CITATION: R. v. Seecharran, 2016 ONSC 7642

COURT FILE NO.: CR-15-50000263

DATE: 2016-12-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MICHAEL SEECHARRAN

Applicant

Christine Tier, counsel for the Crown Respondent

Sid Freeman, counsel for the accused/ Applicant

HEARD: December 1, 2016

M.A. CODE J.

REASONS FOR JUDGMENT

on Sections 7 and 13 Charter Motion

A. OVERVIEW

1The Applicant Michael Seecharran (hereinafter, Seecharran) is awaiting trial in this Court on two separate Indictments. In one Indictment, he is charged with first degree murder. In the other Indictment he is charged with attempt to obstruct justice. Both matters are scheduled for trial early next year.

2Seecharran brought the present Application in relation to the obstruct justice Indictment. He seeks to exclude certain evidence at that trial on the basis of alleged violations of either s. 7 or s. 13 of the Charter of Rights. I am not presently scheduled to be the trial judge in relation to this matter but the parties agreed to be bound by my ruling. As a practical matter, the Crown may have no other evidence, if the present Application is successful. It, therefore, makes good sense to argue the issue well in advance of trial, in order to determine whether the scheduled trial time will be needed.

3The parties argued the Application on December 1, 2016, and I reserved judgment. These are my Reasons for Judgment.

B. FACTS

4The Applicant Seecharran was charged with the murder of one Edwin Villon on September 16, 2012. It is alleged that Seecharran was the principal who fired a single shot to the head of Villon, thereby causing death. Seecharran’s mother, Karla Garcia Woltke, was also charged with the same murder on the basis that she was a party who had counseled, aided or abetted her son. The alleged motive for the murder was that Villon had assaulted Ms. Woltke by striking her in the face with a drinking glass and cutting her. Subsequently, Ms. Woltke and her son Seecharran had certain conversations and he obtained a firearm. It is alleged that Seecharran shot and killed Villon in order to exact revenge for the earlier assault on his mother. I understand that Seecharran does not deny firing the fatal shot that killed Mr. Villon. The only issue at trial will be whether he had the requisite mens rea for murder.

5The Crown proceeded separately against Seecharran and his mother and called them as witnesses, one against the other, at separate preliminary inquiries. I am advised that Ms. Woltke willingly incriminated her son Seecharran and he was committed for trial. However, Seecharran substantially refused to testify and incriminate his mother. It is necessary to go into some detail as to exactly what happened at the mother’s preliminary inquiry as it is the Transcript of those proceedings that Seecharran now seeks to exclude at his trial for obstruct justice.

6Seecharran was 21 years old at the time of the homicide in 2012. He is now 25 years old. He was called as a witness by the Crown at his mother’s preliminary inquiry on May 28, 2014. As I read the record, he was “affirmed” as a witness, although the presiding judge later stated, “All right, Mr. Seecharran, you are still under oath,” and at one point defence counsel stated, “You were just sworn.” In any event, Seecharran was either sworn or affirmed as a witness. As a result, what ensued was “evidence” or “testimony,” in the literal sense of these terms, although the “evidence” or “testimony” was not of much value. I simply mean that Seecharran did respond to questions, after being sworn or affirmed, as will be further set out below.

7Seecharran began his “testimony” by stating, “I would like to evoke [sic] the protection of s. 5 of the Canadian Evidence Act.” His lawyer, Ms. Freeman, was present in court and it is apparent that Seecharran had received legal advice. The three counsel present, for the Crown, Ms. Woltke and Seecharran, all agreed that he did not have to invoke the protection of s. 5 of the Canada Evidence Act in response to each and every question and that, in any event, s. 13 of the Charter provided “blanket protection,” as the Crown put it. The presiding judge, Dizio J., agreed to proceed on this basis.

8The Crown proceeded to ask a series of questions and Seecharran replied either, “I would like to exercise my right to remain silent” or “I refuse to testify,” in response to each question. Dizio J. then took a brief recess and asked Seecharran’s counsel to provide him with some further legal advice. The Crown stated on the record that she would not be relying on the powers in s. 545 of the Criminal Code, if Seecharran continued to refuse to provide substantive answers to her questions. Instead, the Crown would advise the police to charge him with obstruct justice.

9After the recess, Dizio J. reminded Seecharran that he was “still under oath” and asked if he had had an opportunity to receive legal advice from his lawyer. He replied, “Yes.” Crown counsel then resumed her examination-in-chief and Seecharran continued to reply by stating either, “I would like to exercise my right to remain silent” or “I refuse to testify.” After the Crown was unable to obtain any useful evidence, it was agreed that counsel for Ms. Woltke had a right to cross-examine the witness. Defence counsel then asked a series of questions. Seecharran continued to reply by stating either, “I would like to exercise my right to remain silent” or “I refuse to testify.” The only answer of any substance that he gave was “yeah,” when asked by defence counsel whether Ms. Woltke was his mother. As counsel later put it, “He did identify his mother, I got one answer.”

10Dizio J. again asked Seecharran whether he had received legal advice about his obligation to testify and he replied by nodding “yes.” Crown counsel re-stated her earlier position, to the effect that she was not asking Dizio J. to exercise his powers under s. 545, to repeatedly adjourn the preliminary inquiry and imprison the witness for up to 8 days, until he agreed to testify. Instead, she would have the police charge Seecharran with obstruct justice. Seecharran, who was already in custody awaiting trial on the murder charge, was then removed from the courtroom.

11The only other point to note about this part of the proceedings is that counsel for Seecharran never suggested before Dizio J. that the Crown’s efforts to compel testimony from him, at his mother’s preliminary inquiry, were for “the predominant purpose” of seeking “to obtain incriminating evidence” against Seecharran himself, as opposed to the “legitimate public purpose” of seeking to obtain incriminating evidence against his mother. Had the former been the case, Seecharran could have been granted a s. 7 constitutional exemption from testifying at his mother’s preliminary inquiry. See: Branch v. B.C. Securities Commission (1995), 1995 142 (SCC), 97 C.C.C. (3d) 505 at 512-513 (S.C.C.); R. v. R.J.S. (1995), 1995 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.); R. v. L.Z. (2001), 2001 8539 (ON CA), 155 C.C.C. (3d) 152 (Ont. C.A.); R. v. P.C., 2011 ONSC 1824.

12The final questioning of Seecharran by Crown counsel did cause me some concern in this regard, as the Crown asked the witness three times, “did you shoot Edwin Villon” and “did you kill Edwin Villon?” These questions were asked at the end of the Crown’s examination, at a point when the questioning had been frustrated, and no substantive answer was given to the three questions. Even if these final three questions may have been improper, when viewed in isolation, they do not disclose a “predominant purpose” for the Crown’s decision to compel Seecharran at his mother’s preliminary inquiry. Accordingly, there was no reason for Seecharran’s counsel to seek a s. 7 exemption from testifying at that time.

13At the end of the two preliminary inquiries, both Seecharran and Ms. Woltke were committed for trial. Ms. Woltke subsequently pleaded guilty to manslaughter and was sentenced by Trafford J. As a result, Seecharran will not be compelled to testify against her at a trial.

C. ANALYSIS

(i) Introduction

14The Crown seeks to tender the Transcript from the mother’s preliminary inquiry at Seecharran’s trial for obstruct justice. The Indictment pleads this offence in the following way:

… did wilfully attempt to obstruct the course of justice by not providing material evidence to the Court at the preliminary inquiry of Her Majesty the Queen v. Karla Garcia Woltke … [Emphasis added.]

The Crown submits that the Transcript proves the actus reus of the offence, namely, “not providing material evidence.”

15The Applicant Seecharran seeks to exclude the Transcript, pursuant to s. 24(2) of the Charter, on the basis of alleged violations of ss. 7 and 13 of the Charter. The s. 7 violation is novel and weak, in my view. The s. 13 violation is more conventional, although somewhat uncertain in light of recent authority.

(ii) Section 7 of the Charter

16Beginning with the s. 7 argument, Ms. Freeman submits that it violated Seecharran’s right to “security of the person,” by compelling him to testify against his mother in this particular case. She relies on New Brunswick v. J.G., 1999 653 (SCC), [1999] 3 S.C.R. 46 at paras. 58-61, a case involving child protection proceedings and the right to state-funded counsel at such proceedings. Lamer C.J.C. stated, on behalf of the majority:

This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, at pp. 587-88. Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. Before addressing this issue, I will first make some general comments about the nature of the protection of “psychological integrity” included in the right to security of the person.

For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83, “an individual interest of fundamental importance in our society”. Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as “unfit” when relieved of custody. As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct.

17Ms. Freeman submits, by analogy to J.G., that compelling Seecharran to testify against his mother in the particular circumstances of this case had “a serious and profound effect on [his] psychological integrity.” She relies, inter alia, on an affidavit from Seecharran on which he had been cross-examined in earlier proceedings. She submits that Seecharran was young, uneducated, isolated, vulnerable, abandoned by his father, and close to his mother in what was an otherwise dysfunctional family. In these circumstances, compulsion against his mother violated his “psychological integrity.”

18In my view, it is unnecessary to decide this question concerning the “security of the person” branch of s. 7 of the Charter. It is well established that compulsion to testify engages s. 7 “liberty” interests. See: R. v. R.J.S., supra at paras. 30-43. It adds little to the s. 7 analysis to say that both “liberty” and “security of the person” are engaged in this case. The real issue, in my view, is whether compelling Seecharran to testify at his mother’s preliminary inquiry violated “the principles of fundamental justice.” The J.G. case is of no assistance on this point as “the principle of fundamental justice” at issue in that case was fair trial interests and the need for state-funded counsel. See, e.g.: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.). That is not a live issue in the present case as Seecharran has had counsel throughout.

19Ms. Freeman’s argument concerning “fundamental justice” is that Seecharran’s evidence was not necessary, in order to prove the Crown’s case against Ms. Woltke. She submits that the Crown had abundant independent evidence against Ms. Woltke, and that Seecharran’s evidence would add little. Given the minimal need for Seecharran’s evidence, and the substantial harm to “psychological integrity,” Ms. Freeman submits that a “principle of fundamental justice” was violated.

20I cannot accept this argument for two main reasons. First, Ms. Freeman has not established her starting premise, namely, that Seecharran’s evidence was unnecessary. The case against Ms. Woltke depended on her communications with the principal offender, namely, Seecharran. There was independent evidence as to the fact of these communications and there was some independent evidence as to some of the contents of the communications. However, Seecharran was an important witness because he was capable of giving a complete account of the content of the communications with his mother. Furthermore, even if his evidence had merely been confirmatory of other evidence, it could still be necessary in a criminal case because of the Crown’s burden to prove guilt beyond reasonable doubt. In short, his evidence was highly relevant and it was important to the case against his mother.

21The second reason for rejecting Ms. Freeman’s argument about “fundamental justice” is that balancing necessity against the “psychological integrity” of a witness is not one of “the basic tenets of our legal system.” The meaning of these “basic tenets,” which constitute s. 7 “principles of fundamental justice,” was explained in the following terms by Gonthier and Binnie JJ., speaking for the majority in R. v. Malmo-Levine (2003), 2003 SCC 74, 179 C.C.C. (3d) 417 at paras. 112-113 (S.C.C.):

In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) explained that the principles of fundamental justice lie in “the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system” (p. 503). This Court provided further guidance as to what constitutes a principle of fundamental justice for the purposes of s. 7, in Rodriguez, supra, per Sopinka J. (at pp. 590-91 and 607):

A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.

While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are “fundamental” in the sense that they would have general acceptance among reasonable people.

The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”: Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. [Emphasis in italics in Malmo-Levine.]

22The common law and statutory principles of evidence law have never recognized an exclusionary rule based on balancing a litigant’s need to call a witness against any harm to that witness’ “psychological integrity.” In particular, the rules relating to privilege, competence and compellability have strictly limited the classes of relationships that are privileged or non-compellable. The relationship of parent and child has never been recognized as a privileged or non-compellable relationship. Nor has a broad and uncertain class of relationships, characterized by weighing necessity against “psychological integrity,” ever been recognized. The one rule of evidence that comes closest to this approach is Dean Wigmore’s four part test for “case by case privilege.” However, in the present case, McMahon J. has already ruled that the communications between Seecharran and his mother do not meet Wigmore’s four part test for “case by case privilege.” The communications did not originate in confidence (Wigmore’s first criterion) and the injury to the relationship between parent and child resulting from disclosure is not greater than the benefit to the correct disposition of the criminal case (Wigmore’s fourth criterion). See: National Post v. Canada (2010), 2010 SCC 16, 254 C.C.C. (3d) 469 (S.C.C.); R. v. Seecharran, unreported, March 2, 2016 per McMahon J. (Ont. S.C.J.).

23Aside from the lack of any exclusionary rule or privilege that would prevent Seecharran from testifying against his mother, there is a contrary principle favouring the compellability of all witnesses who can provide relevant evidence. As Iacobucci J. put it in R. v. R.J.S., supra at para. 108:

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 expressed the point well (supra §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? [Emphasis added.]

Also see: Reference re Legislative Privilege (1978), 1978 1604 (ON CA), 39 C.C.C. (2d) 226 at 232 (Ont. C.A.); R. v. Spencer (1983), 1983 3111 (ON CA), 2 C.C.C. (3d) 526 at paras. 22-3 (Ont. C.A.), aff’d (1985), 1985 4 (SCC), 21 C.C.C. (3d) 385 (S.C.C.).

24As previously discussed, a s. 7 constitutional exemption from compulsion was recognized in Branch and R.J.S., where the state’s predominant purpose” is to incriminate the witness. However, that exemption has never been claimed in this case and there is no basis for it on the present record.

25In all these circumstances, the Applicant’s proposed “principle of fundamental justice,” involving a balancing of necessity against the witness’ “psychological integrity,” is not “a legal principle” and it is not “fundamental to the way in which the legal system ought fairly to operate,” as these two criteria for s. 7 “principles of fundamental justice” have been explained in Malmo-Levine.

26The Application to exclude the preliminary inquiry Transcript on the basis of an alleged violation of s. 7 of the Charter is, therefore, dismissed. In my view, there was no s. 7 violation when Seecharran was compelled to testify against his mother.

(iii) Section 13 of the Charter

27Ms. Freeman’s alternative argument is that the Transcript of Seecharran’s compelled testimony at his mother’s preliminary inquiry ought to be excluded pursuant to s. 13 of the Charter. That provision constitutionally entrenches, and somewhat expands, the privilege against self-incrimination found in s. 5 of the Canada Evidence Act which, in turn, replaced and reformed the earlier common law privilege. Section 13 provides 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.

28This particular provision of the Charter has produced a body of somewhat evolving case law. However, the following four propositions are clear.

29First, s. 13 only applies to “compelled” testimony at some prior proceeding. It has no application where a witness freely chooses to testify, for example, by deciding to testify in his own defence. See: R. v. Henry (2005), 2005 SCC 76, 202 C.C.C. (3d) 449 (S.C.C.). In the present case, there is no doubt that Seecharran was an unwilling witness who was “compelled” at his mother’s preliminary inquiry.

30The second proposition that clearly emerges from the s. 13 case law is that there must be some “other proceedings,” separate from the first proceeding where the compulsion took place. See: R. v. Dubois (1985), 1985 10 (SCC), 22 C.C.C. (3d) 513 (S.C.C.). Once again, there is no doubt that Seecharran’s upcoming trial for obstruct justice constitutes “any other proceedings,” separate and apart from the earlier murder preliminary inquiry where he was “compelled.”

31The third proposition, which has only recently been settled, is that s. 13 has no application where the “compelled” testimony from the prior proceeding is only being used to impeach the credibility of a witness in subsequent proceedings. See: R. v. Nedelcu (2012), 2012 SCC 59, 290 C.C.C. (3d) 153 (S.C.C.); R. v. Kuldip (1990), 1990 64 (SCC), 61 C.C.C. (3d) 385 (S.C.C.). Once again, in the present case the Crown is clearly seeking to use Seecharran’s “compelled” testimony from prior proceedings for purposes that go far beyond mere impeachment of credibility.

32The fourth proposition, which is critical to the present case, is that s. 13 does apply to “incriminating evidence,” that is, to evidence that is being used “to prove guilt” and not merely to impeach credibility at the subsequent proceeding. Moldaver J., speaking for the majority, recently explained this s. 13 requirement in R. v. Nedelcu, supra at paras. 9 and 16-17:

What then is “incriminating evidence”? The answer, I believe, should be straightforward. In my view, it can only mean evidence given by the witness at the prior proceeding that the Crown could use at the subsequent proceeding, if it were permitted to do so, to prove guilt, i.e., to prove or assist in proving one or more of the essential elements of the offence for which the witness is being tried.

The law is clear and I accept it to be so, that the time for determining whether the evidence given at the prior proceeding may properly be characterized as “incriminating evidence” is the time when the Crown seeks to use it at the subsequent hearing. (See R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350 (S.C.C.), at pp. 363-64.) That however, does not detract from my contention that the evidence to which s. 13 is directed is not “any evidence” the witness may have been compelled to give at the prior proceeding, but evidence that the Crown could use at the subsequent proceeding, if permitted to do so, to prove the witness’s guilt on the charge for which he or she is being tried.

In so concluding, I recognize that there will be instances where evidence given at the prior proceeding, though seemingly innocuous or exculpatory at the time, may become “incriminating evidence” at the subsequent proceeding, thereby triggering the application of s. 13. [Emphasis added.]

33There is no doubt, in my view, that the Crown seeks to use the Transcript from the prior proceedings “to prove or assist in proving one or more of the essential elements of the offence for which the witness is being tried,” as explained in Nedelcu. The Crown has pleaded that Seecharran attempted to obstruct justice “by not providing material evidence to the Court” at his mother’s preliminary inquiry. The Crown submits that the Transcript proves or assists in proving the actus reus of this offence. I agree. It is, therefore, being used as “incriminating evidence” at the subsequent trial, in the Nedelcu sense of this term.

34In light of the above analysis, the s. 13 issues that remain are relatively narrow. On behalf of the Crown, Ms. Tier makes two main points which, if correct, would exclude s. 13 from applying in the circumstances of this case. First, she submits that Seecharran never “testified” or gave “evidence” at his mother’s preliminary inquiry. Rather, he refused to “testify” and, in substance, gave “non-evidence.” Second, she submits that the Court of Appeal’s recent decision in R. v. Schertzer et al. (2015), 2015 ONCA 259, 325 C.C.C. (3d) 202 (Ont. C.A.), leave to appeal refused, 2015 CarswellOnt 16493, had the effect of expanding the two exemptions to s. 13 (perjury and giving contradictory evidence) so as to include obstruct justice in certain circumstances.

35The first point can be disposed of relatively easily. In my view, the Crown’s argument conflates the utility or substance of the testimony with the fact of the testimony. There is no doubt that Seecharran’s evidence at his mother’s preliminary inquiry was of little use, however, that is not unusual. Many witnesses turn out to be unhelpful. In addition, Seecharran did answer one substantive question, by testifying that the accused Woltke was his mother. This evidence was relevant to the issue of motive. He also responded positively, on two occasions, to questions from Dizio J. as to whether he had received legal advice about the duty to testify. In other words, he did give some useful or substantive testimony. Furthermore, the verb “testify” simply means “bear witness, proclaim.” The noun “testimony” means “evidence given in court, an oral or written statement under oath or affirmation.” See: The New Shorter Oxford English Dictionary [1993, Clarendon Press, Oxford], Vol. 2 at p. 3261. Seecharran “testified” or provided “testimony,” within the meaning of these two definitions. Finally, the term “evidence,” as used in s. 13 of the Charter, refers to “any incriminating evidence,” which must be evaluated at the time of the second proceeding. See: R. v. Nedelcu, supra; R. v. Dubois, supra. There is no doubt that the Transcript from the prior proceedings is being used as “incriminating evidence” at the subsequent proceedings. For all these reasons, the Crown’s first argument cannot succeed.

36The Crown’s second argument is somewhat more difficult to resolve. Section 13 of the Charter specifically exempts “a prosecution for perjury or for the giving of contradictory evidence” from its reach. The offence of “perjury” is enacted in s. 131 of the Criminal Code and the offence of “giving contradictory evidence” is enacted in s. 136 of the Criminal Code. However, s. 13 of the Charter does not just exempt these specific “offences,” and does not refer to them by their section number. Rather, it exempts “a prosecution” relating to these subjects. As a result, the exemptions to s. 13 can go beyond these two specific offences, provided the further offence involved in the “prosecution” relates to one of these two subjects. The offence of “obstruct justice,” enacted in s. 139, is far broader than the subject matter of “perjury” or “giving contradictory evidence.” Furthermore, there is no suggestion that Seecharran ever gave false testimony or contradictory evidence at his mother’s preliminary inquiry. The allegation is that he obstructed justice “by not providing material evidence to the Court.” This has nothing to do with the subject matter of “perjury” or “giving contradictory evidence.” Accordingly, the present case is not “a prosecution” relating to the subject matter of either of the two exemptions to s. 13.

37However, the Crown’s second argument is more fundamental. Ms. Tier submits that R. v. Schertzer et al., supra at paras. 26-44, has expanded these two exemptions to include a prosecution for obstruct justice in any case where the prior testimony constitutes the actus reus of the offence charged. The following passages from the Court of Appeal’s decision are relevant to this issue, per Benotto J.A. (Watt and Tulloch JJ.A. concurring):

The obstruction of justice count charged all of the accused with attempting to obstruct justice by “making false or misleading entries in their memo books, and/or by lying to the court in their testimony.” All of the appellants, except for Schertzer, testified at the Pang preliminary inquiry.

Appellants’ Position

The appellants submit that the trial judge erred when she told the jury they could use the preliminary inquiry testimony as a basis to convict on the attempt to obstruct justice charge. They argue that their testimony at Pang’s preliminary hearing was compelled and that they are therefore entitled to the protection of s. 13 of the Charter. Section 13 reads:

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.

The offence of attempting to obstruct justice is not listed as an exception to the right against self-crimination in s. 13. The essential elements of perjury and of attempting to obstruct justice are not the same.

The circumstances in which s. 13 was enacted and the legislative history of s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), confirm that the offences of perjury and giving contradictory evidence are the only exceptions to the exclusionary rule. Section 5 of the CEA is similar to, and predates, s. 13 of the Charter. In R. v. Chaperon (1979), 1979 3001 (ON CA), 52 C.C.C. (2d) 85 (Ont. C.A.), this court held the offence of giving contradictory evidence was not contemplated by s. 5 of the CEA in force at the time, which made an exception for prosecutions for perjury only. Section 13 was enacted three years after Chaperon and specifically included the offences of perjury and of giving contradictory evidence in the listed exceptions to the exclusionary rule. No other offence was added. In 1997, s. 5 of the CEA was amended to include the offence of giving contradictory evidence as the sole additional exception. Therefore, it cannot be said that the offence of attempting to obstruct justice is excluded from the operation of s. 13. The prior testimony cannot be a basis for the obstruction of justice charges, as the evidence was tendered in violation of the appellants’ Charter rights. …

Crown’s Position

The Crown submits that this ground of appeal cannot apply to Schertzer, as he did not testify at the preliminary inquiry. The other four appellants were also charged with perjury. (Miched was acquitted based on the wording of the indictment.) With respect to the other three appellants, their testimony at Pang’s preliminary inquiry was properly before the jury in relation to the perjury charges against them.

The instruction from the trial judge that their testimony could also be used with respect to the attempt to obstruct justice charges was harmless because they would have been convicted anyway—as was Schertzer—on the basis of their notes. As Schertzer did not perjure himself, his conviction for attempting to obstruct justice means that the jury concluded that his notes were false. Accordingly, since Schertzer’s notes were falsified in the same manner as those of the four appellants who did testify, their convictions of attempting to obstruct justice were inevitable on the basis of their false notes. The instruction requested by the appellants would have unnecessarily complicated the already lengthy jury instruction. The attempt to obstruct justice and the perjury counts all relied on the same factual finding: the accused searched Pang’s apartment without a warrant and covered this up.

In any event, an obstruct justice conviction may be founded on proof of perjury: R. v. Simon (1979), 1979 2997 (ON CA), 45 C.C.C. (2d) 510 (Ont. C.A.); R. v. Moore (1980), 1980 314 (BC CA), 52 C.C.C. (2d) 202 (B.C. C.A.); R. v. Staranchuk (1983), 1983 2402 (SK CA), 8 C.C.C. (3d) 150 (Sask. C.A.), aff’d 1985 73 (SCC), [1985] 1 S.C.R. 439.

Analysis of Issue No. 1

I would reject the appellants’ submissions for two reasons. First, s. 13 is not engaged because the testimony itself was the actus reus of the offence. Since the evidence was not truthful there was no quid pro quo as envisaged by the s. 13 jurisprudence. Second, even if section 13 did apply, the result would not have been affected because, based on the jury’s findings, the convictions were inevitable.

The Actus Reus/Quid Pro Quo

In Staranchuk, the Supreme Court held that compelled testimony forming the actus reus of crimes should be admissible in the prosecution of those crimes. The court endorsed, at pp. 439-40, the following passage from the reasons of the Court of Appeal for Saskatchewan:

We believe that a distinction must be drawn between those occasions where a person in the course of providing evidence under oath is required, when answering truthfully, to disclose the commission by him, previously, of an offence (in which event, generally speaking, that evidence cannot subsequently be used against him) and those occasions where a person makes false statements, while under oath, as a result of which he is charged with giving false evidence. In the latter case the very essence of the offence, and its actus reus, is the giving of the false testimony. In this case the Crown sought to place the two exhibits into evidence to prove the actus reus of the offences charged and, if that evidence was otherwise admissible, it ought to have been received.

In its reasons, the Court of Appeal for Saskatchewan stated further, at p. 153:

Even if … the accused gave “incriminating evidence”, within the meaning of s. 13 of the Charter… the section would still be of no avail to the accused … because his allegedly false evidence forms the very substance of the offence with which he is now charged.

That s. 13 is not available to an accused when false evidence forms the substance of the offence charged is consistent with the rationale for the s. 13 protection in the first place. This rationale has been referred to as the quid pro quo.

The quid pro quo is simple: the witness is offered protection in exchange for truthful incriminating testimony. This is not what happened here. The testimony of the four appellants at the Pang preliminary inquiry was not self-incriminatory. Rather, it was an attempt at self-exculpation. When it convicted them of perjury, the jury found that Pollard, Maodus, and Correia lied at the Pang preliminary inquiry. …

Section 13 reflects a quid pro quo where compelled testimony compels self-incrimination. In these circumstances, the state will not use the self-incriminating, compelled testimony to prosecute the offence revealed. The accused here were not compelled to give the testimony that was subsequently used to incriminate them for attempting to obstruct justice. They were not compelled to lie. In fact, they were required to do the opposite. There is no quid pro quo here.

The appellants’ interpretation of s. 13 that would render false testimony inadmissible on a charge of attempting to obstruct justice based on that false testimony would undermine the very purpose of the s. 13 protection. Simply put: a witness does not have immunity for lying under oath.

I do not agree with the appellants’ submission that attempting to obstruct justice does not fall within the exceptions to s. 13. The exceptions in s. 13 are not explicitly limited to the Criminal Code offences of perjury and giving contradictory evidence. “A prosecution for perjury” in the context of s. 13 refers to proceedings related to offences in the nature of giving a false statement under oath; it is not limited to any particular provision of the Criminal Code, R.S.C. 1985, c. C-46. The prosecution of a particularized charge of attempting to obstruct justice by committing perjury is such a proceeding. Not only is this interpretation supported by the use of the word “proceedings”, as opposed to “offences”, in s. 13, this interpretation is the most reasonable. Although the Court of Appeal for Saskatchewan in Staranchuk was not required to deal with this issue, it nonetheless condoned this more flexible interpretation when it commented, at p. 153, “…and even if it could be argued that this prosecution is not one, in its nature, for ‘perjury or for the giving of contradictory evidence’ within the meaning of s. 13 (another questionable proposition)”. The drafters of the Charter could not have intended to immunize a person who lies under oath from criminal prosecution for that lie.

A conviction was inevitable

Even if the trial judge had instructed the jury to ignore the preliminary inquiry testimony with respect to the attempt to obstruct justice count, in my view, the result would have been the same. The appellant Schertzer was not charged with perjury as he did not testify at the Pang preliminary inquiry. Yet he was convicted of attempting to obstruct justice. The jury must have convicted on the basis of his false notes. All of the appellants made the same assertion in their memo book notes that they waited until after the search warrant arrived to enter Pang’s apartment. It was this assertion that the Crown focused its prosecution on.

The trial judge did not err in leaving the appellants’ courtroom testimony as a possible mode of committing the attempt to obstruct justice offence. I would not give effect to this ground of appeal. [Italics of Benotto J.A. in the original; underlining added.]

38In my view, the Crown is reading Schertzer too broadly by submitting that it stands for the proposition that any prosecution for obstruct justice is exempted from s. 13, provided the prior testimony constitutes the actus reus of the offence. It must be remembered that four of the five accused in Schertzer were also charged with perjury and that the obstruct justice count was particularized as including “lying to the court in their testimony,” a fact which Benotto J.A. emphasized with italics. All five accused were charged with obstructing justice by “making false … entries in their memo books.” In other words, the case was in substance “a prosecution” for conduct in the nature of perjury, which is exempted from s. 13 by its own terms.

39There is a sentence in the Schertzer Reasons, as set out above, where Benotto J.A. stated “s. 13 is not engaged because the testimony itself was the actus reus of the offence.” If read in isolation, this one sentence could support the Crown’s position in the present case. However, Benotto J.A. immediately followed up in the next sentence by explaining, “Since the evidence was not truthful there was no quid pro quo as envisaged by the s. 13 jurisprudence” [emphasis added]. In the subsequent paragraphs of her Reasons, Benotto J.A. relied on R. v. Staranchuk (1983), 1983 2402 (SK CA), 8 C.C.C. (3d) 150 (Sask. C.A.), aff’d (1985) 1985 73 (SCC), 22 C.C.C. (3d) 512 (S.C.C.), and repeatedly stressed that it is “giving false evidence,” and it is “when false evidence forms the substance of the offence charged,” and it is when “attempting to obstruct justice [is] based on that false testimony,” that an offence is exempted from the operation of s. 13. I have underlined these repeated references to “false evidence” and “false testimony” in the passages set out above from the Court of Appeal’s Reasons. In my view, Schertzer and Staranchuk stand for the proposition that s. 13 exempts “a prosecution for perjury,” which broadly means, “proceedings related to offences in the nature of giving a false statement under oath; it is not limited to any particular provision of the Criminal Code” [emphasis added].

40In conclusion on this point, the obstruct justice proceedings against Seecharran do not involve an offence “in the nature of giving a false statement under oath.” Accordingly, these proceedings are not exempted from the operation of s. 13 of the Charter. I am satisfied that the Transcript of Seecharran’s testimony at his mother’s preliminary inquiry is not admissible at his trial for obstruct justice, due to the operation of s. 13 and the statutory privilege against self-incrimination. This is the same result as occurred in R. v. Chaperon (1979), 1979 3001 (ON CA), 52 C.C.C. (2d) 85 (Ont. C.A.), at a time when s. 13 and the present s. 5 of the Canada Evidence Act had not yet broadened the “perjury” exemption so as to include “giving contradictory evidence.” It is significant that the Court in Schertzer did not reverse its earlier decision in Chaperon. If those forms of obstruct justice that do not involve giving false evidence are to be exempted from the operation of s. 13 and s. 5, a further amendment, like the post-Chaperon amendment, would be required.

41In this regard, I should note that there is a line of authority holding that certain exclusionary rules of evidence (such as common law voluntariness) and certain provisions of the Charter (such as the s. 10(b) right to counsel), which relate to the taking of statements from the accused, have no application when an accused makes out of court utterances that constitute the actus reus of an offence. For example, when a detainee commits public mischief by making a false report, or makes statements that threaten death, or refuses a roadside breath test, these kinds of utterances are all admissible, regardless of any failure to prove common law voluntariness or any failure to comply with s. 10(b) of the Charter. See: R. v. Stapleton (1982), 1982 3331 (ON CA), 66 C.C.C. (2d) 231 (Ont. C.A.); R. v. Hanneson (1989), 1989 7159 (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.); R. v. Ha, 2010 ONCA 433; R. v. Rivera (2011), 2011 ONCA 225, 270 C.C.C. (3d) 469 (Ont. C.A.); R. v. Bleta, 2012 ONSC 1235.

42In my view, these cases have no application to the present case. None of these authorities involved s. 13 of the Charter, which expressly addresses the issue of which kinds of prosecutions are exempted from its operation. In these circumstances, it is not open to the judiciary to develop further exemptions under the common law or under s. 1 of the Charter. Furthermore, the present case does not involve the admissibility of an out of court utterance obtained in violation of a common law rule or Charter right.

43I should also note that the Crown’s inability to use the Transcript in this case as evidence in an obstruct justice prosecution, as well as the Crown’s understandable reluctance to repeatedly adjourn the preliminary inquiry and rely on the powers in s. 545 of the Criminal Code, does not mean that it is without a remedy. In this Court, prosecutions for contempt in facie are routinely relied on when witnesses refuse to be sworn or affirmed, or refuse to answer questions after being sworn or affirmed. In such a case, the presiding judge has witnessed the contempt in facie firsthand and the accused must then “show cause.” The Ontario Court of Justice has the same jurisdiction as this Court to hear and decide a case involving contempt in facie, including at a preliminary inquiry, provided the alleged contemnor is accorded procedural fairness. See: R. v. B.K. (1995), 1995 45 (SCC), 102 C.C.C. (3d) 18 (S.C.C.); R. v. Arradi (2003), 2003 SCC 23, 173 C.C.C. (3d) 1 (S.C.C.); R. v. Dunning (1979), 1979 2885 (ON CA), 50 C.C.C. (2d) 296 (Ont. C.A.); R. v. Fields (1986), 1986 2639 (ON CA), 28 C.C.C. (3d) 353 (S.C.C.); R. v. Vermette (1987), 1987 51 (SCC), 32 C.C.C. (3d) 519 (S.C.C.). Earlier authorities in Alberta had held that a Provincial Court Judge presiding at a preliminary inquiry could only proceed pursuant to s. 545, and not pursuant to common law contempt powers, where a witness had refused to be sworn or had refused to answer questions. See: R. v. Bubley (1976), 1976 ALTASCAD 138, 32 C.C.C. (2d) 79 (Alta. C.A.); R. v. McKenzie (1978), 1978 ALTASCAD 185, 41 C.C.C. (2d) 394 (Alta. C.A.). However, these authorities were effectively reversed in R. v. Lacroix (1987), 1987 83 (SCC), 34 C.C.C. (3d) 94 (S.C.C.), revsg. (1984) 15 C.C.C. (2d) 265 (Que. C.A.). See also: R. v. Poulin (1998), 1998 12907 (QC CA), 127 C.C.C. (3d) 115 (Que. C.A.). In any event, B.K. has now authoritatively held that the power to cite for contempt in facie exists at a preliminary inquiry.

D. CONCLUSION

44For the reasons set out above, the Application to exclude the Transcript of Seecharran’s testimony given at his mother’s preliminary inquiry is granted, pursuant to s. 13 of the Charter. The Application to exclude the same evidence pursuant to s. 7 of the Charter is denied.

M.A. Code J.