R. v. Noël (C.), (2002) 295 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 295 N.R. 1 (SCC);2002 SCC 67

R. v. Noël (C.) (2002), 295 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2002] N.R. TBEd. OC.047

Camille Noël (appellant) v. Her Majesty the Queen (respondent)

(28734; 2002 SCC 67; 2002 CSC 67)

Indexed As: R. v. Noël (C.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

October 31, 2002.

Summary:

Noël and his brother were each charged with murder. At the brother's trial, Noël requested and obtained the protection of s. 5 of the Canada Evidence Act. During Noël's testimony, he admitted to being an accom­plice to the murder. The brother was acquitted. At Noël's murder trial, he repudi­ated the incriminating statements made at the brother's trial. The trial judge permitted the Crown to cross-examine Noël on the prior statements for purpose of challenging his credibility. Noël was convicted by jury. Noël appealed.

The Quebec Court of Appeal, Fish, J.A., dissenting, dismissed the appeal, holding, inter alia, that the trial judge did not err in admitting the incriminating statements, the cross-examination of Noël was properly con­ducted and was exclusively aimed at dis­crediting Noël, and while imperfect, the jury charge was in substantial compliance with the principles in R. v. Lifchus and subse­quent decisions. Noël appealed.

The Supreme Court of Canada, L'Heureux-Dubé, J., dissenting, allowed the appeal, set aside the decision of the Court of Appeal and ordered a new trial.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The Supreme Court of Canada stated that the s. 13 Charter right to be protected against self-incrimination was to be interpreted as follows: "When an accused testifies at trial, he cannot be cross-examined on the basis of a prior testimony unless the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incrimi­nate him. The danger of incrimination will vary with the nature of the prior evidence and the circumstances of the case including the efficacy of an adequate instruction to the jury. When, as here, the prior evidence was highly incriminating, no limiting in­struc­tion to the jury could overcome the danger of incrimination and the cross-examination should not be permitted." - See paragraph 4.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The Supreme Court of Canada stated that "... neither under s. 5 of the Canada Evidence Act nor under [s. 13 of] the Charter is there any reason ... to draw a distinction between evidence given under compulsion and evidence given voluntarily, even when the evidence is voluntarily given by an accused who waives his non-compellability and testifies in his own trial. This is made clear by the language of s. 5, and by the rationale behind both provisions. When the witness is on the stand, whether under subpoena or not, the witness is required to answer all relevant questions put to him. He may only object to answering any question that may incriminate him and seek protection. The bargain is engaged when the jeopardy arises. The protection is given in exchange for the answer. It then becomes apparent that in keeping with the quid pro quo which lies at the heart of s. 13, the state should not be permitted to introduce as part of its case an incriminating statement made by the accused in another proceed­ing, even if that 'other proceeding' was his previous trial for the same offence ... nor should the state be permitted to introduce, in cross-examination, for the purpose of 'incriminating' the accused, an innocuous statement that the accused made while a witness in another proceeding" - See para­graph 25.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The Supreme Court of Canada, in discussing the s. 13 Charter right to protection against self-incrimi­nation and s. 5 of the Canada Evidence Act, stated that "When the prior evidence was not on its face incriminating ... direct use is still prohibited, since the purpose can only be to incriminate, but cross-exam­ination may not be ... But when the prior evidence was incriminating at the time it was given, in that, for instance, it con­tained a damaging admission linking the witness to a criminal activity, its use in subsequent proceedings must be totally prohibited, even if it is tendered for the apparent limited purpose of testing credi­bility, unless there is no realistic danger of incrimination. This is consistent with the scope of s. 5 of the Canada Evidence Act as it had been interpreted prior to the advent of the Charter, and it is in my view consistent with the quid pro quo upon which persons are expected to give their full and frank evidence under oath in judicial proceedings even when such evi­dence contains statements that are damag­ing to the witness's interest." - See para­graph 30.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The Supreme Court of Canada stated that when an accused is cross-examined by reference to incriminat­ing evidence that he gave in a judicial proceeding, whether the protection of s. 5 of the Canada Evidence Act was claimed or not, the accused was protected by s. 13 of the Charter - Where the evidence was incriminating at the time it was given, such that the witness could have been granted s. 5 protection, but did not know to ask, the focus should shift to the use that the Crown proposes to make of that evidence -The Crown was precluded from introduc­ing such evidence as part of its case in chief - Whether the Crown could confront the accused with his prior incriminating testimony in cross-examination, purport­edly to test credibility, depended on whether there was a real danger, despite any warning given to the jury, that the protected evidence might be used to in­criminate the accused - This was so in part because of the quid pro quo - No risk should attach to being compelled to give incriminating evidence, save to answer to perjury or similar charges - If the prior testimony was innocuous at the time it was given, cross-examination should be per­mitted - See paragraphs 44 to 47.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - Section 13 of the Charter granted every witness the right not to have any "incriminating evidence so given used to incriminate that witness in any other proceedings " - The Supreme Court of Canada stated that there was "... no need to adhere to a strict 'double incrimination test' in order to trigger the s. 13 protec­tion. ... The evidence is not required to have been obviously incriminating at the time it was given to prevent the direct use by the Crown to incriminate the accused in his subsequent trial. In other words, the protection is universal when the subsequent use is to incriminate. But when the prior testimony was incriminating and the Crown ... purports to use that prior testi­mony apparently for the sole purpose of testing the credibility of the accused, now a witness in his own trial, the protection of s. 13 is activated and the cross-examination will likely be prohibited. The key question is whether the evidence is used to incrimi­nate." - See paragraph 48.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - General - The Supreme Court of Canada stated that the arguments advanced in R. v. Kuldip (S.C.C.) to allow an accused who testified to be confronted with prior inconsistent statements made in another judicial proceeding could stand provided that there was no risk that such cross-examination could amount to a repu­diation of the quid pro quo upon which the accused gave evidence in the first place - If there was any indication that the Crown was using the prior evidence to incriminate the accused directly or indirectly, or that it contained, subjectively or objectively, an element of self-incrimination, s. 13 of the Charter was activated and all reference to the testimony was prohibited, even for the sole purpose of challenging the accused's credibility - Kuldip was limited to cases where the reference to the prior evidence was exclusively for impeachment purposes and carried no other risk of incrimination -Cross-examination would be permitted where there was no possibility that the jury could use the prior testimony to draw an inference of guilt, except for the limited extent that a finding that the accused had been untruthful under oath could be dam­aging to his defence - See paragraph 54.

Civil Rights - Topic 4468

Protection against self-incrimination - Use of incriminating evidence in other proceed­ings - To discredit witnesses testimony - Noël and his brother were each charged with murder - At the brother's trial, Noël requested and obtained the protection of s. 5 of the Canada Evidence Act - Noël admitted to being an accomplice to the murder - At Noël's trial, he repudiated the incriminating statements - Noël was con­victed - Noël appealed, asserting that the Crown should not have been permitted to cross-examine him on his awareness of the protection offered by s. 5 of the Canada Evidence Act and s. 13 of the Charter - The Supreme Court of Canada agreed - In the rare circumstances where it was per­missible to cross-examine an accused on the basis of his prior testimony, the cross-examination was only to be directed at credibility - See paragraph 60.

Criminal Law - Topic 59

General principles - Protection against self-incrimination - Application of protection of federal Evidence Act - [See second and third Civil Rights - Topic 4461 and Civil Rights - Topic 4468 ].

Criminal Law - Topic 59

General principles - Protection against self-incrimination - Application of protection of federal Evidence Act - Section 5(2) of the Canada Evidence Act stated that when a witness "objects to answer on the ground that his answer may tend criminate him" then "the answer so given shall not be used or admissible in evidence against him" in subsequent criminal proceedings, save in prosecutions for perjury or for the giving of contradictory evidence - The Supreme Court of Canada stated that s. 5(2) made no exception to the admissibility of incrim­inatory evidence when a witness invokes the statutory protection - The State was not permitted to use such evidence for any purpose, whether to incriminate directly or in cross-examination - See paragraphs 32 and 33.

Criminal Law - Topic 59

General principles - Protection against self-incrimination - Application of protection of federal Evidence Act - The Supreme Court of Canada stated that "the trial judge before whom s. 5 [of the Canada Evidence Act] is first invoked has a duty to ensure that the witness is properly placing himself within the ambit of the section: the answer to which he objects must be one that 'but for this Act' he would have been entitled at common law to refuse to answer on the ground that it could tend to incriminate him. Beyond this limited function, how­ever, the trial judge must simply take notice that the statutory protection has been claimed. It is not surprising that this issue has not been the subject of much judicial consideration. For one thing, s. 5 of the Canada Evidence Act is rarely in­voked since the vast majority of wit­nesses are not represented by counsel when they testify, and are likely unaware of the exist­ence of the section. Moreover, the trial judge before whom the protection of s. 5 is sought has little incentive to explore whether it is properly claimed since, in any event, the witness is statutorily bound to answer the question." - See paragraph 41.

Criminal Law - Topic 5435

Evidence and witnesses - Cross-examin­ation of accused - Credibility - [See Civil Rights - Topic 4468 ].

Cases Noticed:

R. v. Mannion, [1986] 2 S.C.R. 272; 69 N.R. 189; 75 A.R. 16, refd to. [paras. 1, 98].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340, consd. [paras. 1, 64].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [paras. 13, 149].

Malloy v. Hogan (1964), 378 U.S. 1, refd to. [para. 21].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [paras. 23, 96].

R. v. W.D.B. (1987), 59 Sask.R. 220; 38 C.C.C.(3d) 12 (C.A.), refd to. [paras. 28, 102].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 29].

R. v. Kuldip (1988), 24 O.A.C. 393; 40 C.C.C.(3d) 11 (C.A.), apprvd. [paras. 31, 81].

R. v. Wilmot, [1940] 3 D.L.R. 358; [1940] 2 W.W.R. 401 (Alta. C.A.), apprvd. [paras. 33, 77].

R. v. Côté (1979), 50 C.C.C.(2d) 564 (Que. C.A.), apprvd. [para. 33].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 35].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, refd to. [para. 35].

R. v. Tass (1946), 86 C.C.C. 97 (Man. C.A.), refd to. [para. 35].

Klein v. Bell, [1955] S.C.R. 309, refd to. [para. 37].

R. v. Mottola, [1959] O.R. 520 (C.A.), refd to. [para. 38].

Accident Insurance Mutual Holdings Ltd. v. McFadden (1993), 31 N.S.W.L.R. 412 (C.A.), refd to. [paras. 39, 120].

Den Norske Bank A.S.A. v. Antonatos, [1999] Q.B. 271 (C.A.), refd to. [para. 39].

Carter v. United States (1996), 684 A.2d 331 (D.C.), refd to. [para. 39].

Hoffman v. United States (1951), 341 U.S. 479, refd to. [paras. 39, 125].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [paras. 49, 91].

R. v. Cinous (J.) (2002), 285 N.R. 1 (S.C.C.), refd to. [para. 56].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [paras. 56, 111].

R. v. Monette, [1956] S.C.R. 400, refd to. [para. 56].

Pearse v. Pearse (1846), 1 De G. & Sm. 12; 63 E.R. 950, refd to. [para. 58].

R. v. Jabarianha (A.) (2001), 277 N.R. 388; 158 B.C.A.C. 82; 258 W.A.C. 82 (S.C.C.), appld. [paras. 60, 153].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [paras. 61, 85].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [paras. 61, 149].

R. v. Hendershott (1895), 26 O.R. 678 (H.C.), refd to. [para. 76].

R. v. Hammond (1898), 29 O.R. 211 (Div. Ct.), refd to. [para. 76].

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321, refd to. [para. 83].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 83].

R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81, refd to. [para. 84].

R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), refd to. [para. 93].

Miller v. White (1889), 16 S.C.R. 445, refd to. [para. 94].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 94].

R. v. Livermore (C.), [1995] 4 S.C.R. 123; 189 N.R. 126; 87 O.A.C. 81, refd to. [para. 94].

Johnstone v. Law Society of British Col­umbia, [1987] 5 W.W.R. 637 (B.C.C.A.), refd to. [para. 103].

Blunt v. Park Lane Hotel Ltd., [1942] 2 K.B. 253 (C.A.), refd to. [para. 113].

R. v. Hertfordshire County Council; Ex parte Green Environmental Industries Ltd., [2000] 1 All E.R. 773 (H.L.), refd to. [para. 113].

R. v. Martin and White, [1998] 2 Cr. App. R. 385 (C.A.), refd to. [para. 116].

R. v. Guariglia, [2000] V.S.C. 13, refd to. [para. 121].

New Jersey v. Portash (1978), 440 U.S. 450, refd to. [para. 127].

Photo Production Ltd. v. Securicor Trans­port Ltd., [1980] 1 All E.R. 556 (H.L.), refd to. [para. 135].

R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 222 N.R. 365, refd to. [para. 149].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 149].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119, refd to. [para. 149].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 5 [para. 16].

Canadian Charter of Rights and Freedoms, 1982, sect. 13 [para. 16].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 34, 3rd Sess., 7th Parl. (March 3, 1983), pp. 1695, 1697 [para. 74].

Canada, Law Reform Commission, Report No. 16, The Jury (1982), pp. 5, 6 [para. 89].

Canada, Law Reform Commission, The Jury in Criminal Trials, Working Paper No. 27 (1980), pp. 2, 6 [para. 89].

Cross on Evidence (6th Aust. Ed. 2000), p. 683 [para. 118].

Delisle, Ronald Joseph, and Stuart, Don, Evidence Principles and Problems (6th Ed. 2001), p. 337 [para. 110].

Keane, Adrian, The Modern Law of Evi­dence (5th Ed. 2000), pp. 564, 565, 566 [para. 115].

Maczko, Frank, Charter of Rights: Section 13 (1982), U.B.C. L. Rev. (Charter Ed.) 213, p. 219 [para. 80].

Mathieson, Donald L., Evidence (6th N.Z. Ed. 1997), pp. 279, 283, 284, 285 [para. 123].

McCormick on Evidence (5th Ed. 1999), vol. 1, pp. 450 to 518 [para. 21]; 454 to 458 [para. 124]; 472 [para. 39]; 513 [para. 126].

Paciocco, David M., Evidence About Guilt: Balancing the Rights of the Indi­vidual and Society in Matters of Truth and Proof (2001), 80 Can. Bar Rev. 433, p. 436 [para. 83].

Peck, Richard C.C., The Adversarial Sys­tem: A Qualified Search for the Truth (2001), 80 Can. Bar Rev. 456, generally [paras. 83, 86].

Counsel:

Josée Ferrari, for the appellant;

Henri-Pierre Labrie and Michel Breton, for the respondent.

Solicitors of Record:

Pariseau, Olivier, Mondor, Rougeau, Montreal, Quebec, for the appellant;

The Attorney General's Prosecutor of Quebec, Longueuil, Quebec, for the respondent.

This appeal was heard on May 14, 2002, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The decision of the Supreme Court of Canada was delivered in both official lan­guages on October 31, 2002, when the fol­lowing opinions were filed:

Arbour, J. (McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel, JJ., concurring) - see para­graphs 1 to 63;

L'Heureux-Dubé, J., dissenting - see paragraphs 64 to 154.