Not Forced to Testify

Not Forced to Testify

Section 11(c) of the Charter of Rights and Freedoms guarantees everyone the right not to be compelled to be a witness in a proceeding against that person in respect of the offence. This means that an individual cannot be forced to provide testimony that may incriminate them. In a practice, this means that an accused person cannot be forced to testify at their own trial.

What is the Right not to be Compelled to be a Witness in Proceeding Against that Person in Respect of the Offence?

In criminal trials, both the Crown and defence counsel have the ability to compel witnesses to appear at trial and testify. This is accomplished through a subpoena. A subpoena is a court order requiring a particular person to attend court and testify on a particular date. An individual who receives a subpoena must appear on the date indicated in the order and provide testimony. If they do not, they may be charged with a criminal offence or may be arrested and brought to court as a material witness.

Section 11(c) of the Charter protects this from happening to individual’s accused of a crime. The section prohibits the Crown from compelling the accused to testify at their own trial. This is part of the right to remain silent.

The Supreme Court has interpreted this section of the Charter to apply only to an individual being compelled in their own case. This means that an individual may be forced to testify against a co-accused that is being tried in a separate trial regarding the same incident the accused is on trial for.


Person A is arrested with person B for trafficking narcotics. Person A is charged separately from person B and both individuals will have separate trials, however the facts of each case are the same and borne out of the same incident. Person A cannot be compelled to testify at person A’s trial and person B cannot be compelled to testify at person B’s trial. However, person A can be compelled to testify at person B’s trial and person B can be compelled to testify at person A’s trial.

If person A and person B are charged together as co-accused and are having one joint trial, neither person can be compelled to testify at the trial.

When is the Right Triggered?

An individual’s section 11(c) Charter right is triggered once they are charged with a criminal offence. The right remains in effect until the case against the accused is complete.


Martineau v. M.N.R, [2004] 3 SCR 737

In the case of Martineau v. M.N.R., the Supreme Court of Canada discussed section 11(c) of the Charter in relation to other proceedings in which an individual is compelled to provide information that may be self-incriminating. The appellant in the case attempted to argue that section 11(c) protected him from having to participate in an examination for discovery related to a forfeiture order issued against him under the Customs Act.

The Supreme Court dismissed the appeal stating that section 11(c) did not apply. The Court laid out three conditions that must be met for section 11(c) to apply. The individual benefiting from protection must have been compelled as a witness, in proceedings against themselves in respect to the offence for which they have been charged. In short, they are being compelled to testify at their own trial.

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