Section 13 – Protection against self-incrimination

Provision

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.

Similar provisions

This provision should be read in conjunction with paragraph 11(c), which protects a person who is charged with an offence from being compelled to testify against him or herself, and section 7, which more broadly protects against self-incrimination during the investigative and pre-trial period. It is well-established that the principles of fundamental justice include protection against self-incrimination. Therefore, where section 13 does not apply, section 7 offers residual protection against self-incrimination when a person’s life, liberty or security interests are at stake (R. v. S.(R.J.), [1995] 1 S.C.R. 451 at 512; R. v. White, [1999] 2 S.C.R. 417 at paragraph 40; R. v. Jarvis, [2002] 3 S.C.R. 757 at paragraph 67; Application under section 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 at paragraphs 77-79).

Similar provisions are found in the Canadian Bill of Rights (paragraph 2(d)) and the Canada Evidence Act (subsection 5(2)). The International Covenant on Civil and Political Rights, which is binding on Canada, contains a guarantee that an accused person will “not […] be compelled to testify against himself or to confess guilt” (article 14(3)(g)). The American Convention on Human Rights (article 8(2)(g)), which is not binding on Canada, also contains a guarantee against self-incrimination. The Constitution of the United States of America (the Fifth Amendment) provides protection against being compelled to provide incriminating evidence. This protection differs from section 13, which protects individuals from incriminating themselves through a rule against subsequent use.

Purpose

The right against self-incrimination is one of the cornerstones of Canadian criminal law (R. v. Henry, [2005] 3 S.C.R. 609 at paragraph 2). The purpose of section 13 is to protect individuals from being indirectly compelled to incriminate themselves (Henry, supra at paragraph 22; Dubois v. The Queen, [1985] 2 S.C.R. 350 at 358).

More specifically, the purpose of the right is to foster the truth-seeking objectives of the justice system by guaranteeing immunity to a witness in respect of any self-incriminating testimony that the witness might be compelled to give. By guaranteeing that such self-incriminatory statements will not be used against a person in other proceedings, the right assuages witnesses’ fears that their testimony may expose them to criminal jeopardy. The State, when compelling a witness to testify in a proceeding, thus offers the witness a quid pro quo: in exchange for full and frank testimony, the State will not use any incriminating testimony so given to incriminate the witness in a subsequent proceeding (Henry, supra at paragraph 22; R. v. Nedelcu, 2012 SCC 59 at paragraph 7).

Analysis

The protection offered by section 13 always involves two distinct procedures: one where compelled testimony is given and another, subsequently, where the State seeks to use the prior testimony to incriminate an accused.

As a general rule, except for an accused in a criminal proceeding, all persons possessing relevant evidence can be compelled to testify in proceedings of all manner, both civil and criminal (see e.g., section 5 of the Canada Evidence Act). When compellable, witnesses will be protected both against self-incrimination under section 13 (subsequent use immunity), and against the use of evidence derived from that testimony under section 7 (derivative use immunity) in any subsequent criminal proceedings that may be brought against them (S.(R.J.), supra; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97).

Courts have taken a purposive approach to determining when an accused in a criminal proceeding should benefit from the protection of section 13 in relation to testimony given in a prior proceeding. Courts will question whether excluding the testimony in the criminal proceeding would further the purpose of section 13 (which is to protect against compelled self-incrimination) (Henry, supra at paragraphs 41, 60). Applying the purposive approach, section 13 only protects against the use to incriminate of prior compelled testimony and not against the use of testimony previously voluntarily supplied. The quid pro quo is absent where the law does not and cannot compel the testimony. 

“Compelled” testimony includes “compellable” for section 13 purposes (Henry, supra at paragraph 34, Nedelcu, supra at paragraph 1) so that generally, testimony is only “voluntary” when it is provided by a person who is the accused in a criminal proceeding in which it is given. A person need not have felt compelled, nor have been subpoenaed to be considered “compelled”, but will benefit from section 13 protection if he or she was compellable in law (Nedelcu, supra at paragraphs 1, 109).

Therefore, while section 13 is available to an accused who previously testified in another person’s trial (R. v. Noël, [2002] 3 S.C.R. 433), it does not protect an accused who previously testified at his or her own trial on the same indictment from being cross-examined on the prior testimony at his re-trial, if he chooses to testify (Henry, supra at paragraphs 43, 47). If a contradiction (in the voluntary testimony given at the accused’s two trials) reasonably gives rise to an inference of guilt, section 13 does not preclude the trier of fact from drawing that common sense inference (Henry, supra at paragraph 48).

Section 13 is not contravened where the prior testimonial evidence constitutes the very actus reus of the later offence (R. v. Staranchuk, [1985] 1 S.C.R. 439; R. v. Schertzer, 2015 ONCA 259 at paragraphs 34-42). This exception has been interpreted as including more than the Criminal Code offences of perjury and giving contradictory evidence. In Staranchuk, the accused was charged with giving false evidence pursuant to the Bankruptcy Act. In Schertzer, the accused police officers were charged with obstruction of justice on the basis of false testimony given at a preliminary hearing. In both cases, section 13 did not apply due to the nature of the offences.

Where a witness in a trial takes responsibility for the crime in such a way that would absolve the accused of responsibility, Crown counsel should rarely be permitted to cross-examine on a witness’s knowledge of section 13. The probative value of a witness’s knowledge of section 13 will generally be outweighed by its prejudicial effects (R. v. Jabarianha, [2001] 3 S.C.R. 430).

1. "Any other proceedings"

The Supreme Court has indicated that “any other proceedings” means that section 13 is not restricted only to the use of evidence at criminal proceedings (Dubois, supra at 377). However, the phrase "any other proceedings", referring to the second proceeding where the Crown seeks to adduce the prior testimony, has been held to mean a proceeding analogous to those contemplated in paragraphs 11(c) and (d). The use of "incriminating" and "incriminate" in section 13 denotes penal consequences, suggesting that the proceedings must at least be quasi-criminal or otherwise of a nature in which an individual is exposed to true penal consequences (Knutson v. Saskatchewan Registered Nurses Association (1990), 75 D.L.R. (4th) 723 (Sask. C.A.)).

In subsequent criminal proceedings, an accused is protected against the use of incriminating evidence that he or she has given under compulsion at prior civil or administrative proceedings (Donald v. Law Society of British Columbia (1983), 2 D.L.R. (4th) 385 (B.C.C.A.), leave to appeal to SCC denied, [1984] S.C.C.A No. 284). Testimony given at a voir dire contemplated in section 276.2 of the Criminal Code is also protected by section 13 (R. v. Darrach, [2000] 2 S.C.R. 443 at paragraph 66), as is testimony given at a commission of inquiry (Consortium Development (Clearwater Ltd.) v. Sarnia (City), [1998] 3 S.C.R. 3 at paragraph 37; Canada (A.G.) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; Starr v. Houlden, [1990] 1 S.C.R. 1366), and evidence given in discovery proceedings as a defendant in a civil action (Nedelcu, supra at paragraph 1).

2. "Incriminating evidence"

Section 13 does not protect against the use of all compelled information. It protects only against the use of compelled evidence to incriminate (Nedelcu, supra at paragraph 9). Evidence is “incriminating” if at the subsequent proceeding it is used “to prove guilt, i.e., to prove or assist in proving one or more of the essential elements of the offence” (Nedelcu, supra at paragraph 9).

The time to determine whether the testimony given at the prior proceeding is “incriminating evidence” is when the Crown seeks to use it at the subsequent hearing (Nedelcu, supra at paragraph 16). The evidence or testimony need not have been incriminating at the first proceeding.

Henry, supra, does away with the traditional importance placed on the projected use of the prior testimony (i.e., evidence introduced in the subsequent proceeding for the purpose of impeaching the credibility of the witness, as opposed to for the purpose of incriminating the witness). In that sense, the principles established in Henry supersede those in R. v. Mannion, [1986] 2 S.C.R. 272; R. v. Kuldip, [1990] 3 S.C.R. 618; Noël, supra; and R. v. Allen, [2003] 1 S.C.R. 223. Incriminating testimony generally cannot be used for the purpose of impeaching credibility due to the risk that whatever instructions a trial judge may give, it will be used to incriminate.

However, Nedelcu makes an important clarification to the scope of Henry in this respect: prior compelled testimony that is not incriminating may be used by the Crown. A trial judge will have to determine whether prior testimony sought to be used by the Crown is incriminating or not, and only testimony that is not incriminating may be used (Nedelcu, supra at paragraph 37). This result in Nedelcu thus qualifies the ruling of the Court in Henry where it seemed to hold that any use of prior compelled testimony by the Crown is prohibited by section 13, presumably since the Crown’s use is ultimately intended to prove the guilt of the accused (Henry, supra at paragraph 50).

Any testimonial evidence by the accused from a prior proceeding that the Crown tenders as part of its case-in-chief (as opposed to on cross-examination) against an accused is, for the purpose of section 13, incriminating evidence (Dubois, supra at 364). Even where an accused has given testimony at his prior trial (which by definition will have been voluntary), the Crown remains prohibited from filing into evidence this testimony at the accused’s subsequent trial for the same offence where the accused now chooses to remain silent. The reasoning behind this exception is that if the Crown were permitted to file the testimony as evidence, it would indirectly compel the accused to testify at the retrial, which is directly prohibited by paragraph 11(c) of the Charter (Dubois, supra at 365-366; Henry, supra at paragraph 39).

“Incriminating evidence” does not include documentary evidence produced in prior proceedings, even though such evidence may be incriminating (Thomson Newspapers Ltd v. Canada (Director of investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at paragraph 270).

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