If the accused does not testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial, regardless of whether he was the accused or a mere witness at the earlier proceeding.
Even if the accused does testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial if he was compellable as a witness at the earlier proceeding.
If the accused does testify at his trial, his testimony from an earlier proceeding can be used to cross-examine him at that trial provided he was not compellable as a witness at the earlier proceeding.
By way of exception to these rules, if the accused is being prosecuted because it is alleged that it was an offence for him to testify as he did at an earlier proceeding (such as in a prosecution for perjury or obstruction of justice for giving misleading answers), then the Crown is free to prove his earlier, allegedly criminal testimony.
As indicated, at common law witnesses had the right to refuse to answer questions during their testimony if the answer would tend to incriminate them. The Canada Evidence Act, in section 5, removed this right. In place of the privilege to refuse to answer, it now provides protection to those who are forced to reveal information tending to show that they have committed offences. While witnesses can still be prosecuted for the offences their testimony reveals, under section 5 the incriminating answers they give cannot be used against them during that subsequent prosecution for any purpose, whether as an admission of the offence charged or to contradict answers those witnesses may give at their sub-
sequent trial.25In effect witnesses are given "use immunity," as a quid pro quo for losing their common law privilege to refuse to answer. As Justice Arbour has explained:
[W]hen a witness who is compelled to give evidence in a proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony.26To be clear, the "use immunity" protection provided by the Canada Evidence Act relates only to those answers that amount to self-incriminating admissions at the time the previous testimony is being given. It does not extend to other testimony witnesses may give. As a simple example, assume that a corporate director who is charged criminally with fraud testified as a witness at the previous criminal trial of another person. Any admissions the corporate director made at that earlier trial about participating in the fraud would be excluded, but evidence by the corporate director acknowledging his corporate directorship would not be, as there is nothing incriminating in admitting the corporate offices held.
Provincial and territorial statutes have also universally removed the common law privilege to refuse to answer, replacing it with use immunity. The nature of that use immunity varies, however, from jurisdiction to jurisdiction. Alberta and the three territories mimic the Canada Evidence Act and offer use immunity only if the compelled self-incriminating testimony is being used in a subsequent provincial prosecution to incriminate the witness, whereas the balance of the provinces effectively prevent any subsequent use of the self-incriminating testimony, including in civil proceedings.
To gain the "use immunity" protection provided under section 5 of the Canada Evidence Act and in some provinces,27a witness must invoke it expressly by stating her awareness or fear that the particular answers may tend to incriminate her.28Certainly under the Canada Evidence Act and probably in those provinces where objection is required the witness need not invoke the protection for every question
but can do so with respect to a series of related questions.29It will be up to the judge at the subsequent trial to decide ultimately whether the testimony objected to was incriminating at the time the testimony was being given, and therefore protected by the section.
Section 13 of the Charter gives easier access to "use immunity" than section 5 of the Canada Evidence Act and in those provincial jurisdictions where objection is required. Witnesses are entitled to be protected by 13 as a matter of constitutional right whether they claim it or not, and whether or not they appreciate at the time they are answering that their responses are self-incriminating.
Although the matter is not yet settled, the preferred view is that section 13 of the Charter has made section 5 of the Canada Evidence Act redundant. While there is nothing in law preventing a statute from extending the protection of a constitutional rule, and the language of section 5 appears to support a broader interpretation, section 5 should not be given broader reach than section 13 for at least three reasons. First, section 13 has the same theoretical foundation as the statutory provisions. In R. v. Henry the Court repeated with approval a passage from R. v. Noël where it had earlier advised that "section 13 . . . is best understood by reference to section 5 of the Canada Evidence Act" and its quid pro quo purpose.30Second, the R. v. Henry Court noted that section 13 was "intend[ed] to extend s. 5 of the Canada Evidence Act to give further and better effect to this [common] purpose";31it would be inconsistent with that observation to read section 5 as housing broader protection than section 13 does. And third, as will be seen, the primary motivation for recent developments in the interpretation of section 13 was to prevent section 13 from being used to enable an accused person to give a version of events to a trier of fact while hiding from the trier of fact that she has previously offered a different account of those same events under oath. If section 5 of the Canada Evidence Act is interpreted more broadly than section 13 there will be cases where section 5 produces this undesirable effect. It would be perverse to read a statutory provision that fills the same function as the Charter provision in a way that frustrates the policy limits the Court has imposed on the Charter provision. There should therefore be no need or benefit in invoking the protection of the Canada Evidence Act; the best view is that section 5 of the Canada Evidence Act has become otiose because its function has been subsumed by section 13, which provides the same limited protec-
tion. Given that section 13 applies solely where the witness is subsequently being prosecuted, however, it remains prudent to invoke the protection of the relevant provincial evidence act in those provinces that provide civil use immunity if objection is taken.
Section 13 provides:
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.
Although this provision does not protect accused persons against adverse inferences being drawn from an earlier refusal to testify or answer questions,32it does provide significant protection for answers that have been furnished in testimony at earlier proceedings. In identifying the scope of that protection, care has to be taken in reading the section 13 cases decided prior to R. v. Henry.33In Henry the Supreme Court of Canada resiled from much of its own previously settled section 13 authority. It took this unusual step because its case law had become too complex and impractical. After Henry much of the dicta in earlier decisions must now be regarded as wrong, and at least one of the older cases decided by the Court, R. v. Mannion,34would have had a different outcome were it to be litigated under the new rules.
The new rules derived from R. v. Henry35are easy to state and illustrate:
1) If the accused does not testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial, regardless of whether he was the accused or a mere witness at the earlier proceeding.
Example: Dubois testified at his first trial and admitted that he killed the deceased, but claimed he acted in self-defence. His conviction at that first trial was overturned. At Dubois’ retrial a section 13 violation occurred when the
trial judge permitted the Crown to use, as part of its case, admissions made by Dubois in his first trial that he struck the fatal blow: R. v. Dubois . 362) Even if the accused does testify at his trial, his testimony from an earlier proceeding cannot be used against him at that trial if he was compellable as a witness at the earlier proceeding.
Example: Noël testified as a compellable witness at his brother’s murder trial. When he was testifying Noël implicated himself in the killing. At Noël’s subsequent trial for his part in the murder, section 13 was violated because the Crown was allowed to cross-examine Noël using extracts from the testimony Noël had given at his brother’s trial. 373) If the accused does testify at his trial, his testimony from an earlier proceeding can be used to cross-examine him at that trial provided he was not compellable as a witness at the earlier proceeding.
Example: Henry testified as a witness at his first trial on charges of murder. His conviction at that trial was set aside. Henry...