4. The Non-compellability of Accused Persons at Their Own Trials

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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Accused persons, other than corporations, cannot be compelled to testify against themselves at their own trials. As a general rule, however, accused persons can be compelled to testify at other proceedings, even when those other proceedings deal with the same subject matter as the charges they are accused of.

In rare cases, however, even those merely suspected of crimes as well as those formally accused may be protected from having to testify at proceedings that touch upon their allegedly criminal activity, such as public inquiries or coroner’s inquests; if the sole purpose in calling suspects as witnesses at such a proceeding is to obtain self-incriminatory information from them to assist in investigations against them, they cannot be forced to testify. Beyond this restriction, the law is not certain. It appears to be that if there is a legitimate public interest in having the evidence of a witness at a proceeding, the witness will be required to testify unless the predominant purpose in calling him was to obtain self-incriminatory evidence against him. In non-penal proceedings governed by the provincial Evidence Acts, the parties can be forced to testify by the opposing parties.

4. 1) Competence and Compellability outside the Charter

At common law, accused persons were disqualified from testifying at their own criminal prosecution because of their interest in the outcome. Subsection 4(1) of the Canada Evidence Act now makes it permissible for them to testify on their own behalf, although they are not made compellable by the Crown. "An accused who chooses to testify is compelled by law, like any other witness, to answer the questions

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put to him [even if those answers are self-incriminatory], and there are serious legal consequences [including being convicted of contempt of court] for failing to comply with the law."61Moreover, where an accused refuses to answer questions, it would certainly impact on his credibility.

Provincial Evidence Acts vary. All make the parties to a proceeding competent witnesses. Most make the parties compellable as well in civil proceedings, although they cannot be made to testify against themselves in provincial prosecutions.62Others purport to make the defendant a compellable witness even in the prosecution of a provincial offence.63

4. 2) Subsection 11(c) of the Charter

Subsection 11(c) of the Charter has overtaken the law relating to the non-compellability of accused persons charged with offences. Even in those provinces where the Evidence Acts make the defendant compellable in his own prosecution, subsection 11(c) would operate to prevent this compulsion from happening. Subsection 11(c) provides:

Any person charged with an offence has the right . . .

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence.

Of note, even though subsection 11(c) confers protection on "persons" - a term usually interpreted to include corporations - corporate accused cannot rely on this provision. This is because the inanimate nature of corporations prevents them from experiencing the indignity of compelled self-incrimination. This means that senior officers of a corporation are compellable against that corporation, notwithstanding subsection 11(c).64

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The protection under subsection 11(c) is available to natural persons only when they are "charged with an offence." This clearly includes individuals who are being prosecuted for criminal or quasi-criminal of-fences, even under provincial statute.65Yet the phrase, "charged with an offence," goes farther. Whether a person is charged with an offence, is a matter of substance, not form. The real question is whether the relevant proceedings have penal consequences. A police officer facing a professional discipline hearing that could have resulted in his incarceration was treated as having been charged with an offence.66Moreover, "the concern whether proceedings are [penal] in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves."67In Martineau v. Canada (Minister of National Revenue - M.N.R.),68for example, subsection 11(c) was not available during a Customs Act forfeiture proceeding, even though the unpaid duty had been assessed because the subject was alleged to have contravened the law by making false statements. What mattered was that the forfeiture proceedings were designed to operate as a civil recovery mechanism for the unpaid duty, not to punish or stigmatize him.

Assuming an individual is charged with an offence in the relevant sense, "[t]hree conditions must be met . . . to benefit from the protection against self-incrimination under s.11(c) of the Charter: (1) the person must be compelled to be a witness (2) in proceedings against that person (3) in respect of an offence."69When is a person compelled to be a "witness"? A witness is someone who furnishes testimony at a formal proceeding. A person who is subject to compulsion during an interrogation at a police station is therefore not a witness. Subsection 11(c) does not catch informal admissions or confessions, even if they are compelled. Separate rules handle this situation.70Subsection 11(c) would, however, catch a pre-trial discovery proceeding.71The second requirement, that the proceedings are "against" the person, is again, a question of substance. Technically, Martineau was the plaintiff when he sued for a review of a customs forfeiture notice that led

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to his compelled testimony, but that forfeiture hearing related to an assessment notice that the state had initiated. The Supreme Court of Canada therefore treated the proceedings as being against Martineau.72Had he otherwise qualified for the protection of subsection 11(c), the fact that he had launched the suit would not have been a problem for him.

A proceeding can be against more than one person; therefore, subsection 11(c) would prevent co-accused at a joint trial from forcing each other to testify.73The third requirement, "in respect of the offence," has been interpreted broadly. It requires that there be "‘some connection’ between the offence and the proceedings."74Since the forfeiture against Martineau arose because he was alleged to have committed customs offences, the forfeiture hearing was "in respect of the offence," even though Martineau was not being tried for the offence at that hearing. This means that had Martineau been charged with a customs offence and subjected to a separate forfeiture proceeding, he would have been able to use subsection 11(c) to avoid being examined for discovery at that forfeiture proceeding. Martineau therefore establishes, for the first time, albeit in obiter dictum, that subsection 11(c) protection is not confined to the proceeding at which the accused is being tried for the offence.

The question that arises is how far does its protection extend? The language used by the Supreme Court of Canada in Martineau is decidedly broad, but it cannot be that a person charged with an offence can rely upon subsection 11(c) to claim non-compellability at independent proceedings into the same event that comprises the alleged offence, such as civil proceedings, public inquiries, or the separate trials of co-accused persons. If this was intended, the Martineau dictum would override a significant body of authority to the contrary.75The obiter dictum should therefore be understood in light of the facts of the case, and read as extending the protection of subsection 11(c) to situations where there is a substantive connection between the two proceedings. The substantive link between the offence and the forfeiture proceeding in Martineau was intimate and unique, because the right to civil forfeiture that was being claimed against Martineau required an allegation that a customs offence had been committed (even if it was not being prosecuted). Moreover, had Martineau been charged the state would have been responsible for instituting both proceedings.

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4. 3) Section 7 and "Constitutional Exemptions" from Testifying

In rare cases, section 7 will buttress subsection 11(c) and enable a witness who is a suspect to avoid testifying. This is because it is contrary to the principles of fundamental justice to compel a person to testify at a proceeding, even where he is not accused, if this is being done in order to obtain incriminating information from him. Put simply, the state power to compel testimony is not to be used as a substitute for a criminal investigation.76In R. v. Bagri the Supreme Court of Canada dubbed the relevant protection a "constitutional exemption" from testimony. The right to this constitutional exemption arises where "the predominant purpose" of calling a person at a hearing is "to obtain information or evidence for the prosecution of the witness."77The Court intimated that had the investigative hearing power been used in that case to investigate the witness with a view to his own possible prosecution, the constitutional exemption would have applied to prevent that investigation hearing from taking place.

The approach taken in the Bagri case is consistent with dictum in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)78where Justice Cory expressed the view that a predominant purpose test should be used to determine whether a suspect called to testify at a proceeding will be entitled to quash a subpoena. In British Columbia Securities Commission v. Branch,79however, a majority of the...

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