CEA s. 5 – Compels an Answer but Gives Use Immunity -
Witness invokes s. 5 when apprehend a risk of self-incrimination
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Judge has limited role in policing the use of this section (after Noël has limited role in making sure it is invoked in good faith but by and large the statute and not the judge confers the immunity)
History at Common Law
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At common law, when testifying the accused may refuse to answer a question on the principle that is may self-incriminate them.
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S.5 of the CEA: takes away the common law privilege of refusing to answer, compels the witness to answer, and then enacts a statutory protection – use immunity
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Those answers may not be used against you in any subsequent prosecution.
CEA s. 5
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5(1) abrogates CL rule and 5(2) sets out the use immunity:
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S. 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.
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S. 5(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 or for the giving of contradictory evidence.
Charter s. 13 (Henry) – Incriminating Evidence Shall Not be used in Other Proceedings
Section 13: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence
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s. 13 does not require the witness to invoke the right is activated as soon as witness testifies and the later charged with an offence
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So like s. 5 offers “use immunity” but ex post facto
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Also does not protect you in cases of perjury
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So sections activated differently but once activated have same effect and s. 13 almost entirely eclipses s. 5 of the CEA
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If clearly about incriminating then s. 13 sufficient
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But may want to refer to s. 5 out of an abundance of caution
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Noel: explains the theory behind s. 13 described as quid pro quo i.e. in exchange for compelling you to answer, we will give you a use immunity
R. v. Dubois -
Facts: Accused admitted at 1st trial that he killed the deceased but says that was self-defence self-defence plea rejected and he was convicted. On appeal some other point found to have been a misdirection so goes to 2nd trial where Dubois chooses not to take the stand and Crown wants to use prior testimony.
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Held: on the plain reading of s. 13 this would violate what s. 13 directed at and also contrary to s. 11(c) – cannot use testimony from first trial in second trial
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So “proceedings” include 2nd trials (that are essentially the same trial) and thus is the source of all the problems with s. 13
R. v. Mannion -
Facts: Rape charge. Accused testified at first trial and later decides to testify at his second trial. However, his second testimony was different from his original testimony. Crown wanted to cross-examine him on this issue.
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Held: You cannot cross-examine the accused on his earlier testimony because it would be using his original testimony to incriminate the accused.
R. v. Kuldip (1990) -
Facts: Accused charged w/ failure to stop at a scene of an accident defence is that immediately left scene to go to report the accident at the police station convicted and then on appeal conviction quashed and goes to 2nd trial on same charge.
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Issue: At 1st trial, Kuldip testifies about Const. Brown when he relates how he went to station immediately after the accident but find out that Brown was not working at this time and so at 2nd trial Kuldip does not say that Const Brown was at station when relating his actions and so Crown wants to impeach this as an inconsistent statement Defence argues s. 13 but court disagrees
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Held: Made a distinction between cross-examination:
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Intended to incriminate (goes to the heart of their defence) – impermissible as in Mannion
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Intended to question credibility – then permissible
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Only prohibits incriminatory uses of past testimony if the purpose is simply to impeach (to show an inconsistency) then this is permissible cross-examine on credibility.
But after this case, questions on the difference between impeaching (attacking credibility) and incriminating:
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Addressed in Noel – 1st case where both s. 5 and s. 13 at play together
R. v. Noel -
Facts: Accused charged w/ and found guilty of murder had previously testified at his brother’s trial where invoked s. 5 of CEA and admitted to being an accomplice to the murder. Later during his own trial for murder, clear that can not use these statements for substantive content – but issue over use to impeach credibility. Noel in own trial as his defence argues that not an accomplice, had nothing to do with murder and only helped to dispose of the body. So crown faced with inconsistent statement and crown wants to follow Kuldip to impeach – BUT statement is very incriminating and asking jury to ignore this and use it anyways so court reinterprets Kuldip
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Held: That Kuldip only applies for circumstances in which there is no realistic danger that the prior testimony will be used to incriminate the accused
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But differentiating between two uses will be tenuous (in this case too intermingled) – but essentially where prior testimony is impeaching but also tends in some way to incriminate then s. 13 will not permit Crown to use the prior testimony
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This has the effect of rolling Kuldip back to cover almost nothing – so fact that crown trying to use to impeach will not erode s. 13 unless there is “no possibility … to draw inference of guilt” and will only have evidence used in “exceptional circumstances” – likely where the point you are impeaching on is pretty trivial
Need to distinguish between Dubois, Mannion and Kuldip where the accused voluntarily testified and Noel where the accused was compelled to testify.
Summary of Henry
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Left Dubois in tact – ruled that it was in fact a case of compelled testimony
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Basically overruled Mannion
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Left the result of Kuldip, but got rid of the distinction
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Left Noel in tact
R. v. Henry (2005) (SCC) – Leading Authority -
Facts: Accused was convicted of murder. The testimony given by the accused at his first trial varied significantly from his testimony at his second trial. The Crown cross-examined the accused extensively on the inconsistencies between the two testimonies. The defence tried to appeal to s. 13 for protection
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BCCA: Section 13 could not be interpreted so as to create a constitutional right to swear falsely in one’s own defence – doesn’t give you the right to make up a new story when your first one fails.
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Held: Appeal dismissed.
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The consistent theme of s. 13 is that the purpose is to protect individuals from being indirectly compelled to incriminate themselves (asserted in Dubois, Kuldip, Noel)
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The court addressed a number of previous court decisions:
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Dubois: an attempt to compel testimony at a retrial
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Held: concluded that the reference in s. 13 to “other proceedings” includes a retrial on the same indictment and therefore extended protection to them.
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UPHELD: The rationale for extending s. 13 to a retrial is because when a new trial is ordered, the accused is entitled not to testify at all – allowing the Crown to file the testimony given by the accused at a previous trial would be indirectly compelling the accused to testify
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Mannion: involved the use of prior voluntary testimony of the accused at the retrial
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Held: Followed Dubois in extending s. 13 protection to a retrial
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OVERTURNED: Distinguished from Dubois where the earlier testimony had been compelled and the Crown sought to pre-empt the right of the accused not to testify. However, in Mannion, the accused freely testified at both his first and second trial - therefore there was no compulsion.
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S. 13 is not available to an accused who freely chooses to testify at his or her retrial on the same indictment
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“Accused persons who testify at their first trial and then volunteer inconsistent testimony at the retrial on the same charge are in no need of protection from being indirectly compelled to incriminate themselves and s. 13 protection should not be available to them.”
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Kuldip: involved the use of prior voluntary testimony of the accused at the retrial
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Held: allowed cross-examination of the accused on the inconsistent testimony he volunteered at his first trial.
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UPHELD: Cross-examination of the accused on inconsistent testimony should be allowed.
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HOWEVER: Get rid of the distinction between compelling a witness with intent to incriminate and intent to impeach credibility – if the contradiction reasonably gives rise to an inference of guilt, s. 13 does not preclude the trier of fact from drawing the common sense inference.
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Noel: attempts by the Crown to use the compelled testimony of a witness at an earlier trial who had become the accused at the later trial.
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Held: Earlier compelled testimony as a witness is not admissible at a later trial as an accused – violated the protection of s. 5(2).
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UPHELD: The witness was compelled by s. 5(1) of the CEA to testify as a witness and consequently invoked the protection of s. 5(2) – that this evidence shall not be used against them for any purpose, including impeachment of credibility.
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FURTHER, under CEA s. 5 and Charter s. 13, prior compelled evidence should be inadmissible against the accused except in a prosecution for perjury or for giving contradictory evidence.
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Overall comments: When viewing cases of this nature, it’s important to return to the core theme of Dubois: the purpose of s. 13, when viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves.
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To the extent that other cases are inconsistent with the rationale of compulsion, they should no longer be regarded as authoritative.
Summary of s. 13 After Henry
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Section 13 only protects against the use of prior compelled testimony, and not against the use of testimony previously volunteered.
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Where an accused was earlier compelled to testify when they were not an accused (triggering s. 5 protection), such earlier testimony cannot be used to incriminate or to attack credibility (getting rid of the Kuldip distinction).
Derivative Use Immunity -
S. 5 and 13 are concerned with “use immunity” but what about derivative use?
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Eg. Ben testifies at Trial that knew the accused had committed an armed robbery because I buried the gun at my house and so police go to look for the gun and find it
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At Ben’s prosecution for accessory clearly prior statement barred because of s. 13 but what about the gun?
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S. 5 and 13 do not provide derivative use immunity
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However the courts have said that section 7 (with a bit of 11(d)) provides a derivative use immunity
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So if state trying to use evidence against the accused that it would not have found but for earlier testimony at a judicial proceeding, s 7 provides this immunity (i.e. principle against self-incrimination and fairness of trial) the crown would then have to show on balance of probabilities that the evidence would have been discovered anyways
Drawing Adverse Inference
Can an adverse inference be drawn from refusing to speak and then refusing to testify?
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Before Noble, the law was that an adverse inference could be drawn
CEA S. 4(6)
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Neither the judge nor the prosecutor can make a comment on the failure of the accused to testify (but open for the defence to do so).
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BUT it is the judge’s responsibility to instruct the jury NOT to put the accused silence on the scales!
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This is a fundamental flaw in the law
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Cannot look into jury’s reasoning or speculate on their reasoning and so no way to test the effects of this flaw (comments by Sopinka J in Noble)
R. v. Noble (1997) (SCC) -
Facts: Accused identified in apartment block parking lot – conviction based on apartment manager’s testimony on the ID and on accused’s silence.
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Held: It is fundamental that the accused’s silence not be used against him goes against fundamental principle that not a competent and compellable witness for the Crown (i.e. fundamental principle regarding self-incrimination and conscription of E), and undermines the right to silence and presumption of innocence.
Fundamental then that accused silence not be granted evidential weight s. 7,11 (c) & (d), 13!!
Exception to Rights of the Accused: Alibi
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The Crown can cross-examine the accused on his or her alibi narrow exception to the impermissibility of using silence as evidence against accused – easy to fabricate alibi and diversion from main inquiry.
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Also where alibi defence not disclosed at a sufficiently early time to permit Crown to investigate, the trier of fact may draw and adverse inference from the accused’s pre-trial silence (exception to accused’s right to silence and drawing adverse inference regarding credibility based on failure to testify at trial)
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These exceptions dealt with via s. 7 and PFJ balancing as seen to be ok by court
Note on Corporations: Miller
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Corporations do not benefit from this privilege and employees of the corporation can be compelled to testify against the corporation.
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