first issue is resolved and a connection is established, the second issue must be addressed. This issue requires the proof of a hypothetical. Would the evidence have been discovered but for the compelled testimony? While the first issue can be based on what actually happened, the second must be based on what did not but would have happened. Clearly, as my colleague acknowledges, the burden of
proof will rest with the Crown. It will not be an easy one to meet.
I expect that difficulties experienced with derivative use immunity in the United States will be repeated here leading to interminable admissibility proceedings and resulting in virtual transactional immunity. See R. S. Ghio, "The Iran-Contra Prosecutions and the Failure of Use Immunity" (1992), 45 Stan. L. Rev. 229, and J. A. Murphy, "The Aftermath of the Iran-Contra Trials: The Uncertain Status of Derivative Use Immunity" (1992), 51 Md. L. Rev. 1011. In my view it is preferable to resolve the issue of compellability before the evidence is given. There is then and there finality to the matter. If the co-accused is compelled, both the Crown and co-accused will be fully aware as to what evidence is admissible in the prosecution of the co-accused. The trial of the co-accused can proceed in the normal way subject to the application of s. 5 of the Canada Evidence Act and s. 13 of the Charter. If the co-accused is not compelled, the trial against the co-accused will proceed without restrictions.
Conclusion
I conclude that a person charged may be entitled to an exception from the principle that the state is entitled to every person's evidence as a principle of fundamental justice under s. 7. The person claiming the exception should, as a general rule, assert the right before his or her testimony is taken and has the burden of satisfying the judge that in all the circumstances the prejudice to his or her interests overbears the necessity of obtaining the evidence. A person who is not actually charged may in some circumstances also claim the exception but since we are not called upon in this case to determine in precisely what circumstances this may be done, I prefer to leave this to another day. In balancing these interests, the following factors,
which are not intended to be exhaustive, should be considered:
1.the relative importance of the evidence to the prosecution in respect of which the accused is compelled;
2.whether the evidence can be obtained in some other manner;
3.whether the trial or other disposition of the charge against the accused whose evidence is sought to be compelled could reasonably be held before he or she is called to testify;
4.the relationship between the proposed questions to the accused witness and the issues in his or her trial;
5.whether the evidence of the accused witness is likely to disclose defences or other matters which will assist the Crown notwithstanding the application of s. 5(2) of the Canada Evidence Act;
6.any other prejudice to the accused witness, including the effect of publication of his or her evidence.
Finally, as explained above, failure to raise the matter at the appropriate time, or an adverse ruling in that regard, will in some circumstances not preclude the matter being renewed in subsequent proceedings. Application to this Case
In this case, the trial judge quashed the subpoena against J.P.M. on the basis of the application of an absolute right to remain silent which made J.P.M. non-compellable. On the basis of the foregoing, it follows that he erred and a new trial must be ordered. If the charge against J.P.M. were outstanding, his compellability would have to be determined by the trial judge in accordance with the principles outlined above. The charge against J.P.M. has, however, been stayed and, while there
must be a new trial, the issue of compellability of J.P.M. will not arise. I would answer the constitutional questions as proposed by Iacobucci J.
Appeal dismissed.
Solicitors for the appellant: Gold & Fuerst, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste-Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina.
Solicitor for the intervener the Attorney General for Alberta: The Department of the Attorney General, Edmonton.
1- Judgment rendered on April 13, 1995.
2- Judgment rendered on April 13, 1995.
