Criminal defence lawyers in Calgary and elsewhere often represent witnesses who may be compelled to give incriminating answers to questions posed during examination in Court.
Of course, any answer given by the accused in relation to the offence(s) charged is admissible against his or her interest in the court proceeding, but what of incriminating answers given by the accused in relation to matters not forming the subject matter of the charge(s)? For example, imagine a defence of alibi, where the accused asserts that he or she could not have been committing the crime in question because he or she was committing a different crime, at the same time, at a completely different place. Can the the Crown lay a charge based solely on the accused's testimony in one proceeding and use it in another. The answer is "no".
The issue of “criminating” answers in Court, however, usually arises in the context of witnesses called by a party to the litigation.
It is not unusual for criminal lawyers to discover who actually committed the offence for which the accused has been charged. The question is, how does the law protect a witness who could possibly exonerate the accused but in so doing, will implicate him or herself?
Answer: Section 5 of the Canada Evidence Act and Section 13 of the Canadian Charter of Rights and Freedoms.
CANADA EVIDENCE ACT AND THE CHARTER
Section 5 of the Canada Evidence Act (CEA) is effectively an adjunct of section 13 of the Canadian Charter of Rights and Freedoms. Also, both section 5 of the CEA and section 13 of the Charter are effectively an adjunct of the Charter section 7 right to silence. The basic principle underlying the protections is that all witnesses should feel free to testify openly and honestly in Court without fear that the their answers could be used to hurt them in a future proceeding.
On its own, section 5 of the Canada Evidence Act is a nearly impregnable shield against self-incrimination when a witness answers questions in Court. It reads as follows:
(1) No witness shall be excused from answering any question on the ground that the answer to the 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 on 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 the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible 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 that evidence or for the giving of contradictory evidence.
Section 13 of the Charter further strengthens the protection by guaranteeing it even where section 5 of the Canada Evidence Act has not been specifically invoked. Section 13 extends the protection thus:
A witness who testifies in any proceeding has the right not 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.
Notice that I qualified the protection with the word "nearly". I did so to highlight that if the witness lies under oath and commits the offence of perjury, those answers may be used to incriminate. Additionally, if a witness was to give inconsistent answers from one proceeding to the next, the answers from the first proceeding may be used to show inconsistencies in another proceeding. These limits exist to ensure that a witness cannot avail him or herself of the protection when the evidence is false or inconsistent.
As an aside, this Calgary criminal defence lawyer is often quite perplexed that the Crown does not prosecute the witnesses it presents for perjury when they clearly commit the crime. By way of example, in the case of DB, the Crown's essential witness admitted to perjury in response to questions in cross-examination. The Crown was prepared to rely upon the evidence of this unsavoury witness to secure a conviction against a presumptively innocent person, yet it was not prepared to prosecute this admitted liar after he perjured himself in Court. This is but one example.
WHY IS THIS AN IMPORTANT TOPIC?
Section 5 of the Canada Evidence Act, Section 13 of the Charter and the protections they afford are important because criminal defence lawyers must often wrestle with the fact that their client didn’t commit the offence and in a rare number of cases, may have discovered the actual perpetrator of the crime. Not surprisingly, the actual perpetrator of the crime may not be a cooperative witness for a variety of reasons, including the fact that he or she has a “right to silence” and does not wish to incriminate him or herself in the commission of an offence. This situation presents a serious difficulty for the accused and his or her defence lawyer, for if the witness is not cooperative, that witness may be more damaging to the defence case.
In these circumstances, the first priority is to secure “independent legal advice” for the witness perpetrator.
WHAT IS INDEPENDENT LEGAL ADVICE
Independent legal advice is simply that which is given by a lawyer who has no stake in the litigation. For example, independent legal advice should be from a lawyer who is not part of the accused’s lawyer’s law firm or defence team. Independent legal advice should be from a lawyer who has no relationship with the case before the Court. Finally, independent legal advice should occur under strict solicitor-client conditions, without interference from the accused or his/her lawyer.
Of course, proper “independent legal advice” will involve a conversation about section 5 of the Canada Evidence Act and section 13 of the Charter.
THE LIMITS OF THE PROTECTION
The limits of the Canada Evidence Act and Charter must be closely scrutinized by any lawyer giving independent legal advice.
Though criminating evidence given by a witness cannot be used to incriminate in “any other proceeding” it is important for the witness to understand that most proceedings are subject to the “open court” principle and thus can be consumed by members of the public, including media, police and other law enforcement agencies. Therefore, even though the evidence at the proceeding cannot be used against the witness (unless the witness commits perjury), savvy police officers can listen to the evidence any may conduct additional investigation based upon the information captured in court. For example, a witness may give information that he or she was not alone during the commission of the crime. A police officer could track down the other witness and may be able to illicit evidence from that person implicating the witness who testified in court. The takeaway is that even though witness testimony itself cannot be used to incriminate that witness in “any other proceeding”, the information may nevertheless provide direction for additional police investigation that could uncover other evidence capable of implicating the witness.
IF YOU NEED INDEPENDENT LEGAL ADVICE CALL DAVID CHOW
For all of the aforementioned reasons, it is very important for anybody who intends on testifying to crime in Court to obtain comprehensive independent legal advice. David Chow is an experienced Calgary criminal lawyer who is routinely retained to give independent legal advice. This is one area where David Chow does not offer a free consultation; for the request for independent legal advice is a serious task, often requiring a fulsome review of disclosure, along with a time consuming interview of the client. David Chow is a full service Alberta criminal lawyer with his main office located in Calgary.