R. v. Kuldip, [1990] 3 S.C.R. 618
Her Majesty The Queen Appellant
v.
Shamanand Kuldip Respondent
and
The Attorney General of Canada and
the Attorney General for Alberta Interveners
indexed as: r. v. kuldip
File No.: 20803.
1990: March 28; 1990: December 7.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ Cross‑examination of accused at a new trial on his testimony given at a previous trial for purpose of impeaching his credibility ‑‑ Whether cross‑examination infringed s. 13 of the Canadian Charter of Rights and Freedoms.
Evidence ‑‑ Cross‑examination ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ Cross‑examination of accused at a new trial on his testimony given at a previous trial for purpose of impeaching his credibility ‑‑ Whether cross‑examination infringed s. 13 of the Canadian Charter of Rights and Freedoms or s. 5(2) of the Canada Evidence Act.
The respondent was convicted of failing to remain at the scene of an accident with intent to escape civil or criminal liability, contrary to s. 233(2) of the Criminal Code. A Summary Conviction Appeal Court allowed his appeal and ordered a new trial. During the course of the second trial, the Crown sought to impeach the respondent's credibility by cross‑examining him on apparent inconsistencies with the testimony which he had given at his first trial. He was again convicted of the offence and an appeal from that conviction was dismissed by the Summary Conviction Appeal Court. The Court of Appeal allowed the appeal from that decision, quashed the conviction and entered a verdict of acquittal on the grounds that the cross‑examination of the respondent, using his testimony at his first trial to impeach his credibility at his second trial, violated s. 13 of the Canadian Charter of Rights and Freedoms.
The constitutional questions stated in this Court were: whether the cross‑examination of an accused at a new trial on testimony given at a previous trial on the same charge for any purpose infringes s. 13 of the Charter; and, if so, whether such cross‑examination is justified on the basis of s. 1 of the Charter.
Held (Wilson, La Forest and L'Heureux‑Dubé JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer C.J. and Gonthier and McLachlin JJ.: The cross‑examination of the respondent at his second trial on testimony given by him at a previous trial on the same information was clearly for the purpose of undermining his credibility and, therefore, his s. 13 rights were not violated. It is appropriate to distinguish between a cross‑examination made for the purpose of impeaching credibility and one made to "incriminate" the accused, that is, to establish guilt. Using a prior inconsistent statement from a former proceeding in order to impugn the credibility of an accused does not incriminate that person. The previous statement is not tendered as evidence to establish the proof of its contents but, rather, is tendered for the purpose of unveiling a contradiction between what the accused is saying now and what he has said on a previous occasion. An accused has the right to remain silent during his trial. If, however, an accused chooses to take the stand, that accused is implicitly vouching for his credibility. Such an accused, like any other witness, has therefore opened the door to having the trustworthiness of his evidence challenged. An interpretation of s. 13 which insulates an accused from having previous inconsistent statements put to him on cross‑examination for the sole purpose of challenging credibility would "stack the deck" too highly in favour of the accused.
Section 5(2) of the Canada Evidence Act expressly allows the witness to make an objection to a question where the answer may tend to criminate the witness. The witness is guaranteed that, in exchange for being compelled to answer such a question, the answer will not be used to criminate the witness in a subsequent proceeding. A further guarantee that such answer will not be used in cross‑examination to challenge the witness's credibility at a later proceeding would extend beyond the purpose of s. 5(2). Section 5 does not prohibit the Crown from ever using the privileged testimony in cross‑examining the accused at a later proceeding but, rather, only prevents the Crown from using the testimony to incriminate the accused.
Section 5(2) of the Act and s. 13 of the Charter offer virtually identical protection. Neither prevents the Crown from using the testimony in cross‑examination at the later proceeding for the purpose of determining the witness's credibility. The difference between these sections is that s. 5(2) requires an objection at the first proceedings while s. 13 does not.
A constitutional question is to be stated only where doubt as to the constitutional validity, applicability or operability of a statute or regulation is raised. It was not necessary to answer the constitutional questions stated here because the case at bar arose out of the Crown's actions in cross‑examining the accused and not out of any question as to the constitutionality of a legislative provision.
Per Wilson, La Forest and L'Heureux‑Dubé JJ. (dissenting): The appeal should be dismissed for the reasons given by the Court of Appeal.
Cases Cited
By Lamer C.J.
Applied: Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 S.C.R. 1110; distinguished: R. v. Mannion, [1986] 2 S.C.R. 272; considered: R. v. Dubois, [1985] 2 S.C.R. 350; R. v. Wilmot (1940), 74 C.C.C. 1; R. v. Côté (1979), 50 C.C.C. (2d) 564; R. v. Langille (1986), 176 A.P.R. 262; R. v. B.(W.D.) (1987), 38 C.C.C. (3d) 12; Johnstone v. Law Society of British Columbia, [1987] 5 W.W.R. 637; R. v. Corbett, [1988] 1 S.C.R. 670.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E-10 (now R.S.C., 1985, c. C‑5), ss. 5(1), (2), 10.
Canadian Charter of Rights and Freedoms, ss. 1, 13.
Criminal Code, R.S.C. 1970, c. C‑34, s. 233(2).
Rules of the Supreme Court of Canada, SOR/83‑74, r. 32 [am. SOR/84‑821, s. 1].
APPEAL from a judgment of the Ontario Court of Appeal (1988), 24 O.A.C. 393, 40 C.C.C. (3d) 11, 62 C.R. (3d) 336, allowing the respondent's appeal from a judgment of Weiler Dist. Ct. J., (1986), 17 W.C.B. 91, 9 C.R.D. 875-02, [1986] Ont. D. Crim. Conv. 5405-02, dismissing the respondent's appeal from a conviction by Drukarsh Prov. Ct. J. on a charge of failing to remain at the scene of an accident. Appeal allowed, Wilson, La Forest and L'Heureux‑Dubé JJ. dissenting.
Michael F. Brown, for the appellant.
Paul Slansky, for the respondent.
S. R. Fainstein, Q.C., for the intervener the Attorney General of Canada.
Balfour Der, for the intervener the Attorney General for Alberta.
//Lamer C.J.//
The judgment of Dickson C.J. and Lamer C.J. and Gonthier and McLachlin JJ. was delivered by
LAMER C.J. -- The present appeal is concerned with the right of the Crown to cross-examine an accused at a new trial on testimony given at a former trial on the same information. More specifically, the Court is asked to determine if, under s. 13 of the Canadian Charter of Rights and Freedoms, a prior inconsistent statement made by an accused may be used by the Crown in cross-examination of the accused on re-trial in order to undermine his or her credibility. The resolution of this question will, however, be applicable whether the prior testimony was given at an individual's own trial or whether it was given at some other prior proceedings. Section 13 reads as follows:
13. 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.
The Facts
The respondent, Shamanand Kuldip, was charged with failure to stop at the scene of an accident contrary to s. 233(2) of the Criminal Code, R.S.C. 1970, c. C-34. On February 27, 1984, he was tried and convicted of this offence, but that conviction was quashed and a new trial ordered by the County Court of the Judicial District of York on December 5, 1984. On re‑trial before Drukarsh Prov. Ct. J. of the Provincial Court of Ontario, the respondent was again convicted. He appealed his conviction to the Summary Conviction Appeal Court. Weiler Dist Ct. J. of the District Court of Ontario dismissed the appeal. The respondent then appealed to the Ontario Court of Appeal. The Court of Appeal allowed the appeal, quashed the conviction and entered a verdict of acquittal on the grounds that the cross-examination of the respondent, using his testimony at his first trial to impeach his credibility at his second trial, violated s. 13 of the Charter: (1988), 40 C.C.C. (3d) 11.
At both his first and second trial, the respondent testified to the effect that, following the car accident in which he was involved on February 6, 1983, he went to 42 Division of the Metropolitan Toronto Police and reported what had occurred. He also gave evidence at both trials that he went back to 42 Division again on March 2, 1983, in order to attempt to ascertain the name of the officer who had taken the original report on February 6, 1983. As regards this second visit to 42 Division, Kuldip gave the following evidence at his first trial:
Question
Can you tell us about when that was, when you went back to the 42 Division?
Answer
I went back to [the] 42 Division March 2nd. It was - I can give you a time, it was about twelve o'clock. We left there at 2:08. Okay, we reached the police station and I spoke to an officer, P.C. Brown and he told me that the officer who probably took the statement was either McNichol or Gibson and he remembers me coming in there and giving the statement because he saw me coming in there kind of shaken up when I walked in.
Question
Are you saying this P.C. Brown you'd been speaking to on the second occasion was also there on the first occasion?
Answer
Yes, but he did not take the statement. He didn't take any statements. He just remembers me coming in there, because my father was with me.
At the second trial, the respondent testified that about an hour prior to giving testimony at his second trial, he discovered that Constable Brown was not on duty on February 6, 1983. He was then asked the following question by his counsel:
Question
Did you ever think that P.C. Brown might have been one of the officers that you dealt with on February the 6th, in other words, on the day of the incident . . .?
Answer
I thought so. To me he looked familiar and - however, I found out he wasn't even on duty that day and time, so it cannot be him.
At the second trial, Constable P.C. Brown testified that he did not work on February 6, 1983. The Crown cross-examined the respondent on the inconsistencies in his evidence between the first and second trials concerning the presence of Constable P.C. Brown at the 42 Division on the aforementioned date. After reading to the respondent the testimony he gave at his first trial, the Crown proceeded to cross-examine the respondent as follows:
Question
Do you recall being asked those questions and giving those answers?
Answer
It certainly is familiar. So, I would have to say yes, if it's on the transcript.
Question
Were you trying to tell the truth on the last occasion?
Answer
I was. I certainly, by no means, meant to lie.
Question
Can you explain, sir, how you not only recall that P.C. Brown was present on the 6th of February, but that he actually remembered you, according to your evidence, when you returned on the 2nd of May [sic] . . .
Answer
Well, if I said that, that's what the officer said the day that I visited him.
Question
I see. I take it from that answer that it was the officer who was initially confused and his confusion confused you? Is that right?
Answer
Sorry, I don't understand.
Question
Well, you say - you say you must have said that because the officer told you he remembered you?
Answer
Of course.
Question
Of course he couldn't have remembered you, sir, if it was the 6th of February that you came into the station on the first place, is that right, because he didn't work on the 6th, did he?
Answer
That's right.
Question
You just found that out today, right?
Answer
Right.
Hence, the respondent's prior testimony was being used by the Crown to suggest, in effect, that he changed the evidence he gave at his first trial that P.C. Brown was present when he reported the occurrence on February 6, 1983, because he had learned at the subsequent trial that P.C. Brown was not on duty that day. In doing so, the Crown obviously sought to undermine the respondent's credibility in respect of the fact that he had allegedly reported the incident immediately.
Judgments Below
Provincial Court of Ontario
Drukarsh Prov. Ct. J., at the conclusion of the second trial, convicted the respondent. He accepted the evidence tendered by the Crown and disbelieved the defence evidence. The respondent appealed his conviction to the Summary Conviction Appeal Court on the grounds that the trial judge erred in permitting Crown counsel to cross-examine the appellant on evidence given by him at a previous trial.
District Court of Ontario
Weiler Dist. Ct. J. held that the Crown was entitled at the second trial to cross-examine the respondent as to credibility by putting to him prior contradictory statements made at his previous trial. In this respect, she stated:
I am of the opinion that a distinction must be drawn between evidence used to incriminate and prior statements being used to test credibility. Otherwise, the result would be that the accused would be the only witness who could insulate his first story from exposure at a subsequent trial.
She observed that at the re-trial, counsel for the respondent had made extensive use of the evidence given by Crown witnesses at the first trial in cross-examination of the same Crown witnesses. In her opinion, to bestow upon an accused who chooses to testify immunity from being exposed to a similar test of his credibility "goes against the grain of common sense". Weiler Dist. Ct. J. added that to preclude the cross-examination of an accused on his prior statements on the basis of s. 13 of the Charter would mean that s. 10 of the Canada Evidence Act, R.S.C. 1970, c. E-10 (now R.S.C., 1985, c. C-5), "had been silently and judicially repealed".
Ontario Court of Appeal (Howland C.J.O., Martin and Grange JJ.A.)
Writing for the court, Martin J.A. commenced his analysis by reviewing this Court's judgment in R. v. Mannion, [1986] 2 S.C.R. 272. Having done so, he rejected the appellant's attempt to distinguish Mannion from the case at bar on the basis that the use of prior inconsistent statements solely to impeach credibility did not "incriminate" the respondent under s. 13. In reaching this conclusion, the court considered the status of the right to cross-examine an accused on his testimony in a prior judicial proceeding before the advent of the Charter.
The court observed that evidence given under oath by an accused in a prior judicial proceeding was receivable against him or her in a subsequent criminal trial unless, in the prior proceeding, the accused had invoked s. 5(2) of the Canada Evidence Act. Sections 5(1) and 5(2) read as follows:
5. (1) No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.
By signifying an objection at the beginning of his or her testimony at the initial proceeding, the accused could trigger the protection offered by s. 5(2).
Having done so, the witness was protected from having the previous evidence used against him\her in a subsequent criminal proceeding. The pre-Charter jurisprudence does not address the issue of a distinction between the use of prior evidence on cross-examination for purposes of incrimination versus impeaching credibility and Martin J.A. inferred that no distinction was intended. He stated (at p. 21):
Section 5(2) imposed a blanket prohibition against the use of the accused's prior evidence on cross-examination either for the purpose of incriminating him directly or for the purpose of impeaching his credibility.
The court noted that under the Canada Evidence Act there was no obligation upon the court, tribunal or judicial officer, before whom evidence was given on the first occasion, to advise the witness of the right to invoke the protection of s. 5(2) of the Act. Despite complaints regarding the unfairness of this situation, no obligation was legislated or inferred from the existing statute. It was the opinion of the court that one of the purposes of s. 13 of the Charter was to redress this unfairness. Section 13 would extend the protection of s. 5(2) to all witnesses, regardless of whether an objection was made in the earlier proceedings.
Martin J.A. did not read the judgment of this Court in Mannion as limiting the application of s. 13 to situations where the prior evidence is used to incriminate the accused as opposed to impeach his or her credibility. In this respect, he remarked as follows (at pp. 22-23):
If the effect of s. 13 of the Charter were so restricted, the unfairness or inequality that s. 13 of the Charter was designed to remove would be perpetuated: the sophisticated witness who objected to answering under s. 5(2) would be afforded protection against the subsequent use of his evidence not only to incriminate him directly, but also to attack his credibility, whereas the unsophisticated witness who failed to object because he was unaware of the protection afforded by s. 5(2) would not be protected by s. 13 of the Charter against the subsequent use of his evidence to attack his credibility. Section 5 of the Canada Evidence Act, of course, remains in force.
The court also commented that to the extent that impeaching the credibility of the accused assists the Crown in its case, it may be "difficult to draw a clear line between cross-examination on the accused's prior testimony for the purpose of incriminating him and such cross-examination for the purpose of impeaching his credibility" (p. 23).
Relying on passages from McIntyre J.'s judgment in Mannion, Martin J.A. concluded that the statutory protection provided under s. 5(2) could not be broader than that accorded by s. 13 of the Charter. He interpreted McIntyre J. in Mannion to mean that if the answers of an accused who has invoked s. 5(2) are not admissible against him for any purpose in subsequent proceedings (other than a prosecution for perjury in the giving of such evidence), then the protection bestowed by s. 13 of the Charter must also extend that far.
Analysis
Introduction
The present appeal deals with the proper scope to be given to s. 13 of the Charter which guarantees the right against self-incrimination. The following constitutional questions were stated by Dickson C.J. on April 27, 1989:
1.Whether the cross-examination of an accused at a new trial on testimony given at a previous trial on the same charge for any purpose infringes or denies the right guaranteed in s. 13 of the Canadian Charter of Rights and Freedoms?
2.If so, is such cross-examination justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and, therefore, not inconsistent with the Constitution Act, 1982?
In essence, these questions are identical to those examined by this Court in Mannion. The only difference between Mannion and the present appeal lies in the fact that this Court is now asked to examine the purpose of the cross-examination of an accused at a new trial on testimony given at a previous trial. In this respect, the Crown argued that, in the case at hand, the testimony given by Kuldip at his previous trial was not used to "incriminate" him but was solely tendered for the purpose of undermining his credibility. From the Crown's standpoint, s. 13 of the Charter does not prevent the use of previous testimony when such use is directed at impeaching the accused's credibility. The respondent argued that s. 13 prevents the use of testimony from a former proceeding, during a subsequent cross-examination, whatever the purpose of the cross-examination. The reasons of Martin J.A., outlined above, indicate that the resolution of this matter raises certain policy issues regarding the interaction of s. 13 of the Charter and s. 5(2) of the Act, and will involve the interpretation of s. 5(2) of the Canada Evidence Act.
In order to assess properly the difficult questions raised in this appeal, I feel it is essential to commence my analysis with a brief review of this Court's recent decisions as regards the right against self-incrimination: R. v. Dubois, [1985] 2 S.C.R. 350, and Mannion, supra.
Decisions of this Court
In Dubois, the accused was charged with second degree murder. At his trial, he voluntarily took the stand and admitted that he had committed the murder, alleging certain circumstances of justification. He was convicted but successfully appealed the conviction to the Alberta Court of Appeal and was granted a new trial on grounds of misdirection to the jury. At the new trial, Dubois did not testify but the Crown sought to adduce the testimony he had given at his first trial as part of its case. Both the trial judge and the Alberta Court of Appeal concluded that such use of previous testimony was not precluded by s. 13 of the Charter. A majority of this Court, however, reversed this position. The purpose underlying s. 13 was stated in the following terms (at p. 358):
Hence, the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. It guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings.
Taking a purposive approach to s. 13, this Court concluded that a new trial on the same charge constitutes "any other proceedings" within the meaning of the section. This Court held that the protection of s. 13 inures to an individual at the moment an attempt is made to utilize the previous testimony to incriminate its author. Because the Crown had tendered the previous testimony as part of its case, the previous testimony was used to incriminate Dubois in another proceeding and thus his s. 13 rights had been violated. Thus, Dubois stands for the proposition, and only for the proposition, that a new trial on the same charge constitutes another proceeding for the purpose of s. 13, that the benefit of s. 13 inures to the benefit of an accused at the time an attempt is made to utilize the previous testimony for the purpose of incrimination, and that evidence tendered by the Crown as part of its case is incriminating. The issue pertaining to the use of testimony given at a previous trial on cross-examination was, however, left unresolved (at pp. 364-65):
Since in this case, the Crown is tendering the evidence as part of its case, which clearly comes within the meaning of "used to incriminate", we need not here address the question of whether those words include resort to the previous testimony for the purpose of cross-examining the accused, were the latter to choose to take the stand again in his or her own defence.
This question was answered to some extent in Mannion.
Mannion was charged with rape. At his initial trial on this charge, he testified to the effect that he had been contacted by an investigating officer who had told him that he wanted to see him concerning a rape. He was convicted but this conviction was eventually quashed by the Alberta Court of Appeal which ordered a re-trial. Upon this new trial, Mannion again chose to testify. When doing so, he mentioned that he had been called by the investigating officer but gave no specific reason for this call. As Mannion had left Edmonton, the scene of the rape for which he was charged, for Vancouver soon after having been called by the officer, the Crown sought to use Mannion's initial testimony on cross-examination in an effort to demonstrate that Mannion's departure for Vancouver was prompted by his knowledge of the rape investigation, thereby establishing the guilty conscience of the accused. In a unanimous judgment (per McIntyre J.), such use of Mannion's previous testimony was found to contravene s. 13 of the Charter. The essence of the decision is contained in this passage, at pp. 279-80:
Mannion was a witness who testified at the earlier proceeding. His testimony in that earlier proceeding, while not introduced by the Crown in its case in chief, was brought in on cross-examination. In my view, it was used to incriminate him. The Crown adduced evidence at both trials that, prior to the arrest of the respondent at Hinton on his way to Vancouver, no police officer had communicated to him that they were investigating his involvement in a rape. Mannion had mentioned that he knew a rape was involved in his earlier trial and this fact was put to him in cross-examination in the second. The Crown argued in each trial that Mannion knew that a rape was involved before the police told him and that his precipitate flight from Edmonton when he became aware that the police wanted to see him displayed a consciousness of guilt. It is clear then that the purpose of the cross-examination, which revealed the inconsistent statements, was to incriminate the respondent. This evidence was relied upon by the Crown to establish the guilt of the accused. It is therefore my view that s. 13 of the Charter clearly applies to exclude the incriminating use of the evidence of these contradictory statements. [Emphasis added.]
Thus, in Mannion this Court partially answered the question left open by its judgment in Dubois: the use of previous testimony in a subsequent trial during cross-examination, for the purpose of establishing consciousness of guilt, violates the right against self-incrimination guaranteed by s. 13 of the Charter. The question left open by Mannion to be decided in this case is whether previous testimony may be used during cross-examination in a subsequent proceeding for some other purpose, namely: for the purpose of challenging the credibility of the witness.
Various other courts before and after Mannion have considered this question of whether cross-examination on prior inconsistent statements for purposes of destroying credibility constitutes incrimination under s. 13. I now turn to these decisions.
Decisions of Other Courts
In R. v. Langille (1986), 176 A.P.R. 262 (N.S.C.A.), a bankrupt made an affidavit in a bankruptcy proceeding and then objected to being cross-examined on the affidavit in the course of his trial for alleged bankruptcy offences. The Nova Scotia Court of Appeal distinguished between the tendering of evidence for the purpose of incrimination versus discrediting the accused. After reviewing a number of judgments, including Dubois, the court concluded (at p. 269):
Applying the reasoning in Dubois, it is my respectful opinion that there was no violation of s. 13 when the Crown cross-examined the appellant [Langille] upon his affidavit, even if the affidavit could equate the applicable words of s. 13. To prevent such cross-examination would be to invite witnesses to tell one story at one time with the full knowledge that the story could be changed with impunity in another proceeding, subject only to "a prosecution for perjury or for the giving of contradictory evidence".
In R. v. B.(W.D.) (1987), 38 C.C.C. (3d) 12, the Saskatchewan Court of Appeal considered the use of an affidavit signed by an accused in Unified Family Court during cross-examination on a criminal charge of sexual abuse. Vancise J.A. distinguished incriminating evidence from discrediting evidence (at pp. 22-23):
In our opinion, it is only when answers are used to "incriminate" or have the effect of self-incrimination, that s. 13 comes into play. In the situation where the prior inconsistent statement is being used to discredit or to lessen the credibility that should be given to his present testimony, s. 13 should not apply. In our opinion, "discredit" cannot be interpreted as "incriminate".
Such use of a previous statement does not violate the purpose of s. 13 when viewed from the context of s. 11(c) and (d), which is to prevent the accused from being indirectly compelled to incriminate himself. Its purpose is not to insulate the accused from exposure where he has related inconsistent and conflicting evidence, or to protect him from being exposed to a test of credibility.
Vancise J.A. later stated that if the Crown's evidence on cross-examination related to the commission of the offence rather than to the accused's credibility, s. 13 would be engaged and the cross-examination prohibited, because "[t]hat would be an attempt to use the accused's previous answers against him as the basis of his own prosecution" (p. 24).
In Johnstone v. Law Society of British Columbia, [1987] 5 W.W.R. 637 (B.C.C.A.), counsel for the Law Society at a discipline hearing attempted to cross-examine the appellant solicitor on his testimony before the registrar for purposes of impugning his credibility. The British Columbia Court of Appeal held that such use of prior statements did not contravene s. 13. The British Columbia Court of Appeal did not consider attacks on credibility to be incriminating. Craig J.A. characterized at p. 652 the use of cross-examination in Mannion to prove consciousness of guilt as something "from which a trier of fact may infer that an accused is guilty of the crime charged. It was, therefore, a factor which incriminated him".
The above cases all argue in favour of a distinction between a cross-examination made for the purpose of impeaching credibility and one made to "incriminate" the accused, that is, to establish guilt. In my view this is an appropriate distinction and is one which is supported by the facts in this case. I agree with the appellant's view as regards the purpose for which the respondent's testimony from the first trial was used. Indeed, by putting to the respondent prior inconsistent statements made at his previous trial, Crown counsel could only seek to impeach the respondent's credibility in respect of his allegation that he had reported the accident in which he was involved to officer P.C. Brown. The rationale for a distinction based on the purpose for which cross-examination is made was stated most succinctly by Craig J.A. in Johnstone, at p. 652:
The submission of Mr. Hall really amounts to a contention that any cross-examination of an accused (or a person in the position of Johnstone) on testimony which he gave under oath in a previous proceeding always contravenes s. 13, even if its sole purpose is to reflect on his credibility. Such a conclusion is contrary to the basis upon which we normally assess testimony. We are constantly telling juries that a criminal trial is not a contest between the state and the accused but that, rather, it is a solemn inquiry which is conducted in accordance with certain principles with a view to ascertaining the truth. The major concern of every trier of fact is whether the evidence is credible -- or to use Wigmore's expression, the "trustworthiness" of the evidence. Wigmore states that "no safeguard for testing the value of human statements is comparable to that furnished by cross-examination . . ." [citation omitted]. Although the Charter may produce a change in some of what I term traditional views in the law, I doubt that the framers of the Charter ever intended that when a trier of fact is assessing the credibility of a witness he cannot consider his previous testimony on the same subject except when the sole purpose of such examination is to incriminate the witness, as in the Mannion case. To hold that any cross-examination of an accused (or a person in the position of Johnstone) on previous testimony contravenes s. 13 is an unwarranted extension of the right guaranteed by s. 13.
Using a prior inconsistent statement from a former proceeding during cross-examination in order to impugn the credibility of an accused does not, in my view, incriminate that accused person. The previous statement is not tendered as evidence to establish the proof of its contents, but rather is tendered for the purpose of unveiling a contradiction between what the accused is saying now and what he or she has said on a previous occasion. For example, a situation could arise where A is charged with murder and B gives testimony at A's trial that B was with A in Montréal on the day of the alleged murder committing a bank robbery. B may subsequently become the accused in a trial for robbery and choose to take the stand in his defence. If B then testifies that he was in Ottawa on the day of the alleged robbery, the Crown is entitled to cross-examine B with respect to the discrepancy between his current testimony and his previous testimony. The previous statement is used only to impeach the accused's credibility with respect to his current testimony that he was in Ottawa on the day of the alleged robbery. The previous statement may not be used, however, to establish the truth of its contents; it may not be used to establish that the accused was, in fact, in Montréal on the day of the alleged bank robbery nor can it be used to establish that the accused did, in fact, commit the alleged bank robbery. In the situation just described, it would be incumbent upon the trial judge to give a warning to the jury that it would not be open to it to conclude, on the basis of his previous statement, that the accused was in Montréal on the day of the alleged bank robbery nor to conclude that the accused did, in fact, commit the bank robbery. The jury would have to be warned that the only possible conclusion open to it from such cross-examination would be that the accused was not telling the truth when he said that he was in Ottawa on the day of the robbery and that he was not, in fact, in Ottawa on that day. Of course, this in turn might well enable it to conclude, beyond a reasonable doubt, that B was in Montréal committing the robbery; but this conclusion could only be reached as a result of other evidence which will have become uncontradicted evidence as a result of the cross-examination which has impeached the credibility of the accused and thereby caused the jury to disbelieve the accused's current testimony.
This seems an appropriate time at which to mention that I share Martin J.A.'s concern that it is sometimes difficult to draw a clear line between cross-examination on the accused's prior testimony for the purpose of incriminating him and such cross-examination for the purpose of impeaching his credibility. A trial judge will have to be very clear in his or her instructions to the jury when setting out the uses to which previous testimony can be put and the uses to which such testimony must not be put. While such a distinction may be somewhat troublesome to the jury, it is my view that with the benefit of clear instructions from the trial judge the jury will not be unduly burdened with this distinction. These instructions should, in many ways, be reminiscent of those which are routinely given with respect to the use to which an accused's criminal record may be put. A trial necessarily involves evidentiary questions which are sometimes complex in nature. While simplicity in these manners is generally preferable to complexity, the policy reasons underlying the need for a jury to have before it all the relevant information related to the charge (discussed by this Court in R. v. Corbett, [1988] 1 S.C.R. 670) clearly outweigh the benefits of simplicity in these circumstances.
An accused has the right to remain silent during his or her trial. However, if an accused chooses to take the stand, that accused is implicitly vouching for his or her credibility. Such an accused, like any other witness, has therefore opened the door to having the trustworthiness of his\her evidence challenged. An interpretation of s. 13 which insulates such an accused from having previous inconsistent statements put to him\her on cross-examination where the only purpose of doing so is to challenge that accused's credibility, would, in my view, "stack the deck" too highly in favour of the accused.
Thus, but for the policy concern raised by Martin J.A. in the Ontario Court of Appeal, I would be inclined to conclude, at this point, that s. 13 does not preclude the use of previous testimony during a subsequent cross-examination if the sole purpose of that cross-examination is to challenge the credibility of an accused who has chosen to testify in the second proceedings. I turn now to an examination of the policy issue raised by the Court of Appeal in this case.
Policy Issue
In the judgment of the Court of Appeal, Martin J.A. rejected the interpretation that was given to s. 13 of the Charter by the British Columbia Court of Appeal in Johnstone, supra. He consequently rejected the relevance, for the purposes of s. 13, of identifying the objectives of the Crown in putting the prior inconsistent statements to the accused in cross-examination. Instead, Martin J.A. interpreted s. 13 to mean that an incriminating statement made by an accused at a proceeding can under no circumstances be used in cross-examining him or her at a later proceeding, regardless of the specific purpose of using the testimony in the course of the cross-examination.
As outlined above, the Court of Appeal decided that s. 13 must be interpreted in light of the protection against self-incrimination afforded to a witness under s. 5 of the Canada Evidence Act. The court emphasized that considerable unfairness resulted from the application of s. 5, since there was no obligation on the judicial body hearing a witness to advise that witness of his or her right to object to a potentially incriminating question. Martin J.A. described the resulting unfairness as follows (at p. 22):
Prior to the Charter, a sophisticated witness or one who had the benefit of the advice of counsel might secure protection from the subsequent use of his evidence against him in a criminal trial by invoking s. 5(2), whereas an unsophisticated witness or one who lacked counsel, because he was unaware of his right to invoke s. 5(2), might have the evidence from a prior proceeding used against him in a subsequent trial.
The court concluded that a fundamental purpose underlying the adoption of s. 13 was to redress such unfairness caused by the application of s. 5.
In view of the purpose of s. 13, it was argued that the section could not be interpreted in such a way as to give a witness narrower protection from the use of incriminating evidence against him than the protection he would be afforded if he were "sophisticated" enough to make an objection under s. 5. To ascertain the precise scope of s. 13, therefore, the court found it necessary to consider the protection gained by a witness who makes a valid objection under s. 5.
The Court of Appeal considered the jurisprudential interpretation of s. 5 prior to the coming into force of the Charter and concluded that s. 5 effectively prohibited testimony given by a witness in a proceeding from being used to cross-examine him for any purpose at a later proceeding. The prior testimony could in no circumstances be used in cross-examining an accused at a later proceeding (at pp. 20-21):
It was well established prior to the advent of the Charter that, where a witness in a judicial proceeding invoked s. 5(2) of the Canada Evidence Act, his evidence could not be used to cross-examine him: see R. v. Wilmot . . .; R. v. Coté . . . . I observe that both R. v. Wilmot . . . and R. v. Coté . . . were cited with approval by McIntyre J. in R. v. Mannion . . .
The pre-Charter authorities did not distinguish between the use of the prior evidence on cross-examination for the purpose of directly incriminating the accused and its use for the purpose of attacking his credibility. Section 5(2) imposed a blanket prohibition against the use of the accused's prior evidence on cross-examination either for the purpose of incriminating him directly or for the purpose of impeaching his credibility.
The court clearly saw no ambiguity in the case law applying s. 5 that would allow it to interpret the section in order to permit the use of the prior testimony in cross-examining the accused at a later proceeding for the purpose only of impeaching his credibility.
The court's understanding of the purpose underlying s. 13 and its concern for the inequity which could result if s. 13 were interpreted so as to provide less protection than s. 5 thus caused it to reject the Crown's contention that s. 13 prevents the use of prior inconsistent statements made by an accused in cross-examining him at a later proceeding where the sole purpose of using the statement is to assist the Crown in incriminating the accused.
With all due respect, I am unable to accept the Court of Appeal's method of interpreting s. 13. First, I believe that s. 5(2) of the Act should not be used as an obligatory instrument in the assessment of the ambit of s. 13, even if the necessary result, which I do not admit in this instance, would be that the protection granted by the federal statute is wider than that afforded under the Charter. It is possible that, in certain circumstances, the rights protected by statute will be greater in scope than comparable rights affirmed by our Constitution. The Charter aims to guarantee that individuals benefit from a minimum standard of fundamental rights. If Parliament chooses to grant protection over and above that which is enshrined in our Charter, it is always at liberty to do so.
Furthermore, I am not prepared, when interpreting s. 13, to presume that it was designed to remedy an unfair situation created by statute. If undesirable inequalities arise from the application of a statutory provision, for example s. 5(2) of the Canada Evidence Act, it is up to Parliament to redress the unfairness by amending or repealing the problematic elements of the provision. The advent of the Charter has not modified pre-existing rights and, conversely, the fact of pre-existing rights should not unnecessarily influence the interpretation of the scope of constitutionally-protected rights.
Secondly, and I say this with the utmost respect, I cannot accept the Ontario Court of Appeal's interpretation of s. 5(2) of the Canada Evidence Act. In my opinion, the protection offered by s. 5(2), namely, the guarantee that "the answer so given [by the witness] shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place . . .", must be interpreted in consideration of the express purpose of allowing the witness to make an objection under s. 5(2). This purpose is expressed clearly in the opening words of s. 5(2) that impose the substantive condition to be fulfilled before the section is made operative: a witness is entitled to object to a question on the grounds that "his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person . . .". Since the witness is only entitled to object to a question on the grounds that the answer to the question will tend to criminate him, it is only logical that he be guaranteed, in exchange for compelling him to answer the question, that his answer will not be used to criminate him in a subsequent proceeding. A further guarantee that such answer will not be used in cross-examination to challenge the witness's credibility at a later proceeding would extend beyond the purpose of s. 5(2). With respect for contrary views, testimony given by a witness at a proceeding may, notwithstanding an objection under s. 5(2), be used at a subsequent proceeding in cross-examining the witness if the purpose of such use is to impeach his credibility and not to incriminate the witness.
It is also apparent that the scope of the judicial interpretation of s. 5(2) has, by some, been overstated. It has been concluded that the effect of R. v. Wilmot (1940), 74 C.C.C. 1 (Alta. C.A.), R. v. Coté (1979), 50 C.C.C. (2d) 564 (Que. C.A.), and Mannion, supra, is that an objection made under s. 5(2) at the first proceedings gives rise to a blanket prohibition against using the testimony in the course of cross-examining the witness at a subsequent proceeding. In Wilmot, the Alberta Court of Appeal considered whether the accused could be cross-examined with respect to testimony given at an earlier proceeding where such testimony was given in response to a question by the Crown to which an objection under s. 5(2) had been made. Ford J.A., speaking for the majority, stated the following (at pp. 18-19):
In my opinion the prohibition against the use as well as the reception of answers made to questions that may tend to incriminate, except as provided in the Act applicable to the inquest, whether it is the Alberta Evidence Act or the Canada Evidence Act, applies just as much to the use of the answer against the accused in cross-examination as to its being receivable in the Crown's case in chief.
In Côté, I, on behalf of the Quebec Court of Appeal, considered in detail the procedural conditions that must be fulfilled by a witness in order to make a valid objection under s. 5(2) of the Canada Evidence Act in the course of a proceeding. The court dealt very briefly with the issue of whether the successful invocation of s. 5(2) prevented the privileged testimony from being used in cross-examining the witness at a later proceeding. I stated, at pp. 571-72:
[TRANSLATION] It seems clear to me that to use the testimony in this way is to "use(d)" in the sense of s. 5 (in the French version, ". . . l'invoquer . . ."). This last ground does not seem to me deserving of further consideration. It suffices that I refer anyone who would like to go into the question in depth to the comments of our Alberta colleagues in the case of R. v. Wilmot . . .
Lastly, McIntyre J., speaking for this Court in Mannion, supra, summarized the holdings in Wilmot and Côté to the effect that "an accused person may not be cross-examined or examined-in-chief upon evidence given at a previous hearing where he had invoked the protection of s. 5 of the Canada Evidence Act" (p. 281). Mannion concerned the application of s. 13 of the Charter; McIntyre J.'s statements with respect to s. 5(2) were therefore not directly relevant to the holding in the case.
The holdings in these cases do not lead necessarily to the conclusion that testimony protected by the s. 5(2) privilege cannot be used in cross-examining the accused at a subsequent proceeding where the purpose of using the testimony is to impeach the accused's credibility and not to assist in building the Crown's against him, that is, to incriminate him. In Wilmot and Côté, the purpose of using the prior testimony in cross-examining the accused was never examined. The courts did not attempt to ascertain whether the testimony was used by the Crown to incriminate the accused or merely to impeach his credibility. As stated earlier, in Côté the focus of the case was on what had to be said by the witness in order to invoke the protection of s. 5(2). In Mannion, it was found that the Crown used the particular testimony in cross-examining the accused for the purpose of establishing a consciousness of guilt on his part; this was held to be an incriminating use of the earlier statements. Thus, any statement by this Court regarding the interpretation of s. 5(2) was not necessary to determine the result.
To the extent that Ford J.A., writing for the Alberta Court of Appeal in Wilmot, or myself, writing for the Quebec Court of Appeal in Côté, failed to examine the purpose of the Crown in putting the prior inconsistent statements of the accused to him in cross-examination, I am of the opinion that s. 5 was not interpreted correctly. Section 5 does not prohibit the Crown from ever using the privileged testimony in cross-examining the accused at a later proceeding. The Crown is only prevented from so using the testimony if the purpose of such use is to incriminate the accused. These judgments decided the central issue in each case without addressing the issue of whether the testimony was used in cross-examination to incriminate the accused or to undermine his credibility. Only after this question is answered can the accused's rights under s. 5(2) be determined.
It is thus apparent that Martin J.A.'s legitimate policy concern that s. 5 of the Canada Evidence Act and s. 13 of the Charter not provide different protection for an accused, against the use of incriminating statements, does not, in my view, arise. Section 5(2) and s. 13 offer virtually identical protection: a witness who testifies in any proceeding has the right not to have his or her testimony used to incriminate such witness at a later proceeding. Neither s. 5 nor s. 13 prevents the Crown from using the testimony in cross-examination at the later proceeding for the purpose of undermining the witness's credibility. The difference between these sections is that s. 5(2) requires an objection at the first proceedings while s. 13 does not.
Disposition
In the case at bar, the cross-examination of the respondent at the second trial was clearly for the purpose of undermining his credibility. Therefore, in view of the foregoing analysis, his s. 13 rights were not violated.
The constitutional questions, set out above, were stated prior to the decision in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 S.C.R. 1110, which established that under Rule 32 of the Rules of the Supreme Court of Canada, SOR/83-74, a constitutional question will only be stated when the constitutional validity or the constitutional applicability of a statute or of regulations is raised, or the inoperability thereof is urged. In light of that decision, the constitutional questions do not, in my respectful view, arise, nor would they have arisen had this Court interpreted s. 13 as did the Ontario Court of Appeal. In the case at bar, it was the action of the Crown in cross-examining the accused which was challenged under the Charter. The constitutionality of a legislative provision was not in issue. Therefore, the constitutional questions need not be answered.
Consequently, I would allow the appeal and restore the conviction entered by the Provincial Court of Ontario.
//Wilson J.//
The reasons of Wilson, La Forest and L'Heureux-Dubé JJ. were delivered by
WILSON J. (dissenting) -- I am in respectful agreement with the reasons of Martin J.A. writing for a unanimous Court of Appeal (1988), 40 C.C.C. (3d) 11 and have nothing to add to them. I would accordingly dismiss the Crown's appeal.
Appeal allowed, WILSON, LA FOREST and L'HEUREUX‑DUBÉ JJ. dissenting.
Solicitor for the appellant: The Attorney General for Ontario, Toronto.
Solicitors for the respondent: Pinkofsky, Lockyer, Kwinter, Toronto.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.