Protection Against Self Incrimination

Section 13 of the Charter of Rights and Freedoms guarantees that a witness who testifies in any proceeding 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.

What is the Right of Protection Against Self-Incrimination?

Section 13 of the Charter states that a witness who testifies in any proceeding 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.

In criminal trials, both the Crown and defence may subpoena witnesses to testify. When an individual receives a subpoena to appear in court, they must appear as directed, or they may be charged with a criminal offence. In some cases, the questions asked of the witness may implicate them in criminal activity. To encourage witnesses to testify truthfully while still protecting their right against self-incrimination, section 13 ensures that any self-incriminating evidence provided by the witness cannot be used against the witness later, unless it is being used to prove perjury or the giving of contradictory evidence. Section 13 of the Charter applies in both civil and criminal proceedings.

The Crown is prohibited from using self-incriminating statements provided by the witness during testimony. If the Crown wishes to charge the witness with an offence related to their testimony, they must gather new and fresh evidence to prosecute the individual.

Example

Person A is on trial for murder. Person B is subpoenaed to testify at trial regarding a drug deal that occurred just before the murder. Person B testifies that he was at the scene of the crime and witnessed the murder. He indicates that he had been selling narcotics to person A just before person A killed the victim. Section 13 ensures that person A’s statements regarding drug trafficking cannot be used to prosecute him.

When is the Right Triggered?

The right is triggered when the government attempts to use statements provided by a witness during testimony to prosecute the witness for crimes related to their testimony. The right is triggered when the witness becomes an accused. Section 13 will only protect statements made in a previous proceeding, and only where the statements were incriminating.

Cases

R. v. Dubios, [1985] 2 SCR 350

In R. v. Dubios, the Supreme Court of Canada indicated that section 13 will protect against testimony from an initial trial being used in a subsequent trial on the same matter, where a new trial is ordered on appeal.

This means that if an accused testifies at their own trial and a new trial is subsequently ordered because of issues with the first trial, the accused’s testimony from the first trial cannot be used against them in the second trial, even though both trials were about the same incident.

R. v. Nedelcu, [2012] 3 SCR 311

In the case of R. v. Nedelcu, the Supreme Court of Canada stated that an accused cannot invoke the protections of section 13 where they willingly provided testimony to further their own self-interest. The Court indicated that where an individual wishes to invoke the protections of section 13, they must show that they

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