G. Right against Self-Incrimination

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The right against self-incrimination is dealt with under a variety of Charter provisions. As already noted, aspects of the right against self-incrimination may be invoked under section 7. Under section 11(c), an accused person cannot be required to testify at his or her own trial. Section 13 of the Charter provides as follows:

A witness who testifies in any proceeding 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 right against self-incrimination is narrower in Canadian law than it is under the common law or under the Fifth Amendment of the American constitution. In Canada, there is no right to refuse to give evidence in a proceeding in which the witness is not the accused.178The right conferred by section 13 of the Charter is restricted to not having that evidence used against the witness in a subsequent proceeding.

In R v Dubois,179this protection was extended to an accused who had testified at his trial, was convicted, appealed, and was given a new trial. The Supreme Court of Canada held that the testimony given at the first trial could not be used at the new trial. The guarantee was further extended in R v Mannion180where, in similar circumstances, the Court held that the previous testimony could not even be used to cross-examine the accused at his retrial. However, in R v Kuldip,181 the Court held that evidence given at a previous trial could be used to

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cross-examine as to the credibility of the accused as distinct from the use of such evidence to prove guilt.182In R v Henry,183the Court attempted to reconcile the confusing jurisprudence in this area and return to first principles. It overruled the extension of the protections against self-incrimination in Mannion on the basis that the purpose of the right against self-incrimination was not engaged when an accused chooses to testify at his retrial. In such circumstances, the accused is not being compelled to engage in self-incrimination. The Court also partially overruled Kuldip by holding that the accused’s prior voluntary testimony on the same indictment could be used in the new trial either to impeach the credibility of the accused or as evidence supporting the accused’s guilt. Although Henry withdraws section 13 protections in cases involving the accused’s voluntary testimony in his or her own trial and...

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