(McLachlin C.J. and Major, Bastarache, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)
In their retrial on a charge of first degree murder the appellants told a different story under oath than they had five years earlier at their first trial on the same charge. They were cross-examined at the subsequent trial on these prior inconsistent statements. They were again convicted of first degree murder. They claim this use of prior statements violated their constitutional right against self-incrimination guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms.
The right against self-incrimination is of course one of the cornerstones of our criminal law. The right to stand silent before the accusations of the state has its historical roots in the general revulsion against the practices of the Star Chamber, and in modern times is intimately linked to our adversarial system of criminal justice and the presumption of innocence. Section 13 gives constitutional protection to a more specific privilege against testimonial self-incrimination. In R. v Dubois,  2 S.C.R. 350, the Court stated at p. 358 that
.... 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 seems a long stretch from the important purpose served by a right designed to protect against compelled self-incrimination to the proposition advanced by the appellants in the present case, namely that an accused can volunteer one story at his or her first trial, have it rejected by the jury, then after obtaining a retrial on an unrelated ground of appeal volunteer a different and contradictory story to a jury differently constituted in the hope of a better result because the second jury is kept in the dark about the inconsistencies.
The protective policy of s. 13 must be considered in light of the countervailing concern that an accused, by tailoring his or her testimony at successive trials on the same indictment, may obtain through unexposed lies and contradictions an unjustified acquittal, thereby bringing into question the credibility of the trial process itself. Effective cross-examination lies at the core of a fair trial: R. v Seaboyer,  2 S.C.R. 577, at p. 608; R. v Osolin,  4 S.C.R. 595, at p. 663; R. v Shearing,  3 S.C.R. 33, 2002 SCC 58, at para. 76; R. v Lyttle,  1 S.C.R. 193, 2004 SCC 5, at para. 41. Catching a witness in self-contradictions is one of the staples of effective cross-examination.
Having said that, there are observations in the Court’s previous s. 13 jurisprudence that can fairly be said to fuel the appellants’ argument (none of which escaped their counsel’s skilful attention). It is therefore necessary to return to the foundational case of Dubois and trace the subsequent jurisprudence to clarify the role and function of s. 13, and to explain why the appellants’ interpretation of s. 13 overshoots its purpose, and why it must therefore be rejected. The appeals, in the result, will be dismissed.
The present case arises out of a botched “rip-off” of a marijuana-growing operation (“grow-op”) at Port Coquitlam, British Columbia. The appellants admit they carried out the rip-off, stealing 170 marijuana plants, in the course of which the in-house caretaker of the grow-op was murdered. He was suffocated by 24 feet of duct tape being wound around his head, blocking the passage of air to his nose and mouth. The appellants admit their involvement. They accept culpability for manslaughter. At issue is whether the proper verdict is manslaughter or murder.
The Crown’s case rested on both physical evidence and out-of-court statements by both appellants to undercover police officers. In accordance with Dubois, the Crown did not attempt to file at the retrial as part of its case-in-chief the testimony of the appellants at their first trial.
At the close of the Crown’s case on the retrial, both appellants decided to testify. As he had at the first trial, Henry again claimed that he was intoxicated, but other than remembering being intoxicated he now admitted to no significant recollection of what happened. Riley testified in chief that while he had “on occasion” lied at the first trial he now had a clear recollection that he was not in the room when the fatal winding took place. He argued that his candour in admitting previous falsehoods was a badge of present truthfulness. Riley’s defence strategy at the retrial thus incorporated his testimony at the previous trial. Henry’s defence was more simple. Not only did he claim to recall less at the second trial than he testified to at the first trial, at times he seemed to suggest that he did not even recall that an earlier trial had taken place. The Crown took the view that it was entitled to cross-examine both appellants on the testimony given at the prior trial for the purpose of impeaching their credibility, and did so, relying in this respect on R. v Kuldip,  3 S.C.R. 618. The defence says that such cross-examination even for the purpose of impeachment of credibility was unfair, but in any event that the distinction in these circumstances between the purposes of impeachment of credibility and incrimination is illusory. Reliance was placed on R. v Noël,  3 S.C.R. 433, 2002 SCC 67, and R. v Allen,  1 S.C.R. 223, 2003 SCC 18, to exclude the damaging inconsistencies. The Crown, for its part, says that the accused in volunteering their testimony at the second trial stepped outside the protection of s. 13, and that any observations to the contrary in the Court’s previous s. 13 jurisprudence should be reconsidered. Thus issue was joined on the proper scope of s. 13.
I pause at this juncture to observe that both parties view with scepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination. They agree on the problem but disagree about the solution. The appellants’ solution, relying on Noël, is that unless the statements used to contradict the present testimony were innocuous when made at the first trial, and still innocuous at the second trial, they should be altogether excluded, i.e. even for the limited purpose of challenging credibility. They wish to see a roll-back of Kuldip. Otherwise, they fear, the contradictions may well be used by the trier of fact for the forbidden purpose of incrimination. The Crown also recognizes the troublesome nature of the distinction but, relying on Kuldip, says that fair trial considerations absolutely require that the contradictions in the evidence of an accused be exposed. The Crown then goes further than Kuldip in saying that the trier of fact should be able to make of the contradictions what it wishes, including drawing an inference of guilt, and indeed that a realistic appraisal of the trial process permits no other conclusion, human nature being what it is.
It has long been recognized that the distinction between credibility and incrimination in this particular context is “troublesome” (as Lamer C.J. described it in Kuldip, at p. 635) and “difficult” (as Martin J.A. described it in Kuldip when the case was before the Ontario Court of Appeal ((1988), 40 C.C.C. (3d) 11, at p. 23). As both the defence lawyers and the prosecutors agree that a problem exists, the question is: what should be done about it, having regard to the 20 years of experience since Dubois?
On October 17, 2001, a jury convicted the two appellants of the first degree murder of Timothy Langmead, who had operated a marijuana “grow-op” at Port Coquitlam, B.C. In the course of a “rip-off” of that operation by the appellants, Langmead was tied to a chair, had duct tape wound around his mouth and nose, and suffocated. At their first trial in 1996 the appellants admitted their involvement in the unlawful confinement that led up to his death, but they pleaded diminished responsibility because of intoxication.
The appellant Riley and the victim Langmead were acquaintances. They had both done work over the years for the same marijuana dealer. In fact Riley had helped set up the marijuana grow-op in Port Coquitlam that was being tended by Langmead on the night Langmead was killed. Riley claimed that he was owed $5,000 to $10,000 by the drug dealer for wiring a bypass of the hydro meter and other services. On the night of June 8, 1994, he and two accomplices planned to help themselves to some marijuana plants by way of compensation.
Riley and the appellant Henry knew each other from high school in the B.C. Interior. The two of them, along with another individual (Gabe Abbott, who was not charged) drove to Langmead’s house. They said they expected that Langmead would not be home, but he was, or came home shortly after they entered the house. Riley knew that Langmead recognized him from their earlier dealings. Although the details are not clear, it seems there was some struggle between Riley and Langmead. Once subdued, Langmead was put in a chair and his arms secured by rope or duct tape. He began to yell. Tape was applied to his mouth. The question was whether Henry or Riley applied the fatal windings of 24 feet of duct tape to Langmead’s mouth and nose, or whether it was both of them, and with what intent. After the killing, the three intruders stole marijuana plants, a guitar, a VCR and a van. They took Langmead’s body with them. They drove a couple of hours to the Alexandra Bridge in the Fraser Canyon, threw the body into the river and rolled the van over a cliff. Nine days later, Langmead’s body was found floating downstream. The duct tape was still wound around his head.
The police mounted an undercover operation and obtained incriminating statements from both of the appellants boasting of responsibility for the death of Langmead. After Riley’s arrest, he made some further admissions to the police.
Both appellants were convicted of first degree murder, but in 1999 the British Columbia Court of Appeal held that the trial judge had failed to properly instruct the jury on the defence of intoxication. A new trial was ordered: (1999), 117 B.C.A.C. 49, 1999 BCCA 22.
At the second trial Henry continued to advance the defence of intoxication but Riley largely resiled from it, seeking instead to use his greater recollection of events to push the responsibility onto Henry. He testified to having assisted in securing Langmead’s mouth with a few small pieces of tape only to stop him yelling, and said that thereafter Henry was alone with Langmead. Both men, through their counsel, again admitted criminal responsibility for manslaughter. The only live issue at the second trial, as at the first trial, was whether it was a case of murder.
1. Relevant Enactments
Canadian Charters of Rights and Freedoms
Canada Evidence Act, R.S.C. 1985, c. C-5
2. Judicial History
(a) The Trial Judge’s Instructions on the Use of Prior Inconsistent Statements
The trial judge instructed the jury that they could use a witness’s prior inconsistent statement whether given “under oath or otherwise” to assess the credibility of that witness’s testimony, but that they could not use the prior statement for proof of its truth unless the witness adopted the statement as true. There was no objection by defence counsel to this portion of the charge.
Dealing specifically with references in the testimony to “another proceeding”, the trial judge instructed the jury that they were not to speculate as to the nature or outcome of those proceedings. He also reminded the jury that Riley had admitted to lying under oath, and that this was a factor to be considered in assessing his credibility as a witness.
(b) The British Columbia Court of Appeal ((2003), 186 B.C.A.C. 106, 2003 BCCA 476)
A three-judge panel of the British Columbia Court of Appeal divided on the scope to be given to this Court’s decision in Noël. In Southin J.A.’s analysis, Noël stands for the proposition that the testimony of a witness tending to prove him guilty of an offence, if given on someone else’s trial, could not be used at his own subsequent trial for that same offence. The protection did not apply to the retrial of the same accused on the same charge.
Newbury J.A. took the view that on the facts both appellants had “opened the door” in their own testimony to being cross-examined on the prior inconsistent statements given at the first trial. The trade-off between the right of the Crown to compel a witness to answer questions _ the response to which might incriminate him _ and the right of an accused qua witness not to incriminate himself, does not apply where he has chosen to testify regarding previous incriminating statements given by himself in the first trial. Here the appellants’ testimony had not been compelled; rather, it was offered in the second trial in an apparent attempt to gain credibility. The Crown was entitled to cross-examine on that evidence, she held.
Hall J.A., dissenting, considered that Noël had narrowed the permissible ambit of cross-examination of an accused in a retrial of the same charge. On this view the cross-examination at the second trial of both appellants infringed the prohibition imposed by s. 13 of the Charter. The Crown used portions of Riley’s previous testimony to show that he was more of a direct participant in the death of the victim than he had acknowledged in his testimony-in-chief at the second trial. The Crown’s cross-examination of both appellants on the prior inconsistent statements was not just directed to credibility. Its effect was to incriminate them as being active participants in the murder. This was contrary to the principles laid down in Noël and Allen. He was not persuaded that the verdicts concerning both men would necessarily have been the same absent the error. He would have allowed the appeals of both appellants and ordered a third trial on the same charge. The appeal thus comes to us as of right based on Hall J.A.’s dissent on the proper scope of Noël and Allen.
The consistent theme in the s. 13 jurisprudence is that “the purpose of s. 13 .... is to protect individuals from being indirectly compelled to incriminate themselves” (Dubois, at p. 358, and reiterated in Kuldip, at p. 629). That same purpose was flagged in Noël, the Court’s most recent examination of s. 13, by Arbour J., at para. 21:
Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony.
There is thus a consensus that s. 13 was intended to extend s. 5 of the Canada Evidence Act to give further and better effect to this purpose. As McIntyre J. pointed out in Dubois, in reasons that dissented in the result but not on this point, s. 13 “does not depend on any objection made by the witness giving the evidence. It is applicable and effective without invocation, and even where the witness in question is unaware of his rights” (p. 377). Further, s. 13 “is not limited to a question in respect of which a witness would have been entitled to refuse to answer at common law and its prohibition against the use of incriminating evidence is not limited to criminal proceedings. It confers a right against incrimination by the use of evidence given in one proceeding in any other proceedings” (p. 377). Noël, our most recent pronouncement, also agreed that s. 13 was intimately linked (though not necessarily limited to) the role and function traditionally served by s. 5 of the Canada Evidence Act.
Despite these broad areas of agreement, the Court’s s. 13 jurisprudence bristles with observations that enable the appellants to argue with a measure of indignation that notwithstanding the fact they were not (and could not be) compelled to testify at their first trial, they ought nevertheless to have been protected as volunteers at their second trial from exposure of the contradictory testimony they gave at the first trial, despite the misleading impression such non-disclosure would have left with the jury. The search for truth, they say, is limited by constitutional considerations. The appellants rely in particular on observations made in Noël, even though Noël did not involve the retrial of an accused on the same indictment, but the trial of an accused whose previous testimony had been compelled at the trial of somebody else on charges related to the same subject matter. Noël was a classic application of s. 5(2) of the Canada Evidence Act, which in fact had wisely been invoked on Noël’s behalf at the earlier trial of that other person, who happened to be his brother. It is therefore desirable to retrace the essentials of the jurisprudence from Dubois to Noël to determine whether the appellants’ position on s. 13 is well founded.
1. The Scope of Section 13 of the Charter
Section 13 of the Charter precludes “incriminating evidence” given in one proceeding from being “used to incriminate that witness in any other proceedings”. Incriminating evidence means “something ‘from which a trier of fact may infer that an accused is guilty of the crime charged’”; Kuldip, at p. 633. The meaning of this protection in the context of a retrial of an accused on the same charge was first considered in Dubois. The question was phrased in that case by Lamer J. (as he then was): “[w]hen a new trial is ordered on the same charge or on an included offence by a court of appeal, can the Crown adduce as evidence-in-chief the testimony given by an accused at the former trial?” (p. 353 (emphasis added)). Dubois was charged with second degree murder. At his first trial he admitted that he had killed the deceased but alleged justification. He was convicted, but successfully appealed the conviction and was granted a new trial on grounds of a misdirection to the jury. At the retrial, as part of its case-in-chief, the Crown read in Dubois’ testimony from the first trial over an objection by Dubois’ counsel based on s. 13 of the Charter. Dubois chose not to testify nor did he call any evidence. He was again convicted. The majority of our Court agreed that the testimony of the accused at the first trial could not be used by the Crown as part of its “case to meet” to incriminate the accused at the retrial on the same charge.
More specifically, Dubois concluded that the reference in s. 13 to “other proceedings” includes a retrial on the same indictment and that the term “witness” in s. 13 also applies to an accused testifying (voluntarily) in his or her own defence. Lamer J., for the majority, held that “given the nature and purpose of the [s. 13] right, which is essentially protection against self-incrimination, the issue of whether the testimony was compulsory or voluntary at the moment it was given is largely irrelevant. The focus of the right is on the second proceedings, the time at which the previous testimony is sought to be used, rather than the time at which it is given” (p. 361). At the second proceeding, however, Dubois was not a witness. He was exercising his absolute right not to testify at all. Therefore, as Lamer J. pointed out at p. 365: “I do not see how the evidence given by the accused to meet the case as it was in the first trial could become part of the Crown’s case against the accused in the second trial, without being in violation of s. 11(d) [the presumption of innocence] and to a lesser extent of s. 11(c) [the right not to be compelled to be a witness]”.
In my view, the same result would have followed if at the retrial in the present case the appellants had chosen not to testify. Whether or not the appellants had been voluntary witnesses at the earlier trial would have been, in that respect, irrelevant. At the second trial the testimony, had the Crown been permitted to file it as part of the case-in-chief, would have been compelled, and its use, on a purposeful interpretation of s. 13, prohibited.
Dubois was applied in R. v Mannion,  2 S.C.R. 272, where, as in the present case, the Crown attempted to use prior inconsistent statements in the cross-examination of an accused at a retrial. The accused was charged with raping a woman in Edmonton. Shortly thereafter, but before an arrest could be made, he left Edmonton heading for British Columbia. Whether or not his departure could give rise to an inference of guilt depended in part on whether he knew of the rape investigation before he left. At the first trial he said that when he spoke to a police officer before his departure, he had been told that the officer wanted to see him concerning a rape. At the second trial, no doubt sensing the danger, he changed his story to say that while he knew the officer wanted to speak with him, he understood it was about his work as a police informant on unrelated matters, and he was afraid to speak to the officer because he had not lived up to certain obligations. At the second trial, the accused was cross-examined on the different explanation he gave at the first trial, which the Crown submitted for the truth of its content. McIntyre J., for the Court, held that the cross-examination was improper. In doing so, however, he focussed on the purpose of the cross-examination (incrimination), rather than the purpose of s. 13 (protection against compelled self-incrimination). McIntyre J., with the unanimous support of his colleagues, accepted that the result of the holding in Dubois (in which he had dissented) dictated the outcome in Mannion. The distinction between Dubois’ status as a compelled witness at the second trial and Mannion’s status as a volunteer at both trials was not commented upon.
The Court returned to a purposive interpretation in Kuldip. The accused was charged with failing to remain at the scene of a car accident with the intent of escaping civil or criminal liability. At his first trial he volunteered that he had reported the accident to a constable at a police station in Toronto whom he identified as P.C. Brown. The Crown established that Brown was not on duty on the day in question. At the retrial, the accused again chose to testify, but changed his story to accommodate that awkward fact. Lamer C.J. for the Court held that the accused was properly confronted with his prior inconsistent statement [p. 636]:
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.
In other respects, Kuldip followed where Mannion had led. Lamer C.J. stated that the questions raised in the appeal were “identical to those examined by this Court in Mannion” (p. 628). The only difference in his view was that in Mannion, the purpose of the cross-examination was to incriminate, whereas in Kuldip it was to impeach credibility. A successful impeachment would do no more than nullify the accused’s testimony. The Crown could not obtain a conviction except on the basis of other evidence.
Of interest in Kuldip is the example given by Lamer C.J., at p. 634, of a witness at a murder trial who testifies that the accused could not have murdered the victim in Ottawa because on the day in question they were both in Montréal doing a bank robbery. If the witness were later charged with the bank robbery in Montréal, and changed his story at his trial to say that in fact he was in Ottawa that day, Lamer C.J. said it would not infringe s. 13 to impeach credibility using the earlier admission (despite the fact the statement was incriminating both when given at the earlier trial and when used at the later trial). However the trial judge must warn 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” (pp. 634-35). As will be seen, the facts of the example anticipate, to some extent, the situation in Noël.
Kuldip thus qualified Mannion. If the prior testimony is used at the retrial to incriminate, Mannion says s. 13 is violated. If the prior testimony is used to impeach credibility, and thereby to nullify the accused’s retrial testimony, Kuldip says s. 13 permits it. As Lamer C.J.’s example of the bank robber shows, however, the distinction poses problems. There can be few triers of fact, whether judge or jurors, who would not have found the prior admission of the accused, that on the day in question he was in Montréal robbing a bank, probative on the issue of guilt of that offence.
Kuldip was endorsed by Noël, which applied the s. 13 jurisprudence to the case of an accused who at the previous trial was not the accused but a mere witness at somebody else’s trial (as in Lamer C.J.’s bank robbery example in Kuldip). The accused had testified as a compellable witness during his brother’s trial about his complicity in the senseless strangulation of a nine-year-old boy. He was subsequently charged with the murder, but at his own trial he denied any such complicity. The Crown put to him statement after statement that he had made at the earlier trial, which he acknowledged having made, and which formed an important element (if it was not virtually conclusive) in establishing his guilt. In that context, and recognizing that when testifying as a witness at his brother’s trial Noël had claimed the protection of s. 5(2) of the Canada Evidence Act, Arbour J. emphasized the quid pro quo “when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination” (emphasis added) and held that “the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony” (para. 21). The emphasis in Noël on the quid pro quo reinforces the link between s. 13 of the Charter and s. 5 of the Canada Evidence Act and the whole issue of compelled testimony. It must be recognized that a witness who was also the accused at the first trial is at both trials a voluntary rather than a compelled witness, and therefore does not offer the same quid pro quo. (The notion that an accused who volunteers testimony can simultaneously object to answering questions whose answers may tend to incriminate him or her is a difficult concept. The whole point of volunteering testimony is to respond to the prosecution’s case. Even answers to his or her own counsel’s questions may tend to incriminate.)
Despite the difference between the trial of an accused who was a compelled witness in another “proceeding” and the retrial of an accused who volunteered evidence at both the first and second trials, the appellants here rely on the observation of Arbour J. at para. 4 of Noël:
When an accused testifies at trial, he cannot be cross-examined on the basis of a prior testimony unless the trial judge is satisfied that there is no realistic danger that his prior testimony could be used to incriminate him. The danger of incrimination will vary with the nature of the prior evidence and the circumstances of the case including the efficacy of an adequate instruction to the jury.
The facts of Noël provide an interesting parallel to Lamer C.J.’s bank robbery example in Kuldip. In Lamer C.J.’s example, the prior testimony was considered admissible for impeachment, although it was undeniably incriminatory when given, and would almost certainly have been taken as incriminatory if allowed into evidence at the second trial. In Noël, the Crown’s incriminatory purpose was unmistakable. Yet in both the bank robber example and in Noël itself the prior testimony was compelled, and its use thus posed a serious problem not only under the Dubois analysis of s. 13 but under s. 11(c) of the Charter and s. 5(2) of the Canada Evidence Act. (For present purposes, evidence of compellable witnesses should be treated as compelled even if their attendance was not enforced by a subpoena.)
Kuldip can be seen as an attempt by the Court to put the brakes on Mannion, but in its unwillingness to reconsider its reasoning in Mannion, the Court was required to resort to reliance on the sometimes difficult distinction between the purposes of impeachment of credibility and incrimination. Although this distinction is well established in the law (see e.g. R. v Calder,  1 S.C.R. 660, at para. 25), its practicality in this particular context is frequently questioned. It is worth setting out in full what was said by Arthur Martin J.A., writing in Kuldip, when it was before the Ontario Court of Appeal [p. 23]:
Furthermore, in my view, where the prior evidence is used ostensibly to impeach the accused’s credibility only, it nevertheless does assist the Crown in its case and, in a broad sense, may help to prove guilt. It is often 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. If the court concludes on the basis of the accused’s contradictory statements that he deliberately lied on a material matter, that lie could give rise to an inference of guilt.
In Martin J.A.’s view, successful invocation of s. 5(2) of the Canada Evidence Act ought to exclude the prior testimony of the witness for any purpose, including impeachment of credibility (p. 20). Arbour J., writing in Noël in the context of incriminating statements made by a current accused at the earlier trial of somebody else, agreed with this interpretation (paras. 31-33) except for her acceptance of Kuldip in the very limited case of statements innocuous when made at the first trial and still innocuous with respect to the issue of guilt at the second trial (paras. 30 and 45). This, she observed, is the only outcome consistent with the quid pro quo that “lies at the heart of s. 13” (para. 25), which should be interpreted in a manner “co-extensive with that of s. 5(2) of the Canada Evidence Act” (para. 34).
The controversial aspect of Noël lies in its obiter extending to an accused at a retrial on the same indictment the identical protection enjoyed by witnesses who are compelled to testify at the trial of somebody else (or in another “proceeding”), and who can therefore invoke both s. 13 of the Charter and s. 5(2) of the Canada Evidence Act. Noël decides that in both cases, the root of this protection lies “in the quid pro quo” (para. 22) under which as a matter of legislative policy, testimonial immunity at common law was exchanged in 1893 for a limited testimonial use immunity.
Noël was subsequently applied by this Court in Allen. That too was a case of an accused being confronted with prior testimony he had given as a witness at the trial of somebody else for the same murder. The Newfoundland Court of Appeal, O’Neill J.A. dissenting, found that the cross-examination was directed to credibility, and was therefore authorized by Kuldip: (2002), 208 Nfld. & P.E.I.R. 250, 2002 NFCA 2. Some of the prior compelled testimony used “to impeach” included statements that the accused had killed or thought he had killed the victim. In a brief judgment, this Court without much discussion applied Noël to find a s. 13 violation.
To recapitulate: Dubois was an attempt to compel testimony at a retrial; Mannion and Kuldip involved the use of prior voluntary testimony of an accused at the retrial; in Noël and Allen, the Crown attempted to use the compelled testimony of a witness at an earlier trial who had become the accused at the later trial. Despite this variation, in all of these cases except Kuldip, the prior testimony was excluded on the basis of s. 13 operating in combination with s. 11(c) of the Charter (and, in Noël, with s. 5(2) of the Canada Evidence Act). Clearly there has not been consistent adherence to the underlying purpose of s. 13, namely “to protect individuals from being indirectly compelled to incriminate themselves” (emphasis added) (Dubois, at p. 358; Kuldip at p. 629 and Noël, at para. 21).
2. Should the Court Reconsider Dubois?
The Attorney General of Canada submits that the Court should overrule Dubois and hold that s. 13 has no application to a retrial. The rationale underlying Dubois for extending s. 13 protection to an accused in a retrial, however, was because when a “new” trial is ordered the accused is entitled not to testify at all. Thus, to allow the Crown simply to file the testimony of the accused given at the prior trial (now overturned) would permit the Crown indirectly to compel the accused to testify at the retrial where s. 11(c) of the Charter would not permit such compelled self-incrimination directly. The Crown must prove its case without recruiting the accused to self-incriminate. As Lamer J. pointed out [p. 365],
the accused is being conscripted to help the Crown in discharging its burden of a case to meet, and is thereby denied his or her right to stand mute until a case has been made out.
[emphasis in original]
Dubois, to repeat, was an attempt to compel testimony. The result was correct and we should decline the invitation to revisit it.
3. Should the Court Reconsider Mannion?
While Mannion followed Dubois on the textual point that the words “other proceedings” in s. 13 include a retrial of the same accused on the same indictment, it did not ask the further question whether excluding cross-examination on the prior volunteered testimony would further the purpose of s. 13 identified in Dubois, namely “to protect individuals from being indirectly compelled to incriminate themselves” (p. 358 (emphasis added)). Mannion was under reserve at the same time as Dubois and, as stated, the Court seems to have concluded that the result in the latter dictated the outcome of the former.
In my view, the crux of the problem is this. In Dubois, the prosecution sought to pre-empt the right of the accused not to testify. The filing of the earlier testimony was compelled self-incrimination. In Mannion, there was no such compulsion. The accused freely testified at his first trial and freely testified at his second trial. The compulsion, which lies at the root of the quid pro quo which in turn lies at the root of s. 13, was missing. Experience in the 20 years since Dubois and Mannion were decided shows that taking our eye off the underlying purpose of s. 13 has given rise to a number of distinctions and sub-distinctions that in the end have proven unworkable. Indeed in Noël, as Fish J.A. pointed out when the case was before the Quebec Court of Appeal, the jury asked a question which clearly demonstrated their failure (or unwillingness) to grasp the distinction between use of prior statements for the impeachment of credibility and use of prior statements for the purpose of incrimination; see (2001), 156 C.C.C. (3d) 17, at paras. 169 and 173-74, and in this Court, at paras. 19-20.
In my respectful view, notwithstanding the strong Court that decided Mannion and the cases that followed it, we should hold that s. 13 is not available to an accused who chooses to testify at his or her retrial on the same indictment.
The Court’s practice, of course, is against departing from its precedents unless there are compelling reasons to do so:
R. v Salituro,  3 S.C.R. 654;
R. v Chaulk,  3 S.C.R. 1303;
R. v B.(K.G.),  1 S.C.R. 740, at pp. 777-83; and
R. v Robinson,  1 S.C.R. 683, at paras. 16-46.
Nevertheless, while rare, departures do occur. In Clark v Canadian National Railway Co.,  2 S.C.R. 680, it was said that “[t]his Court has made it clear that constitutional decisions are not immutable, even in the absence of constitutional amendment” (p. 704), and in the Charter context the Court in United States v Burns,  1 S.C.R. 283, 2001 SCC 7, effectively overturned the result (if not the reasoning) in Kindler v Canada (Minister of Justice),  2 S.C.R. 779, and Reference re Ng (Extradition) (Can.),  2 S.C.R. 858. In the area of human rights, important reappraisals were made in Central Alberta Dairy Pool v Alberta (Human Rights Commission),  2 S.C.R. 489 (overturning the reasoning in Bhinder v Canadian National Railway Co.,  2 S.C.R. 561), and Brooks v Canada Safeway Ltd.,  1 S.C.R. 1219 (overturning Bliss v Attorney General of Canada,  1 S.C.R. 183). The Court should be particularly careful before reversing a precedent where the effect is to diminish Charter protection.
I believe there are compelling reasons for declining to follow Mannion. The first, as discussed earlier, is that Mannion did not adopt an interpretation in line with the purpose of s. 13 spelled out in Dubois. Although Dubois had said that no distinction should be drawn between testimony that had been compelled or voluntary at the first trial, that comment was made in the context of an attempt to compel testimony at the second trial. The second reason is that the consequences of failing to return to the purpose of s. 13 have only emerged over time as the courts have struggled to work with the distinction between impeachment of credibility and incrimination in ways that, as the appellants’ invocation of Noël illustrates in the present case, become “unduly and unnecessarily complex and technical”: R. v Bernard,  2 S.C.R. 833, at p. 859. In Noël, it will be recalled, the Court identified permissible cross-examination by reference to testimony “innocuous” when made at the initial trial and “innocuous” when used at the retrial, opening up consideration of various combinations and permutations of statements innocuous/incriminating, incriminating/innocuous and incriminating/incriminating, an exercise in classification that when argued on a question by question basis can become both protracted and somewhat unpredictable, as an examination of the questions at issue in the present appeal illustrates.
The third reason, and I think the most important, is that the insistence that s. 13 has the same application in a retrial of the same accused on the same indictment as it does in a trial where the accused was formerly not an accused but a compellable witness has led to an unfair dilution of the s. 13 protection in the latter situation. Thus in the bank robbery example in Kuldip, the compelled testimony given as a witness at somebody else’s trial would virtually guarantee the bank robber’s conviction in his own subsequent prosecution. This is contrary to sound principle. Even though the bank robber was a compelled witness who had given quid pro quo testimony (as in Noël) at somebody else’s trial, he would receive no greater or lesser protection than an accused who had been under no such compulsion at the earlier trial (Kuldip and Mannion). The attempt to subject these very different situations to the same constitutional rule results in the end in a satisfactory solution for neither.
In Noël, the Court saw the unfairness of putting compelled testimony to the accused and held that the Crown would be permitted to cross-examine an accused on prior testimony only [para. 54]
when there is no possibility that the jury could use the content of the prior testimony to draw an inference of guilt, except to the limited extent that a finding that the accused has been untruthful under oath could be damaging to his defence.
The “no possibility” test significantly raises the bar set in Kuldip, yet one can readily see the need for such a stringent test on the facts of Noël, where the prior statements were made by a compelled witness who had invoked s. 5(2) of the Canada Evidence Act. However, the stringency of the “no possibility” test in Noël does not provide a satisfactory resolution in the case of a retrial of the accused who volunteers testimony at both trials and then seeks to shelter self-serving inconsistencies behind a Charter barrier. While the appellants argue (with some justification) that such an immunity flows from the Mannion line of cases, such a result is completely inconsistent with a purposive reading of s. 13. For these reasons, I believe Mannion should not be followed. Accused persons who testify at their first trial and then volunteer inconsistent testimony at the retrial on the same charge are in no need of protection “from being indirectly compelled to incriminate themselves” in any relevant sense of the word, and s. 13 protection should not be available to them.
4. Should the Court Reconsider Kuldip?
Insofar as Kuldip permitted cross-examination of the accused on the inconsistent testimony he volunteered at his first trial, Kuldip should, of course, be affirmed. However, insofar as the Court felt compelled by Mannion to narrow the purpose of the cross-examination to the impeachment of credibility, and to deny the probative effect of the answers on the issue of guilt or innocence, it seems to me our decision today not to follow Mannion renders such restrictions no longer operative. If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter does not preclude the trier of fact from drawing the common sense inference.
5. Should the Court Reconsider Noël?
Noël is a classic example of prosecutorial abuse of the very “bargain” s. 13 was designed to enforce. Noël was not on trial at the time he gave the testimony subsequently relied upon by the Crown. He was a compellable witness who at common law could have refused to answer the Crown’s questions that tended to show his guilt. He was compelled by s. 5(1) of the Canada Evidence Act to answer the incriminating questions, and in consequence he invoked the protection of s. 5(2). When s. 5(2) says “the answer so given shall not be used or admissible in evidence”, it means not to be used for any purpose, including the impeachment of credibility. We should affirm the correctness of the result in Noël on its facts.
I would go further. Even though s. 13 talks of precluding the use of prior evidence “to incriminate that witness”, and thus implicitly leaves the door open to its use for purposes other than incrimination such as impeachment of credibility (as Kuldip accepted), experience has demonstrated the difficulty in practice of working with that distinction. If, as Noël held, and as Arthur Martin J.A. observed in Kuldip, the distinction is unrealistic in the context of s. 5(2) of the Canada Evidence Act, it must equally be unrealistic in the context of s. 13 of the Charter. Accordingly, by parity of reasoning, I conclude that the prior compelled evidence should, under s. 13 as under s. 5(2), be treated as inadmissible in evidence against the accused, even for the ostensible purpose of challenging his or her credibility, and be restricted (in the words of s. 13 itself) to “a prosecution for perjury or for the giving of contradictory evidence”.
6. Should the Court Reconsider Allen?
Allen was a straightforward application of Noël to an accused who was confronted with prior compelled testimony given at the trial of somebody else. He had given his quid pro quo. The decision was correct.
7. The Significance of Obiter Dicta in Noël
The Attorney General of Ontario, in particular, argued more strenuously about some of the obiter commentary in Noël than about its actual result, such as Arbour J.’s suggestion that circumstances enabling a Kuldip type cross-examination might be “rare” (para. 60). The Attorney General worries that this sort of obiter will be seen as binding on trial courts. I do not think this “concern” is plausible. The comment was neither part of the legal analysis nor a direction to trial courts. It was simply an observation by an experienced judge. More significantly, the respondent and the intervening attorneys general contend that everything said in Noël about the application of s. 13 to an accused in a retrial on the same charge is obiter. While I agree that every judgment has to be read in light of the facts the Court was dealing with, and that Noël was emphatically not a case of a retrial of the same accused on the same indictment, nevertheless I believe the submissions of the attorneys general presuppose a strict and tidy demarcation between the narrow ratio decidendi of a case, which is binding, and obiter, which they say may safely be ignored. I believe that this supposed dichotomy is an oversimplification of how the common law develops.
The traditional view expressed by the Earl of Halsbury L.C. (in Quinn v Leathem,  A.C. 495 (H.L.)) was that “a case is only an authority for what it actually decides”, and that (ibid, at p. 506)
every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.
The caution was important at the time, of course, because the House of Lords did not then claim the authority to review and overrule its own precedents. This is no longer the case. Even in the time of the Earl of Halsbury L.C., however, the challenge was to know how broadly or how narrowly to draw “what it actually decides”. In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”). The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”: Bertha Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234. Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case. In those circumstances, the Court nevertheless intended that effect be given to the broader analysis. In R. v Oakes,  1 S.C.R. 103, for example, Dickson C.J. laid out a broad purposive analysis of s. 1 of the Charter, but the dispositive point was his conclusion that there was no rational connection between the basic fact of possession of narcotics and the legislated presumption that the possession was for the purpose of trafficking. Yet the entire approach to s. 1 was intended to be, and has been regarded as, binding on other Canadian courts. It would be a foolhardy advocate who dismissed Dickson C.J.’s classic formulation of proportionality in Oakes as mere obiter. Thus if we were to ask “what Oakes actually decides”, we would likely offer a more expansive definition in the post-Charter period than the Earl of Halsbury L.C. would have recognized a century ago.
From time to time there have been statements of some members of this Court that have been taken to suggest that other courts are bound by this Court’s considered ruling on a point of law, even a point not strictly necessary to the conclusion. Most famously, in Sellars v The Queen,  1 S.C.R. 527, at p. 529, Chouinard J. resolved an issue respecting jury instructions by reference to an earlier decision of this Court and said:
.... this is the interpretation that must prevail.
As it does from time to time, the Court has thus ruled on the point, although it was not absolutely necessary to do so in order to dispose of the appeal.
This statement was perfectly understandable in context. So far as Chouinard J. was concerned, the Court of which he was a member had ruled on the point, and he proposed to be consistent and follow it. However, the “Sellars principle”, as it came to be known, was thought by some observers to stand for the proposition that whatever was said in a majority judgment of the Supreme Court of Canada was binding, no matter how incidental to the main point of the case or how far it was removed from the dispositive facts and principles of law; for varying views, see e.g.,
Re Haldimand-Norfolk Regional Health Unit and Ontario Nurses’ Association (1981), 120 D.L.R. (3d) 101 (Ont. C.A.);
R. v Sansregret,  1 W.W.R. 720 (Man. C.A.);
R. v Barrow (1984), 65 N.S.R. (2d) 1 (S.C.);
Clark v Canadian National Railway Co. (1985), 17 D.L.R. (4th) 58 (N.B.C.A.);
Scarff v Wilson (1988), 33 B.C.L.R. (2d) 290 (C.A.);
Moses v Shore Board Builders Ltd. (1993), 106 D.L.R. (4th) 654 (B.C.C.A.);
Friedmann Equity Developments Inc. v Final Note Ltd. (1998), 41 O.R. (3d) 712 (C.A.);
Cardella v Minister of National Revenue (2001), 268 N.R. 168, 2001 FCA 39.
Other cases are more critical:
R. v Chartrand (1992), 74 C.C.C. (3d) 409 (Man. C.A.);
R. v Hynes (1999), 26 C.R. (5th) 1 (Nfld. C.A.);
R. v Vu (2004), 184 C.C.C. (3d) 545, 2004 BCCA 230;
McDiarmid Lumber Ltd. v God’s Lake First Nation (2005), 251 D.L.R. (4th) 93, 2005 MBCA 22.
Some of these comments simply reflect the practical consideration that disregarding the majority view of this Court on a point of law, even if it was not strictly necessary for the disposition of the case in which it was expressed, may just precipitate a successful appeal. Other comments suggested that the “Sellars principle” had ripened into a new doctrine of law. This extension was challenged in “Ratio Decidendi and Obiter Dicta” (1993), 51 Advocate (B.C.) 689, by the Honourable Douglas Lambert, writing extra-judicially, who canvassed the case law and concluded that at least some of the confusion was due to an error translating Chouinard J.’s opinion from French to English as well as by an overstatement by the writer of the English headnote in Sellars itself. More recently, Professor M. Devinat, in “L’Autorité des obiter dicta de la Cour suprême” (1998), 77 Can. Bar Rev 1, suggested that some courts were only too willing to broaden the scope of the “Sellars principle” to lighten their own workload by minimizing what remained for them to decide. If Professor Devinat is correct, the effect would be to deprive the legal system of much creative thought on the part of counsel and judges in other courts in continuing to examine the operation of legal principles in different and perhaps novel contexts, and to inhibit or skew the growth of the common law. This would be a consequence totally unforeseen and unintended by the Court that decided Sellars. Thus the notion of “binding effect” as a matter of law was disavowed by this Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3, at para. 168, for example, where Lamer C.J., writing for six members of the seven-judge panel said that “the remarks of Le Dain J. [writing for the Court in Valente v The Queen,  2 S.C.R. 673] were strictly obiter dicta, and do not bind the courts below”.
The issue in each case, to return to the Halsbury question, is what did the case decide? Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.
These propositions may be illustrated by Noël itself. At paragraph 36 and following, Arbour J. summarizes aspects of the jurisprudence under s. 5(2) of the Canada Evidence Act, including points not necessary to the Noël judgment itself. The discussion, while obiter, is (as the saying goes) learned obiter, and would quite properly be regarded in future cases as an authoritative summary. On the other hand, the “rare circumstances” comment that bothered the Attorney General of Ontario was not part of the analysis, and should not be taken as imposing a rule or norm or even a statistical hurdle limiting other courts.
It is neither desirable nor practical to go through Dubois, Mannion, Kuldip and Noël to identify which of the obiter statements urged upon us by counsel at the hearing of this appeal should be regarded as authoritative. The present reasons endeavour to re-establish the core concept stated in Dubois that “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” (p. 358). To the extent statements in the other cases are inconsistent with the rationale of compulsion (the “quid pro quo”), they should no longer be regarded as authoritative.
The result of a purposeful interpretation of s. 13 is that an accused will lose the Mannion advantage in relation to prior volunteered testimony but his or her protection against the use of prior compelled testimony will be strengthened. The two different situations will be treated differently instead of homogenized, and the unpredictability inherent in sorting out attacks on credibility from attempts at incrimination will be avoided.
For the foregoing reasons, I conclude that the s. 13 Charter rights of the appellants (who were volunteers at both trials) were not violated by the Crown’s cross-examination. Their appeals must therefore be dismissed.
Gil D. McKinnon, Q.C., and Lisa Sturgess (m/s Brian Coleman, Lisa Sturgess, Vancouver & m/s Gil D. McKinnon, Q.C., Vancouver), for the appellants.
Alexander Budlovsky and Nikos Harris (Attorney General of British Columbia, Vancouver), for the respondent.
Kenneth J. Yule, Q.C., and Ron Reimer, for the intervener the Attorney General of Canada.
David Lepofsky, for the intervener the Attorney General of Ontario.
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