By: Laura Remigio, associate
Everyone in Canada has certain rights that are protected by the Canadian Charter of Rights and Freedoms. Many sections of the Charter also have specific rights that are designed to protect people who have been charged with a criminal offence. Some of these rights are well known in society, such as the right to a fair trial, the right to be presumed innocent until proven guilty, and the right to be protected from unreasonable search and seizure.
Section 11(c) of the Charter states that “Any person charged with an offence has the right … not to be compelled to be a witness in proceedings against that person in respect of the offence.”
This right is essentially known as the right to silence, as it prevents the Crown from compelling the accused to testify at their own trial. This right also coincides with other criminal law principles like the “case to meet” principle, which states that an accused person has the right not to be forced in to assisting in his or her own prosecution. In other words, an accused person never has to assist the Crown in proving their case.
So you cannot be compelled as a witness in your own trial, but what about in other related proceedings, like as a witness in your co-accused trial?
The Supreme Court found in R. v. S. (R.J.),  1 S.C.R. 451 that an accused person can generally be compelled to testify in other proceedings and their rights will be protected against self-incrimination through immunity protections.
The right to silence and the immunity protections in Canada are very different than in the United States of America. You may be familiar with the phrase “pleading the fifth”, which is popularly portrayed in many American televisions shows and movies. In the United States one component of the fifth amendment is that “No person shall … be compelled in any criminal case to be a witness against himself.” This offers a broad protection which allows a witness to refrain from answering any questioned asked to them in a court proceeding, if that person believes they may incriminate themselves through their testimony.
In Canada the protection is more limited. Section 13 of the Charter declares that:
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.
This section protects against self incrimination as any witness who testifies is protected from having that evidence used against them at another trial. So rather than allowing witnesses to refuse answering questions put to them during their testimony, like in the United States, in Canada a person would be compelled to answer the question, however, that evidence cannot be used against the at a later trial, unless they are being accused of perjuring themselves, or lying while they were testifying.
So, an accused person can be called as a witness at another person’s trial, and they will be protected from self-incrimination because the evidence given at that trial cannot be used against them in a future proceeding. However, what if this is not enough?
The Supreme Court has recognised that there are cases where an accused person should be exempt from testifying.
In cases where it is established that the Crown is calling an accused person to discover evidence against them, or for a fishing expedition, then the accused person should not be compelled to testify.
An accused person also may be exempt from testifying if their testimony would hinder their right to a fair trial by revealing the defence strategy, or if their testimony would bring to light crimes of which the state was previously unaware of. In these cases, attempting to protect a person from self-incrimination through our immunity protection laws would indeed be useless.
The biggest concern in determining whether a person should be compelled to testify is establishing whether the protections in placed would be undermined if that person is called to be a witness in another related proceeding. Basically, would an accused person’s earlier compelled testimony cause them to have an unfair trial.
At Derstine Penman, we fight to ensure that our clients right to a fair trial is upheld, and if their Charter rights have been violated in anyway, then we fight to ensure that the proper remedy is granted.