The Privilege Against Self-Incrimination: Too Strong, Too Weak, or Both?

Canadian Criminal Law Review, Vol. 9, pp. 369-387, 2005

19 Pages Posted: 12 Jul 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Erica Bussey

Ontario Superior Court of Justice

Date Written: 2005

Abstract

Section 13 of the Charter provides 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." As currently interpreted, this provision permits the Crown to cross-examine the accused on his testimony from another proceeding for the limited purpose of impeaching his credibility, yet prevents the Crown from using the accused's testimony from his own previous trial for any other purpose. The authors argue that this interpretation of section 13 is both too strong and too weak. It is too strong in that it enables the accused to try out different defences in different trials without the trier of fact being given an opportunity to reconcile the differences; yet it is too weak in that the distinction between "incriminating" and "credibility-attacking" uses of the accused's testimony from other proceedings is too frail to be sensibly applied. The authors illustrate the difficulties generated by the current interpretation of section 13 through a discussion of the decision in R. v. Henry (2003), 179 C.C.C. (3d) 307 (B.C. C.A.). Finally, the authors recommend that section 13 should be reinterpreted so that the admissibility of the accused's prior testimony would not depend on the distinction between incrimination and credibility, but that the accused's previous trial on the same offence would not be considered "other proceedings". Under this reinterpretation, the Crown would be unable to use the accused's prior testimony from other proceedings for any purpose, but would be free to use the accused's testimony from a previous trial on the same charge for any purpose.

Keywords: self-incrimination, credibility, Henry, admissibility, prior testimony, previous trial

Suggested Citation

Stewart, Hamish and Bussey, Erica, The Privilege Against Self-Incrimination: Too Strong, Too Weak, or Both? (2005). Canadian Criminal Law Review, Vol. 9, pp. 369-387, 2005, Available at SSRN: https://ssrn.com/abstract=1639159

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Erica Bussey

Ontario Superior Court of Justice

Toronto, Ontario
Canada

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