R. v. Noël, 2002 SCC 67, [2002] 3 SCR 433

R. v. Noël, [2002] 3 S.C.R. 433, 2002 SCC 67

Camille Noël                                                                                                     Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Noël

Neutral citation:  2002 SCC 67.

File No.:  28734.

2002:  May 14; 2002:  October 31.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Constitutional law — Charter of Rights  — Self-incrimination — Accused convicted of first degree murder — Crown cross-examining accused at length on incriminating statements he had made during his brother’s trial for same murder — Whether accused’s cross-examination contrary to s. 13  of Charter  — Canadian Charter of Rights and Freedoms, s. 13 .

Evidence — Cross‑examination — Self‑incrimination — Accused convicted of first degree murder — Crown cross‑examining accused at length on incriminating statements he had made during his brother’s trial for same murder — Accused having invoked s. 5(2)  of Canada Evidence Act  at his brother’s trial — Whether Crown should have been prevented from introducing prior testimony at accused’s own trial — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5(2) .

The accused was charged with first degree murder after the body of a nine‑year‑old boy was found in a tunnel.  The boy had died of strangulation.  The case against the accused consisted essentially of numerous incriminating statements that he made to the police in the days following the homicide.  The accused’s defence was that his brother had killed the victim while he merely assisted in disposing of the body.  The accused testified at trial and denied any participation in the killing.  He repudiated all his previous incriminating statements.  The accused’s brother had also been charged with that murder.  He was tried separately and acquitted.  The accused testified for the Crown both at the preliminary inquiry and at his brother’s trial.  Although the accused was called as a Crown witness, the Crown was eventually permitted to cross‑examine him at his brother’s trial.  The cross‑examination was lengthy and fruitful.  The accused admitted that his statements to the police were true, and he admitted having been his brother’s accomplice in the murder of the boy.  In addition to the constitutional protection granted to him by s. 13  of the Canadian Charter of Rights and Freedoms , when the accused testified at his brother’s trial he had asked for, and been granted, the protection of s. 5  of the Canada Evidence Act .  When the accused eventually testified in his own trial, the Crown was permitted to cross‑examine him at length on the incriminating statements he made during his brother’s trial.  The accused was found guilty by the jury.  The Court of Appeal, in a majority decision, upheld the conviction.

Held (L’Heureux‑Dubé J. dissenting):  The appeal should be allowed and a new trial ordered.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.:  Under s. 13 of the Charter , when an accused testifies at trial, he cannot be cross‑examined on the basis of a prior testimony, even if it is tendered for the apparent limited purpose of testing credibility, 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.  When the prior evidence was highly incriminating, no limiting instruction to the jury could overcome the danger of incrimination and the cross‑examination should not be permitted.

During his trial the accused was cross-examined at length on the testimony he gave previously during the preliminary inquiry and trial of his brother.  Typically, Crown counsel would read excerpts from the transcript of the accused’s prior testimony and, consistently, the accused would repudiate his prior in‑court statements, stating that he was in fact lying during his brother’s trial, claiming that his brother had threatened him and forced him to lie.  Had the sole intent of the Crown been to discredit the accused, it would have been sufficient simply to highlight these contradictions and repudiations.  However, the Crown went further and, at various points in the cross‑examination, attempted to get the accused to adopt the incriminating portions of his prior testimony.  The cross‑examination was thus illegally aimed at incriminating the accused and not only at testing his credibility.  The risk of misuse of the incriminating evidence given by the accused at his brother’s trial was overwhelming and could not have been alleviated by any instructions.

Since the accused invoked s. 5(2)  of the Canada Evidence Act  at his brother’s trial, the Crown should have been prevented from introducing that prior testimony at the accused’s own trial.  Moreover, the constitutional protection offered by s. 13  of the Charter  is co‑extensive with that of s. 5(2)  of the Canada Evidence Act  in a case like the present.  When the accused is cross-examined by reference to incriminating evidence that he gave in a judicial proceeding — whether the protection of s. 5  of the Canada Evidence Act  was claimed or not — the accused is protected by s. 13  of the Charter .  When the evidence given in a judicial proceeding by a witness who subsequently becomes an accused was incriminating at the time it was given, such that the witness could have been granted the statutory protection of s. 5  of the Canada Evidence Act , but did not know to ask, the focus should shift to the use that the Crown proposes to make of that evidence at the subsequent trial of the accused.  Clearly, the Crown is precluded from introducing it as part of its case in chief.  Whether the Crown can confront the accused with his prior incriminating testimony in cross‑examination, purportedly to test his credibility, will depend on whether there is a real danger, despite any warning given to the jury, that the protected evidence may be used to incriminate the accused.  The Kuldip exception is limited to cases where the reference to the prior evidence is exclusively for impeachment purposes and carries no other risk of incrimination.  Cross‑examination is thus permitted only 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.

No reference should have been made, during the cross‑examination of the accused, to his awareness of the statutory and constitutional protection offered by s. 5  of the Canada Evidence Act  and s. 13  of the Charter  respectively.  In the rare circumstances where it will be permissible to cross‑examine an accused on the basis of his prior testimony, the cross‑examination will only be directed at his credibility.  Knowledge of the legal protection does not yield an inference in relation to truthfulness one way or the other. 

Since the case must go back for a new trial on the s. 13  issue, it is unnecessary to decide whether the trial judge’s instructions on reasonable doubt were sufficiently flawed to have required a new trial on that ground alone.  As for the trial judge’s treatment of the expert evidence, the instructions were not deficient to the point of constituting a misdirection.

Per L’Heureux‑Dubé J. (dissenting):  Preventing the jury from hearing evidence going to the heart of the accused’s credibility on the grounds that the jury are incapable of properly using it for this just purpose would add a barrier to the truth‑seeking process which is both unjustified and unjust.  Ensuring that an accused receives a fair trial, deterring police misconduct and preserving the integrity of the administration of justice are all laudable goals to which this Court must strive in its rules of evidence, at times to the detriment of full access to the truth.  Where these goals are met, however, the search for the truth must be the preponderant consideration.  No evidence was before the Court in this case to suggest that juries are, as a whole, unable to use prior testimony in an appropriate manner.  Absent such evidence, there does not appear to be a pressing need to make a fundamental change in the law of evidence so as to exclude in all cases a whole series of prior inconsistent statements made while testifying.  Eliminating a significant amount of evidence that strikes at the heart of any witness’s credibility is also not a proper expression of the law.  In this case admitting prior testimony will generally serve both to incriminate the accused and to undermine his credibility.  The former use is prejudicial, while the latter is proper.  The jury should be given a chance to make use of this type of evidence, subject to appropriate instructions indicating that they are not to use prior testimony to incriminate the accused.  Kuldip strikes an appropriate balance between the rights of the accused not to have their previous evidence used to incriminate them, and the need for the jury to be exposed to as much of the truth as can be permitted in a just society.  This is the balance that s. 5  of the Canada Evidence Act  and s. 13  of the Charter  seek to strike, and this is the balance that this Court ought to uphold.  Allowing a witness to lie on the stand without fear of being contradicted is not something this Court ought to permit.

The use immunity that arises when a witness testifies is the same whether the witness has claimed the protection afforded by s. 5  of the Canada Evidence Act  or not.  This use immunity prevents the prosecution from using the witness’s testimony in any subsequent proceedings for the purpose of incriminating the witness (who is now the accused in his or her own proceeding).  Given the fact that a great deal of evidence that is tendered to impugn a witness’s credibility also has the effect of incriminating him or her, it will be necessary in most cases for the trial judge to instruct the jury with respect to the appropriate use to which they can put the evidence.  Occasionally, instructions to the jury will have to be given during the trial so as to  pre-emptively  prepare the jury for the evidence they will hear.  The danger of the evidence being used to incriminate the accused depends a great deal on the nature of the evidence as well as the circumstances of the case.  The greater the danger of incrimination, the more explicit the instructions to the jury will need to be to prevent the evidence from being used to impermissibly incriminate the accused.

The Crown’s cross‑examination of the accused dealt mostly with the accused’s prior testimony at his brother’s trial and preliminary hearing.  There is nothing that is offensive in this line of questioning.  The trial judge’s instructions to the jury appropriately delineated the two purposes for which the evidence could be used, and the one purpose for which the jury were entitled to use it.  While the trial judge’s instructions pertaining to the appropriate standard of proof are not entirely consistent with this Court’s requirements, there has been substantial compliance with the requirements set out.  There is no reasonable apprehension that the jury misunderstood the correct standard of proof that they were required to apply.  The appeal should also be dismissed on the issue of expert evidence.  While Crown counsel’s questions respecting the accused’s understanding of the law were not appropriate, the presence of such questions did not have any real effect on the outcome of the accused’s trial, and the curative proviso should be applied. 

Cases Cited

By Arbour J.

Distinguished:  R. v. Kuldip, [1990] 3 S.C.R. 618, rev’g (1988), 40 C.C.C. (3d) 11; referred to:  R. v. Mannion, [1986] 2 S.C.R. 272; R. v. Lifchus, [1997] 3 S.C.R. 320; Malloy v. Hogan, 378 U.S. 1 (1964); R. v. Dubois, [1985] 2 S.C.R. 350; R. v. B. (W.D.) (1987), 38 C.C.C. (3d) 12; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Wilmot, [1940] 3 D.L.R. 358; R. v. Côté (1979), 50 C.C.C. (2d) 564; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Marcoux, [1976] 1 S.C.R. 763; R. v. Tass (1946), 86 C.C.C. 97; Klein v. Bell, [1955] S.C.R. 309; R. v. Mottola, [1959] O.R. 520; Accident Insurance Mutual Holdings Ltd. v. McFadden (1993), 31 N.S.W.L.R. 412; Den Norske Bank A.S.A. v. Antonatos, [1999] Q.B. 271; Carter v. United States, 684 A.2d 331 (1996); Hoffman v. United States, 341 U.S. 479 (1951); R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29; R. v. Calder, [1996] 1 S.C.R. 660; R. v. Monette, [1956] S.C.R. 400; Pearse v. Pearse (1846), 1 De G. & Sm. 12, 63 E.R. 950; R. v. Jabarianha, [2001] 3 S.C.R. 430,  2001 SCC 75; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

By L’Heureux-Dubé J. (dissenting)

R. v. Kuldip, [1990] 3 S.C.R. 618, rev’g (1988), 40 C.C.C. (3d) 11; R. v. Hendershott (1895), 26 O.R. 678; R. v. Hammond (1898), 29 O.R. 211; R. v. Wilmot, [1940] 2 W.W.R. 401; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Nikolovski, [1996] 3 S.C.R. 1197; R. v. Howard, [1989] 1 S.C.R. 1337; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Lane (1969), 6 C.R.N.S. 273; Miller v. White (1889), 16 S.C.R. 445; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Livermore, [1995] 4 S.C.R. 123; R. v. Dubois, [1985] 2 S.C.R. 350; R. v. Mannion, [1986] 2 S.C.R. 272; R. v. B. (W.D.) (1987), 38 C.C.C. (3d) 12; Johnstone v. Law Society of British Columbia, [1987] 5 W.W.R. 637; R. v. Calder, [1996] 1 S.C.R. 660; Blunt v. Park Lane Hotel, Ltd., [1942] 2 K.B. 253; R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd., [2000] 1 All E.R. 773;  R. v. Martin, [1998] 2 Cr. App. R. 385; Accident Insurance Mutual Holdings Ltd. v. McFadden (1993), 31 N.S.W.L.R. 412; R. v. Guariglia, [2000] VSC 13; Hoffman v. United States, 341 U.S. 479 (1951); New Jersey v. Portash, 440 U.S. 450 (1979); Photo Production Ltd. v. Securicor Transport Ltd., [1980] 1 All E.R. 556; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Bisson, [1998] 1 S.C.R. 306; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Jabarianha, [2001] 3 S.C.R. 430, 2001 SCC 75.

Statutes and Regulations Cited

Act to amend the Canada Evidence Act, 1893, S.C. 1898, c. 53, s. 1.

Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 5  [am. 1997, c. 18, s. 116].

Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 5.

Canadian Charter of Rights and Freedoms, ss. 13 , 24(2) .

Criminal Code, R.S.C. 1985, c. C-46, ss. 672.11  [ad. 1991, c. 43, s. 4; 1995, c. 22, s. 10 (Sch. I, item 24)], 686(1)(b)(iii).

Evidence Act 1908 (New Zealand), No. 56, s. 4.

Evidence Act 1958 (Victoria), No. 6246, s. 29.

Evidence Act 1977 (Queensland), 26 Eliz. II No. 47, s. 10 [am. Qld. E.D. s. 7].

Evidence Act 2001 (Tasmania), No. 76 of 2001, s. 128.

United States Constitution, Fifth Amendment.

Authors Cited

Canada. House of Commons.  Debates of the House of Commons, vol. XXXVI, 3rd Sess., 7th Parl., March 3, 1893, pp. 1695 and 1697. 

Canada.  Law Reform Commission.  Report 16.  The Jury.  Ottawa: The Commission, 1982.

Canada.  Law Reform Commission.  Working Paper 27.  The Jury in Criminal Trials. Ottawa: The Commission, 1980.

Cross on Evidence, 6th N.Z. ed. by Donald L. Mathieson. Wellington, N.Z.:  Butterworths, 1997.

Delisle, Ronald Joseph, and Don Stuart.  Evidence Principles and Problems, 6th ed. Toronto:  Carswell, 2001.

Heydon, John Dyson.  Cross on Evidence, 6th Australian ed.  Sydney:  Butterworths, 2000.

Keane, Adrian.  The Modern Law of Evidence, 5th ed.  London:  Butterworths, 2000.

Maczko, Frank.  “Charter of Rights : Section 13 ” (1982), U.B.C. L. Rev. (Charter  ed.) 213.

McCormick on Evidence, vol. 1, 5th ed. by John W. Strong.  St. Paul, Minn.:  West Group, 1999.

Paciocco, David M.  “Evidence About Guilt: Balancing the Rights of the Individual and Society in Matters of Truth and Proof” (2001), 80 Can. Bar Rev. 433.

Peck, Richard C. C.  “The Adversarial System:  A Qualified Search for the Truth” (2001), 80 Can. Bar Rev. 456.

APPEAL from a judgment of the Quebec Court of Appeal, [2001] R.J.Q. 1464, 156 C.C.C. (3d) 17, [2001] Q.J. No. 2831 (QL), affirming a decision of the Superior Court, [1995] Q.J. No. 1147 (QL).  Appeal allowed, L’Heureux‑Dubé J.  dissenting.

Josée Ferrari, for the appellant.

Henri‑Pierre Labrie and Michel Breton, for the respondent.

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by

1                                Arbour J. — We are asked in this appeal to revisit our jurisprudence on the scope of the constitutional protection offered to a witness who subsequently becomes an accused, under s. 13  of the Canadian Charter of Rights and Freedoms .  In particular this case calls for a determination of the state of the law after R. v. Mannion, [1986] 2 S.C.R. 272, and R. v. Kuldip, [1990] 3 S.C.R. 618.

2                                The appellant was found guilty by a jury of first degree murder.  In the evening of December 16, 1994, the body of a nine-year-old boy was found in a tunnel abutting on Stanley Street, in Magog.  He had died of strangulation.  A few hours earlier, the boy’s mother had searched for her son before alerting the police; the young boy never returned home after a youth science club meeting.  After a few days of investigation, the police arrested the appellant on December 20, 1994.  The essence of the case against the appellant consisted of numerous incriminating statements that he made to the police in the days following the homicide.  The appellant’s defence was that his brother had killed the victim while he merely assisted in disposing of the body.  The appellant testified at trial and denied any participation in the killing.  He repudiated all his previous incriminating statements.

3                                The appellant’s brother Serge Noël had also been charged with that murder.  He was tried separately and he was acquitted in June 1995.  The appellant testified for the Crown both at the preliminary inquiry and at the trial of his brother.  Although the appellant was called as a Crown witness, the Crown was eventually permitted to cross‑examine him at his brother’s trial.  The cross‑examination was lengthy and fruitful.  The appellant admitted that his statements to the police were true, and he admitted having been his brother’s accomplice in the murder of the little boy.  In addition to the constitutional protection granted to him by s. 13  of the Charter , when the appellant testified at his brother’s trial, he had asked for the protection of s. 5  of the Canada Evidence Act, R.S.C. 1985, c. C‑5 .  That statutory protection was granted to him as was confirmed during the hearing by the appellant’s counsel.

4                                As I will elaborate below, I have come to the conclusion that s. 13  of the Charter  must be interpreted as follows: 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.  When, as here, the prior evidence was highly incriminating, no limiting instruction to the jury could overcome the danger of incrimination and the cross-examination should not be permitted.

5                                When the appellant eventually testified in his own trial, the Crown was permitted to cross‑examine him at length on the incriminating statements he made during his brother’s trial.  That cross‑examination was permitted on the authority of Kuldip, supra, which distinguishes between cross‑examination aiming to incriminate, which is prohibited, and cross‑examination aiming at challenging credibility, which is not.  Here, the trial judge and the majority in the Court of Appeal  held that the cross‑examination was merely used to challenge the credibility of the appellant, who was now denying any participation in the murder, and not for the prohibited purpose of incriminating him.  In my view, the majority of the Court of Appeal was in error in coming to that conclusion.

6                                Fish J.A. dissented on that and on two other grounds.  This appeal therefore comes to us as of right.  I will return briefly to the two other grounds of appeal which arise from Fish J.A.’s dissent.  In my view, the ground of appeal based on s. 13  of the Charter  is dispositive in favour of the appellant, whose conviction must be set aside.

I.  The Trial

7                                The appellant was tried by judge and jury.  At the outset of his trial on October 17, 1995, a voir dire was held to determine the admissibility of certain incriminating statements made by the appellant to the police, both prior to and after his arrest.  The statements can be summarized as follows:

-                 On December 17, 1994, the appellant told a police officer that he spent the evening of December 16 with his brother, Serge Noël, at the latter’s home.

-                 On December 18, 1994, the appellant told another police officer that on December 16 he watched movies at his brother’s house from 6 p.m. onwards.

-                 On December 20, 1994, the appellant made the following statement at the police station:  [translation]  “It’s true, I did it, but I’m not alone in it.”

-                 On December 20, 1994, the appellant signed an 18-page written statement at the police station, describing how he and his brother killed the victim.

-                 On December 21, 1994, at the police station, the appellant changed his previous version of events and specified that the crime was committed in his basement.

-                 On December 26, 1994, the appellant had a telephone conversation with a police officer.  This conversation led to the discovery of a plastic bag containing some personal effects of the victim.

-                 On July 4, 1995, the appellant told a police officer that he held the victim’s legs while his brother killed him.

The trial judge ruled that all of these statements were admissible into evidence. This ruling is not in issue before us.

8                                Early in the trial, the trial judge ordered the assessment of the appellant’s mental condition, pursuant to s. 672.11  of the Criminal Code, R.S.C. 1985, c. C-46 .  The defence had three expert witnesses testify as to the intellectual incapacity of the appellant, stating that he exhibited an I.Q. of 61 and that he could neither read nor write.  The Crown’s only expert witness, on the other hand, described the appellant as “borderline” with an I.Q. of 75.  On November 1, 1995, the appellant was found fit to stand trial and the proceedings continued.

9                                The case for the Crown consisted essentially of the appellant’s statements to police and of the testimony of eyewitnesses to the effect that they saw the appellant and his brother loitering in the streets of Magog on the evening of December 16, 1994.  The defence relied chiefly on the appellant’s testimony denying his involvement in the murder.  The appellant claimed that it was his brother who committed the murder and that he merely helped him carry the body to the Stanley Street tunnel.  The defence also argued that the incriminating statements made by the appellant were unreliable in light of his limited intellectual capacity and, in particular, his limited grasp of reasonably simple questions.

10                             During his trial the appellant was cross-examined at length on the testimony he gave previously during the preliminary inquiry and trial of his brother Serge Noël.  The transcript of the appellant’s cross-examination is 299 pages long.  I note that, for approximately 250 of those 299 pages, the cross-examination of the appellant was centred around his prior testimony, much of which was incriminating.  For the first 50 pages or so, the line of questioning was directed alternately to the appellant’s incriminating statements to the police and to his prior testimony at Serge Noël’s preliminary inquiry and trial.  The remainder of the appellant’s cross-examination focussed almost exclusively on his testimony at his brother’s trial.  Typically, Crown counsel would read excerpts from the transcript of the appellant’s prior testimony and, consistently, the appellant would repudiate his prior in-court statements, stating that he was in fact lying during his brother’s trial, claiming that his brother had threatened him and forced him to lie.  Had the sole intent of the Crown been to discredit the appellant, it would have been sufficient to simply highlight these contradictions and repudiations.  However, the Crown went further and, at various points in the cross-examination, attempted to get the appellant to adopt the incriminating portions of his prior testimony.  For example:

[translation]

Q.     I am going to ask you the same question again, Mr. Noël. In the last ten (10) minutes, I have been telling you what you told the jury, about your own and Serge’s involvement.  So that this is clear, you were waiting for him at the corner by the Gilbert convenience store, you followed him as far as the karate school, he was afraid of you, his mother had talked to him about you.  He took off with Serge, you followed them on St-Luc going toward the tunnel.  You stopped when you reached the tunnel and they kept going toward the skating rink.  You stayed there for a short while and then went home.  Serge came back to pick up the hockey stick in your basement and went back to the skating rink.  He told you that he had struck Eric on the head twice (2) with the hockey stick. He brought him back to your place.  That’s where we had got to.  You were asked here, that testimony, was it the truth?  I am asking you this today, and you have your hand on the Bible.

A.     That’s what he told me.

Q.          Okay.  So, on that day, June 13, 1995, when the lawyer Mr. Côté asked you:

“Q.    The testimony you have given, Mr. Noël, from when His Honour asked everyone to leave the room, is that the whole truth?”

That is referring to what I just read.  You replied:

“A.    Yes, it’s the whole truth.

Q.          It’s the real, genuine truth?

A.           I didn’t put my hand on the Bible for nothing, eh! If I hadn’t put it on the Bible, I wouldn’t have told the truth.”

So, Mr. Noël, when was it the truth?  On June 9 when you had taken an oath or today?

Again, at another point in the cross-examination:

[translation]

Q.     So I am asking you:

“Q.    So then, what’s going on?”

What I mean is, just before, I asked you:

“Q.    Did he [Éric] tell Serge something:  I don’t want to see him.

A.     No.

Q.     What did he do?

A.     The little guy said that he wanted to leave and go see his mother.”

Do you recall having said that to the members of the jury?

A.     It’s very possible.

Q.     It’s very possible, eh!  Okay.

There are many more such examples, many of which have been quoted in the dissenting reasons of Fish J.A.  It is not necessary to reproduce them here.  Reading the transcript as a whole, however, I can only conclude, as did Fish J.A., that the cross-examination was illegally aimed at incriminating the appellant and not only at testing his credibility.

11                            Another particularly improper feature of this cross-examination is the fact that the jury was presented with the contents of a surreptitiously recorded jailhouse conversation between the appellant and two inmates named Carbone and Montminy.  According to the appellant, Carbone encouraged him to describe how the crime was committed from the viewpoint of his brother Serge.

[translation]

A.     Mario Carbone, he told me, he said:  “Put yourself in your brother’s shoes.” He said:   “Tell me how it happened.”

                                                                   . . .

Q.     Okay.  So then, what did you tell Mario Carbone?

A.     Well, he asked me what had happened to the kid.

Q.     And what did you tell him?

A.     That’s what I told him, that my brother had killed him . . . that he had killed the kid.

At this point, the cross-examination became extremely convoluted and difficult to follow.  The Crown cross-examined the appellant by reading excerpts of the transcript of Serge Noël’s trial during which the appellant was being questioned about that conversation with Carbone and Montminy. During his brother’s trial, defence counsel had played the audio-tape of the jailhouse conversation and had questioned the appellant as to its contents.  In other words, in this case, the jury was asked to follow and make sense of a cross-examination about a cross-examination about a tape-recorded conversation during which the appellant described the crime, not from his own perspective, according to him, but from his brother’s.

12                            The Crown claims that the purpose of this was to discredit the appellant by showing the contradictions between his testimony at his brother’s trial and at his own.  The trial judge instructed the jury that it could not look to the jailhouse conversation for the truth of its contents but only for the purpose of assessing the appellant’s credibility.  However, in my view, the Crown clearly attempted to rely on the previous testimony on the jailhouse conversation to establish the guilt of the appellant.  For example:

[translation]

Q.     And then he asked you the question we hear on the tape: “Was there anyone who heard noise in the basement?”  On the tape, we hear: “Yes, my brother.”  Then he asked you the question:

“Q.    That’s right?

A.     That’s right.”

Q.     Next question: “Your brother who?”  Answer: “Serge”

                                                                   . . .

So, Mr. Noël, it was your brother who was upstairs and who heard the noise in the basement?

A.     It was me who was upstairs and he was in the basement.  It was the exact opposite of what I said.

Q.     Fine.  It was the exact opposite.  Except that Mario Carbone then asked you:  “Did anyone hear noise in the basement?”  On the tape, we hear:  “Yes, my brother.”  Your brother who?  Answer:  “Serge.”

Then Mr. Côté looked at you and asked you:

“Q.    That’s right?

A.     That’s right.”

That is in fact what you said on June 9? [at Serge’s trial]

A.     Yes.  That’s because he asked me to put myself in my brother’s shoes.

Q.     Fine.  He told you to put yourself in your brother’s shoes?

A.     Yes.

Q.     But he asked you:  “Your brother who?”  And you answered:  “Serge.”

A.     Yes.  He didn’t want me to say my name.  He kept wanting me to call myself . . .

Q.     Okay.

A.     . . . Serge while I was talking.

Q.     But do you agree with me that if Serge had been the one talking on the tape, he would have said:  “Who was waiting for you upstairs?”  You would have said:  “It was Camille.”

Without calling either Carbone or Montminy to testify at the appellant’s trial, the Crown improperly introduced this evidence as part of its case “in a manner that cannot be properly described as cross-examination as to credibility — or, for that matter, as cross-examination of any sort” (reasons of Fish J.A. (2001), 156 C.C.C. (3d) 17, at para. 186 (emphasis in original)).  One has to wonder how even the most alert and astute jurors could have made sense of such a complicated and intricate juxtaposition of testimonies.  The only thing that emerged clearly was the attempt by the Crown to put yet another incriminating statement before the jury.

II.  The Quebec Court of Appeal (2001), 156 C.C.C. (3d) 17

13                            The appellant appealed the verdict on five grounds, all of which were rejected by the majority of the court, constituted by Proulx and Chamberland JJ.A.  Essentially, the majority was of the view that:  (1) the trial judge did not err in allowing rebuttal evidence to be adduced during the voir dire on the admissibility of the appellant’s statements to the police; (2) the trial judge did not err in ruling that these incriminating statements of the appellant were admissible; (3) the cross-examination was properly conducted and was exclusively aimed at discrediting the appellant; (4) while imperfect, the charge to the jury was in substantial compliance with the principles in R. v. Lifchus, [1997] 3 S.C.R. 320, and the decisions rendered in its wake; (5) the trial judge did not err in failing to charge the jury on the expert evidence since it did not go to the heart of this case, namely the credibility of the appellant.

14                            Fish J.A. dissented on three of the five grounds discussed above.  First, in the opinion of Fish J.A., the jury charge improperly explained the notion of reasonable doubt and, read as a whole, gave rise to a reasonable likelihood that the jury misapprehended the correct standard of proof.  Second, the trial judge should have given instructions with regards to the expert evidence relating to the appellant’s I.Q.  According to Fish J.A., the appellant’s damaging admissions and contradictions could, in light of the experts’ evidence, have been attributable to his intellectual limitations and assist the jurors in assessing his credibility.  Finally, Fish J.A. was of the view that the cross-examination of the appellant on his prior testimony was irregular and contrary to s. 13  of the Charter  insofar as it was used for the truth of its contents and not, as permitted by Kuldip, to attack the credibility of the appellant.  For these reasons, Fish J.A. would have allowed the appeal and ordered a new trial.

III.  Issues

15                            On appeal to this Court, the appellant raises the same grounds that formed the basis of Fish J.A.’s dissent.  In particular:  (1) whether the trial judge erred in charging the jury on the burden of proof and reasonable doubt; (2) whether the trial judge erred in failing to provide any instruction with regard to the expert evidence; and (3) whether the cross-examination of the appellant was irregular and contrary to s. 13  of the Charter .  I will address each of these issues in reverse order.

IV.  Relevant Statutory Provisions

16                            Canadian Charter of Rights and Freedoms 

13. 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, except in a prosecution for perjury or for the giving of contradictory evidence.                                                      

Canada Evidence Act, R.S.C. 1985, c. C-5 

5. (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.

V.  Analysis

A.  Kuldip and the Right Against Self-Incrimination

1.  Introduction

17                           This case is different from Kuldip, supra, in several respects.  For one thing, the appellant here invoked the protection of the Canada Evidence Act  when he first testified.  This is the first case that comes before us where both s. 5  of the Canada Evidence Act  and s. 13  of the Charter  are at play together.  Moreover, the evidence given by the appellant in his first testimony was clearly incriminating, and his cross‑examination at his own trial exposed the incriminating statements that he made under oath in relation to the very charge that he now faced.  By contrast, in Kuldip, the cross‑examination referred to statements made by the accused at his first trial that were exculpatory when they were made, but could now be proven false and therefore damaging to his credibility. In order to determine whether Kuldip was intended to and should be applied in the circumstances of this case, we must assess whether these differences are significant. 

18                            The majority of the Court of Appeal was content to invoke the classic distinction between a permissible and a prohibited use of the same evidence, and to rely on clear instructions to the jury to ensure that the distinction is understood and followed.  No one denies that  the distinction between the two possible aims or uses of cross‑examination is a tenuous one when the cross‑examination is of an accused in a criminal case.  Indeed, this was explicitly recognized by the majority in the Court of Appeal in this case as it had been by Lamer C.J. writing for the majority in Kuldip.  He said, at p. 635:

This seems an appropriate time at which to mention that I share Martin J.A.’s concern that it is sometimes 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.  A trial judge will have to be very clear in his or her instructions to the jury when setting out the uses to which previous testimony can be put and the uses to which such testimony must not be put.  While such a distinction may be somewhat troublesome to the jury, it is my view that with the benefit of clear instructions from the trial judge the jury will not be unduly burdened with this distinction.

19                            This same concern was well expressed by Fish J.A. in his dissenting opinion in the present case, at paras. 169 and 173-74:

Even for those trained in the law, the use in cross‑examination of evidence obtained from the accused as a witness in other proceedings involves a firm grasp of a subtle distinction in theory that is often difficult to apply in practice.  This case, as we shall see, demonstrates that the danger of misapplication is not just hypothetical, but real.

                                                                   . . .

 . . . this is one of the rare cases where the record establishes that the jury did not distinguish in its deliberations between the use of appellant’s prior evidence to impugn his credibility and its probative effect on his guilt. After deliberating for approximately five hours, the jury sent the judge this question:

[translation]  Your Lordship, the jury would like to know if Camille Noël left Serge and Éric Arpin at the karate school at the corner of St‑Luc and St‑Patrice and went to his (Camille’s) house and saw Éric again after he was dead and carried him into the tunnel, would Mr. Camille Noël, under s. 21(b), be a party to the offences and therefore guilty of first degree murder?

As the trial judge noted, this question pre‑supposed “facts” that were not in evidence. The question thus demonstrated, incontrovertibly in my view, that despite the judge’s instructions, the jury had failed to grasp the distinction it was bound by Kuldip to apply. [Emphasis in original.]

20                           This difficulty became, in my opinion, insurmountable in this case.  Like Fish J.A., I conclude that the risk of misuse of the incriminating evidence given by the appellant at his brother’s trial, when it was introduced against him at his own trial purportedly to challenge his credibility, was overwhelming and could not have been alleviated by any instructions.  In my view, this use is not permitted by s. 13  of the Charter .

2.  Section 5  of the Canada Evidence Act  and Section 13  of the Charter 

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.  If the evidence proffered is less than full and frank, the witness is subject to prosecution for perjury or for the related offence of giving contradictory testimony.  In the United States, a different arrangement is in place:  faced with the prospect of self‑incrimination, the witness can claim the Fifth Amendment, and refuse to provide the incriminating answer.   The state then has to dispense with his evidence altogether. As the United States Supreme Court stated in Malloy v. Hogan, 378 U.S. 1 (1964), at pp. 7-8:  “[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and . . . the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.”  See generally McCormick on Evidence (5th ed. 1999), vol. 1, at pp. 450-518.

22                            Under the regime of the Canada Evidence Act , and now also under the Charter , a different bargain is struck.  When a witness provides evidence in any proceeding, whether voluntarily or under legal compulsion, he or she cannot refuse to answer a question that may tend to incriminate the witness, but is offered protection against the subsequent use of that evidence.  The question before us is the extent of that protection.  To answer that question, it is important to remember its root in the quid pro quo.  The witness, now accused, gave something in exchange for the protection.  This is what makes a statement given in a judicial proceeding different from a statement to a person in authority, which is governed by rules of admissibility that are relevant to the special concerns related to that type of statement, and also different from all other out‑of‑court declarations and admissions.

23                            McIntyre J., in his dissenting opinion in R. v. Dubois, [1985] 2 S.C.R. 350, referred to that important purpose of s. 13  as follows, at p. 384:

There is a social interest in encouraging people to come forward to give evidence, not only in court but on other occasions in the tribunals and proceedings referred to above.  That interest is not served where witnesses in testifying expose themselves to the danger of self‑incrimination because of such testimony.  It is suggested that it was a recognition of this fact, together with a recognition of the inadequacy of the law relating to self‑incrimination and the inadequacy of provincial powers in this respect that caused the framers of the Charter  to include the very greatly strengthened Charter  provisions relating to self‑incrimination.

24                            This quid pro quo under which witnesses lost their important common law right to refuse to incriminate themselves in exchange for a use immunity attached to their compelled answers to incriminating questions is of course not a form of contract with an individual witness but a rule of public law under which the erosion of the privilege against self-incrimination is compensated by appropriate safeguards.  If one were to pursue a contract analogy, as my colleague Justice L’Heureux-Dubé suggests I do, the remedy for the “breach” is provided for in the “contract”: the witness may be prosecuted for perjury or for the offence of giving contradictory evidence. More appropriately, I would suggest, s. 5  is a rule of public law which contemplates the possibility of an untruthful witness and which provides the appropriate response to such an eventuality by withdrawing the protection to the explicit extent provided for in the section. In that sense at least the protection is not absolute.

25                           I should also add that neither under s. 5  of the Canada Evidence Act  nor under the Charter  is there any reason, in my view, to draw a distinction between evidence given under compulsion and evidence given voluntarily, even when the evidence is voluntarily given by an accused who waives his non‑compellability and testifies in his own trial.  This is made clear by the language of s. 5 , and by the rationale behind both provisions.  When the witness is on the stand, whether under subpoena or not, the witness is required to answer all relevant questions put to him.  He may only object to answering any question that may incriminate him and seek protection.  The bargain is engaged when the jeopardy arises.  The protection is given in exchange for the answer.   It then becomes apparent that in keeping with the quid pro quo which lies at the heart of s. 13 , the state should not be permitted to introduce as part of its case an incriminating statement made by the accused in another proceeding, even if that “other proceeding” was his previous trial for the same offence (see Dubois, supra); nor should the state be permitted to introduce, in cross‑examination, for the purpose of “incriminating” the accused, an innocuous statement that the accused made while a witness in another proceeding (see Mannion, supra).

26                            It is on that authority that this Court concluded in Kuldip, supra, that the use of a previous testimony to challenge the credibility of an accused who testifies in his own trial does not infringe s. 13  because it is not used to “incriminate” the accused and is therefore not a violation of the quid pro quo.  If anything, the limited use of the prior testimony is thought to be more akin to the lifting of the protection when the witness is untruthful.  Just as there is no protection against a charge of perjury or for giving contradictory evidence, the assumption is that there is no protection if the sole purpose of the subsequent use is to demonstrate untruthfulness, while not violating the bargain that the testimony will not be used to incriminate.

27                            That subtle distinction, which could plausibly be made on the facts of Kuldip, disappears in a case such as the present one when the two uses — the permitted one and the prohibited one — are totally intermingled, and when it is apparent that the prohibited use is of much greater value to the Crown and probably of irresistible appeal to the jury.

28                            This was recognized, at least implicitly,  in Kuldip, when Lamer C.J. referred to the Saskatchewan case of R. v. B. (W.D.) (1987), 38 C.C.C. (3d) 12.  In that case, Vancise J.A. had put forward the distinction maintained in Kuldip between cross‑examination to incriminate and cross‑examination to discredit.  It is important to note that in B. (W.D.), Vancise J.A. had clearly anticipated the situation before us today and had answered in my view correctly the dilemma that it poses.  He said, at pp. 23-24:

In the present case, the accused denied he committed the offence. The issue, as noted, was his credibility.  The statement made by him in the previous proceeding did not concern the commission of the offence.  It was a factual statement concerning his current relationship, which differed from what he said at trial.  The Crown cross‑examined the accused to show that he made a statement in other proceedings which differed from that made at the trial.  The purpose was not to introduce evidence relating to the commission of an offence.  The purpose was to test the appellant’s credibility and to reduce the credit to be given to his present testimony.

If the respondent made a statement in which he admitted, or implicated himself in the crime charged, s. 13  would be engaged and such cross‑examination prohibited.  That would be an attempt to use the accused’s previous answers against him as the basis of his own prosecution.  [Emphasis added.]

29                            This distinction illustrates that Kuldip presents a limited exception to the general prohibition contained in s. 13  against the use of prior testimony:  it is only when such subsequent use cannot be said to incriminate the accused that it will escape the prohibition contained in the Charter .  Lamer C.J. himself recognized the limited reach of Kuldip when he said in R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 762:

It must also be remembered that Kuldip and s. 13  of the Charter  refer to a very special subset of prior inconsistent statements, in which the prior statement is made by an accused in a proceeding who testifies at a future proceeding and which, if admitted for the truth of its contents, would incriminate him in the second proceeding.  Furthermore, s. 13 applies only to a witness who testifies in a “proceeding”; while this Court has yet to explore the outer boundaries of this term, cases decided to date have concentrated on judicial proceedings such as trials and preliminary inquiries:  see Dubois.

30                            When the prior evidence was not on its face incriminating, as in Mannion, supra, Kuldip, supra, and B. (W.D.), supra, direct use is still prohibited, since the purpose can only be to incriminate,  but cross‑examination may not be (Kuldip and B. (W.D.)).  But when the prior evidence was incriminating at the time it was given, in that, for instance, it contained a damaging admission linking the witness to a criminal activity, its use in subsequent proceedings must be totally prohibited, even if it is tendered for the apparent limited purpose of testing credibility, unless there is no realistic danger of incrimination.  This is consistent with the scope of s. 5  of the Canada Evidence Act  as it had been interpreted prior to the advent of the Charter , and it is in my view consistent with the quid pro quo upon which persons are expected to give their full and frank evidence under oath in judicial proceedings even when such evidence contains statements that are damaging to the witness’s interest.

31                            In Kuldip, Martin J.A. writing for the Court of Appeal for Ontario (1988), 40 C.C.C. (3d) 11, had canvassed the state of the law on the scope of the protection offered by s. 5  of the Canada Evidence Act .  In obiter (since s. 5  had not been invoked), Lamer C.J. rejected the interpretation of s. 5  offered by the Court of Appeal for Ontario.  In my view, the interpretation of Martin J.A. was the correct one and it should inform our understanding of the scope of s. 13 .

32                            The major distinction between s. 5  of the Canada Evidence Act  and s. 13  of the Charter  is of course the requirement that, in order to activate the statutory protection, s. 5  has to be claimed by the witness at the time he or she gave evidence.  Section 13 , by contrast, applies to all persons who give evidence, without any requirement that the protection be sought by the witness.  This distinction between the statutory and constitutional regimes has a significant consequence.  Indeed, the constitutional protection is universal and not dependent upon the sophistication of the witness or the competence of his or her lawyer.  But there is another, more subtle difference between the two protective regimes.  By having to claim the protection under the Canada Evidence Act , the witness has to express an awareness, or at least a fear, that the evidence he or she was about to give may have subsequent adverse consequences for him or her.  In the words of the section, the witness has to assert that his answer “may tend to criminate him, or may tend to establish his liability to a civil proceeding”.  It is therefore apparent that the protection was limited to compelled “incriminating” evidence.  In that context it is hardly surprising that when given, the protection was absolute, save for prosecutions for perjury and the like.  The state was not permitted to use such “incriminating” evidence for any purpose, whether to incriminate directly, or in cross‑examination (see the analysis by Martin J.A. cited by Lamer C.J. in Kuldip).

33                            Section 5(2)  of the Canada Evidence Act  states that when a witness “objects to answer on the ground that his answer may tend to criminate him”, then “the answer so given shall not be used or admissible in evidence against him” (emphasis added) in subsequent criminal proceedings, save in prosecutions for perjury or for the giving of contradictory evidence.  The wording of s. 5(2)  makes no exception to the inadmissibility of incriminatory evidence when a witness invokes the statutory protection.  Therefore, the cases of R. v. Wilmot, [1940] 3 D.L.R. 358 (Alta. S.C.,   App. Div.), and R. v. Côté (1979), 50 C.C.C. (2d) 564, [1979] C.A. 118, which interpret s. 5(2)  as prohibiting even cross-examination, and which were cited with approval by this Court in Mannion, supra, at p. 281, are in my opinion correct and can be relied upon as good law.

34                            It follows from the fact that the appellant in the present case invoked s. 5(2)  at his brother’s trial that the Crown should have been prevented from introducing that prior testimony at the appellant’s own trial.  The trial judge should have applied s. 5(2)  so as not to allow this to happen.  I am also of the view, however, that the constitutional (as opposed to statutory) protection offered by s. 13  of the Charter  is co-extensive with that of s. 5(2)  of the Canada Evidence Act  in a case like the present, and it is to this issue that I would like to turn.

35                            The proper interpretation of s. 13  of the Charter  requires a full understanding of its sources at common law, and under the Canada Evidence Act .   The common law “privilege” against self-incrimination, traditionally expressed in the maxim nemo tenetur seipsum accusare, is a particular rule derived from the broader “principle” against self-incrimination:  R. v. Jones, [1994] 2 S.C.R. 229. At common law, the accused was neither competent nor compellable as a witness.  For the non-accused witness however, the common law privilege against self-incrimination provided that everyone was entitled to refuse to answer a question which might incriminate him:  R. v. Marcoux, [1976] 1 S.C.R. 763.  As such, the rule was aptly called the “privilege” against self-incrimination or the “prerogative” of the witness.   See R. v. Tass (1946), 86 C.C.C. 97 (Man. C.A.), at pp. 104-5, for a convenient summary of the common law privilege against self-incrimination. That privilege is thus distinct from the concept of compellability.  Save for a few —  the accused and his or her spouse — all witnesses are compellable to give evidence. Whether they do so enthusiastically, voluntarily, reluctantly or under the threat of legal sanction, witnesses are required to appear, to take an oath and to answer truthfully all questions put to them, subject to the common law privilege or, now that it has been modified by statute, to the protection offered by s. 5  of the Canada Evidence Act .

36                            Section 5  of the Canada Evidence Act  has replaced the privilege to refuse to answer self-incriminating questions with a certain measure of use immunity.  It is the witness who activates the protection of s. 5(2)  by registering an objection with the court.  It is up to the witness, not the court, to decide if and when he or she will invoke the protection of s. 5 .  As stated by Lamer J.A. (as he then was) in Côté, supra, at  pp. 570-71 C.C.C., [translation] “it is the witness who, to the exclusion of all others, has the right to decide which [questions] will be of an incriminating nature” (emphasis added), the court having now been cast in a more [translation] “passive role” since the enactment of s. 5 .

37                            This is not to say that the witness may register an objection to every question being asked. The objection must relate solely to questions which, in the honest belief of the witness, may lead to self-incrimination. This was made clear by this Court in Klein v. Bell, [1955] S.C.R. 309, a case about  the constitutionality of s. 5 of the British Columbia Evidence Act, R.S.B.C. 1948, c. 113, the wording of which is virtually identical to s. 5  of the Canada Evidence Act .  Writing for the Court, Rand J. concurring, Kerwin C.J. stated, at pp. 315-16, that:

. . . the objection must be made on the oath of the person under examination that, to the best of his belief, his answers would tend to criminate him, or the company, as the case may be. Such person is not entitled to object to answer ordinary questions about his residence, place of business, etc., nor is he entitled to rest on a statement that on the advice of his solicitor, or the solicitor for the company, he refuses to answer any questions on the ground that the answers might tend to criminate him, or it. He must pledge his oath in his belief that his answers to particular questions seriatim would so tend. . . .  [Emphasis added.] 

It should be noted however that, in practice, it is not necessary to voice an objection at every question seriatim. Courts may now accept blanket objections to a series of questions [translation] “when the witness anticipates, having regard to the circumstances, that all of them will invite him to give answers which he thinks in one way or another would tend to incriminate him”: Côté, supra, at p. 570 C.C.C.

38                            The procedure to be followed under s. 5  has also been properly described by  Morden J.A. of the Court of Appeal for Ontario in R. v. Mottola, [1959] O.R. 520, at p. 526:

An accused person who is a witness is not excused from answering incriminating questions. However, if the witness objects to answering a question upon the ground that his answer may tend to incriminate him and he then answers it as he is bound by the Act to do, the answer shall not be used in evidence against him in any criminal proceedings against him thereafter taking place with the necessary exception of a perjury charge in the giving of such evidence. The objection must be taken by the witness to the question. In practice when a witness is being examined upon an incident or series of incidents and he thinks that all or any of his answers might tend to incriminate him, the Judge might of course permit a general objection to the series of such questions and not require a specific objection to each and every question.  But the objection cannot be taken before the witness is sworn and before he is asked any questions.  Any protection the witness has if he objects to the question, is provided by s. 5(2) , is against the use of his answer in independent, contemporaneous or subsequent prosecutions. This protection is conferred by the Act and not by any ruling of the Judge when objection is taken to a question.  The procedure followed in the case under appeal was unwarranted.  The magistrate had no authority to confer or withhold ‘the protection of the Court’ upon the witness Boule or upon the appellant Vallee. Both these witnesses could at any time during their examination object to answer questions — they had no right to refuse to answer — but if they would have been excused at Common Law from answering such questions, their answers could not be used against them in other criminal proceedings.  [Emphasis added.]

Although these cases all suggest that the protection of s. 5  can only be invoked with regard to questions that the witness could have refused to answer pursuant to the common law privilege, they are silent as to the manner by which the proper application of s. 5  is monitored by the court.

39                    The role of the trial judge in other jurisdictions is quite clear.  For instance, in the United Kingdom and Australia, where the common law privilege still exists, the trial judge has the duty to ensure that the privilege is not unduly invoked; a determination must be made as to the potentially incriminating nature of the testimony that is requested.  The test is whether, in the circumstances, there is a real and appreciable danger that the evidence sought could be used in future criminal investigations or prosecutions against the witness.  See Accident Insurance Mutual Holdings Ltd. v. McFadden (1993), 31 N.S.W.L.R. 412 (C.A.) at pp. 420-23, for a convenient statement of the applicable common law procedure, quoted with approval in Den Norske Bank A.S.A. v. Antonatos, [1999] Q.B. 271 (C.A.), at pp. 285-87.   Similarly, in the United States, the witness is not the final arbiter of  whether the Fifth Amendment is properly invoked.  That duty falls to the trial judge.  As stated by the District of Columbia Court of Appeals in Carter v. United States, 684 A.2d 331 (1996), at p. 338:  “[I]f the trial judge concludes the proposed testimony would be incriminating and thereby poses the risk of possible future prosecution of the witness, this ends that inquiry and a claim of the privilege should be sustained.”  As noted by the authors of McCormick on Evidence, supra, at p. 472:  “A theoretical risk of liability is, then, sufficient.”  In turn, the proposed testimony will be deemed incriminating if it is “evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result”:  Hoffman v. United States, 341 U.S. 479 (1951), at p. 486-87.

39                            The considerable discretion of the trial judge where the common law privilege or the Fifth Amendment is concerned is justified because, in both cases, the consequence of claiming the privilege is the complete silence of the witness.  The stakes are high when a witness refuses to testify: the trial process and the search for truth are hindered and, in some cases, the defendant is deprived of potentially exculpatory evidence.  The trial judge thus has the duty to ensure that the privilege is not unduly asserted.  However, once the privilege is upheld, the parties must do without the testimony of the witness.  In my view, those concerns are not present in the Canadian regime where the witness’s right to silence has been abolished by the various Evidence Acts.  Every witness must testify and, subject to any other privilege or exclusionary rule, must answer all questions.  In exchange, witnesses are protected by s. 13  of the Charter  and, in addition, may seek the protection of the Evidence Act.  There is hence little need to monitor the incriminatory nature of the testimony at the time it is given since the witness must answer all questions in any event.  Indeed, common law or U.S.-style judicial discretion would be of no consequence.  Rather, in Canada, the judicial assessment of the incriminatory nature of the witness’s testimony is made at the subsequent proceeding, where the prior testimony is sought to be introduced into evidence.  This was emphasized by this Court in Dubois, supra, at p. 362, by reference to the protection offered by s. 5(2) :  “This limited form of protection against self-incrimination clearly has no application to the proceedings in which the testimony is taken and applies only to subsequent proceedings (Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at pp. 219-20). It applies, in other words, in subsequent proceedings in which the former witness has become the accused” (emphasis added).

40                            In Canadian law, the focus is thus on the nature and use of the prior testimony at the subsequent proceeding.  In my view, the trial judge before whom s. 5  is first invoked has a duty to ensure that the witness is properly placing himself within the ambit of the section: the answer to which he objects must be one that “but for this Act” he would have been entitled at common law to refuse to answer on the ground that it could tend to incriminate him.  Beyond this limited function, however, the trial judge must simply take notice that the statutory protection has been claimed.  It is not surprising that this issue has not been the subject of much judicial consideration.  For one thing, s. 5  of the Canada Evidence Act  is rarely invoked since the vast majority of witnesses are not represented by counsel when they testify, and are likely unaware of the existence of the section.  Moreover, the trial judge before whom the protection of s. 5  is sought has little incentive to explore whether it is properly claimed since, in any event, the witness is statutorily bound to answer the question.

41                             The protection of s. 13 , by contrast, is automatic and need not be invoked or triggered by the witness. This, in itself, creates a new series of difficulties.  The problem perceived in Kuldip, supra, with expanding the same quasi‑absolute protection under s. 13  of the Charter  to all witnesses who testify is that it would go far beyond the statutory protection by providing a shield against cross‑examination to all witnesses for all of their evidence, whether or not it was incriminating at the time it was given.  This would be so, even in cases where the witness would clearly not have sought the statutory protection in exchange for going forward with his testimony as a quid pro quo for testifying against his own interests.

42                            This distinction offers useful analytical tools to interpret s. 13  in a manner consistent with its wording, spirit and ancestry.  In my view, the key to the proper interpretation of s. 13  is to focus on the incriminating use of  evidence for which the accused would have had a common law privilege to refuse to answer. It is only for that kind of evidence that use immunity was granted by virtue of s. 5  of the Canada Evidence Act  in lieu of the common law right to silence.

43                            When the accused is cross-examined by reference to incriminating evidence that he gave in a judicial proceeding —  whether the protection of s. 5  of the Canada Evidence Act  was claimed or not —  the accused is protected by s. 13  of the Charter .  This is our case.

44                           The question remains whether s. 13  would prevent cross-examination to test credibility on innocuous evidence previously given —  when s. 5  was not claimed — and when the sole purpose is now to challenge credibility.  This was the case in Kuldip, supra, which is still good law.  In such a case, s. 13  does not expand a protection that would not have been available under s. 5  of the Canada Evidence Act .  Section 5  is only available if “but for this Act” the witness would have been excused from answering the question pursuant to the common law privilege. Accordingly, as I indicated earlier, a limited amount of policing by the trial judge before whom the protection is sought is implicit.  Section 5  is only available to shelter a witness from the adverse consequences of evidence that, at common law, he would have never been obliged to provide.

45                            In the result, when the evidence given in a judicial proceeding by a witness who subsequently becomes an accused was incriminating at the time it was given, such that  the witness could have been granted the statutory protection of s. 5  of the Canada Evidence Act , but did not know to ask, the focus should shift to the use that the Crown proposes to make of that evidence at the subsequent trial of the accused.  Clearly, as in Dubois, supra, the Crown is precluded from introducing it as part of its case in chief.  Whether the Crown can confront the accused with his prior incriminating testimony in cross‑examination, purportedly to test his credibility, will depend on whether there is a real danger, despite any warning given to the jury, that the protected evidence may be used to incriminate the accused.  This is so in part because of the quid pro quo.  There should be no risk attached to being compelled to give incriminating evidence, save to answer to perjury or similar charges.

46                           If the prior testimony of the accused was innocuous at the time it was given, it is unlikely that it will serve to incriminate him when it is subsequently used to challenge his credibility. In such a case, as per Kuldip, supra,  the cross-examination should be permitted. If the original evidence was not incriminating, the quid pro quo was never engaged, and the witness cannot ask of the state that he be prevented from being cross‑examined as to his credibility should he assert matters differently in a subsequent proceeding, even if the ultimate effect of that subsequent cross‑examination may be adverse to his interest.  This is consistent with the language of s. 13  which grants to every witness the right not to have any “incriminating evidence so given used to incriminate that witness in any other proceedings” (emphasis added).

47                           There is of course no need to adhere to a strict “double incrimination test” in order to trigger the s. 13  protection.  Such a strict requirement was rejected in Dubois, supra.  The evidence is not required to have been obviously incriminating at the time it was given to prevent the direct use by the Crown to incriminate the accused in his subsequent trial.  (Although I point out that in Dubois the evidence was incriminating at least in part  when it was originally given.)  In other words, the protection is universal when the subsequent use is to incriminate.  But when the prior testimony was incriminating and the Crown, under the authority of Kuldip, supra, purports to use that prior testimony apparently for the sole purpose of testing the credibility of the accused, now a witness in his own trial, the protection of s. 13  is  activated and the cross‑examination will likely be  prohibited.  The key question is whether the evidence is used to incriminate.  This was not the case in Kuldip.  It is clearly the case here.

48                           As I indicated at the outset, the reasons of the majority of the Court of Appeal in this case rest on the assumption that the jury is perfectly capable, if properly instructed, of distinguishing between using evidence to incriminate and using evidence to discredit.  Lamer C.J. in Kuldip had of course accepted that distinction, while he recognized that it was not, at times, free of difficulties.  He analogized the dual use of evidence by reference to the introduction at trial of the criminal record of an accused who takes the stand in his own defence (R. v. Corbett, [1988] 1 S.C.R. 670).  This use of the criminal record is permitted as long as it is aimed at discrediting the accused who elects to testify; it cannot be used to show a propensity to commit crimes.  But, ultimately, the analogy with the use of the accused’s criminal record is in my view of limited utility.  It is often said that an accused who testifies in his own trial is in the same position as any other witness and that his credibility can therefore be tested in the same way by reference to his criminal record.  It is true that the accused is like any other witness, except of course that he comes equipped with the special constitutional shield provided to him by s. 13  of the Charter .  In that sense at least, he is not like any other witness.

49                            There is a fundamental distinction between cross-examining a witness (other than the accused) on the basis of his or her prior statement, and cross-examining the accused on the same basis.  The prior inconsistent statement of a witness is not admissible for the truth of its content, as hearsay.  In contrast, any prior inconsistent statement of an accused is admissible for the truth of its content (either as an exception to the hearsay rule, or as non-hearsay, depending on the preferred definition of hearsay). In any event, this underlines one of the difficulties in instructing the jury to disregard the content of a prior incriminating statement by the accused.  More importantly, there is a great deal of difference between being told to ignore the evidence of predisposition that a criminal record may represent, and being told to ignore the content of an admission of guilt made under oath in another trial. The present case is a glaring illustration of that difficulty. The accused made several incriminating statements, all of which were introduced against him at his trial for the truth of their content.  It is difficult to imagine how a jury would understand that the ones they must disregard are the ones he made under oath at his brother’s trial.

50                           There was no danger in Kuldip, supra, and in B. (W.D.), supra, that the reference to the prior testimony would be used directly by the jury to incriminate the accused.  The accused Kuldip was being cross‑examined on the basis of a statement that he made in his own previous trial on a charge for failing to stop at the scene of an accident, contrary to s. 233(2) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 252).  At his first trial he testified that after the accident, on February 6, 1983, he went to the police station to inform the police of what had happened and spoke to P.C. Brown.  Before his second trial he found out that P.C. Brown was not on duty that day.  So at that trial he testified that he once thought that he had spoken to P.C. Brown on February 6 but now thought it could not have been him.  The Crown wished to cross‑examine him on the basis of his testimony in the first trial on that point.  His original testimony that he had gone to the station and met P.C. Brown the day of the accident was hardly incriminating when it was given.  He did not claim the protection of the Canada Evidence Act  when he gave that evidence, and it is difficult to imagine why anyone would.  It is also difficult to imagine how the Crown could have ever wanted to introduce it in chief as part of its case for an incriminating purpose.  There was no suggestion that it should be used for the truth of its content.  There was clearly no risk that it would be used for any purpose other than to test the credibility of the accused, and no risk that the trial judge, or a hypothetical jury, would be confused and make an improper use of the prior evidence.

51                            Similarly in B. (W.D.), supra, the prior testimony with which the accused was confronted dealt with his alleged unfaithfulness to his wife and contained non‑incriminating admissions related to the charges that he faced.

52                           In contrast, although the prior testimony of the accused in Mannion, supra, was also on its face innocuous when it was given, this Court held that for the Crown to introduce it against the accused at trial, in cross‑examination, could have no other purpose than to incriminate him and therefore would violate s. 13 .  Mannion is a case where it is unlikely that the accused would have sought the protection of the Canada Evidence Act  when he gave his original evidence since that evidence did not “tend to criminate” him when it was given.  In that sense s. 13  is an expansion of the statutory protection, and one fully in line with the broad constitutional protection against compulsory self‑incrimination.

53                            Some would argue that the limited Kuldip exception to the s. 13  protection should be abolished.  It would be said, in part, that the ultimate aim of the Crown is always to incriminate and that therefore a cross‑examination to impeach the credibility of an accused is always, at least indirectly, an attempt to incriminate him.  Furthermore, it could be argued that the risk of the jury misusing the prior testimony, even inadvertently, outweighs the benefit of a full contradictory cross‑examination on credibility.  In my view, there is no need to depart from Kuldip to that extent.  The cogent arguments advanced in that case to allow an accused who testifies to be confronted with prior inconsistent statements made in another judicial proceeding can stand as long as there is no risk that such cross‑examination could amount to a repudiation of the quid pro quo upon which the accused gave evidence in the first place.  If there is any indication that the Crown is using the prior evidence to incriminate the accused directly, as in Dubois, supra, or indirectly as in  Mannion, supra, or that the prior evidence was such that it contained, subjectively or objectively, an element of self‑incrimination, s. 13  is activated and all reference to the testimony is prohibited, even for the sole purpose of challenging the credibility of the accused.  In my view, Kuldip is limited to cases where the reference to the prior evidence is exclusively for impeachment purposes and carries no other risk of incrimination.  In other words, the cross‑examination would be permitted 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.

54                            This is so in part because, as this case illustrates, a cross‑examination on a prior admission of guilt is such that it is asking too much of a jury to ignore the content of the prior admission, particularly when the admission was made under oath in a prior judicial proceeding.  This is different from asking the jury to ignore  the damaging content of a prior criminal record as evidence of bad character or of predisposition to commit the offence.  That, in my view, is challenging enough.  But even in the face of the most legally cogent instructions, it is most likely that the jury would not ignore the content of the prior incriminating testimony.  Frankly, in a case like the present one, the jury would be entitled to doubt that it had correctly understood the distinction, assuming that all jurors correctly perceived its import.  They were told, essentially, that they could use as incriminating evidence the numerous statements that the accused made to the police, but that they could not use for the same purpose the evidence that he gave under oath in a court of law.  A jury could be forgiven for thinking that it may have misunderstood the instruction, unless such instruction was accompanied by a lengthy explanation as to its rationale and purpose.  Even at that, I agree with Fish J.A. that this would be asking the impossible.

55                           I am not casting doubt on the jury’s ability to sort out complicated evidence and its permissible uses. This Court has consistently expressed its faith in the institution of the jury (see for example Corbett, supra).  This faith in the intelligence and common sense of jurors formed the basis of my dissent in R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29.  However, there are cases where the mental gymnastics requested of the jury are, on their face, absurd.  I believe this to be such a case.  Indeed, even the learned trial judge in the present case, a case that required a limiting instruction, expressed some confusion about the proper use of the prior testimony when he referred, in the presence of the jury, to the “double purpose” of the cross‑examination:  to impeach the credibility of the appellant, and to attempt to obtain admissions from him.  This is also why, in part, confessions excluded at common law under the voluntariness rule, or excluded under s. 24(2)  of the Charter , cannot be introduced solely to challenge the credibility of an accused who testifies and denies his guilt (see R. v. Calder, [1996] 1 S.C.R. 660; R. v. Monette, [1956] S.C.R. 400, at p. 402).

56                            While this Court has insisted over the years that jurors be made privy to as much evidence as possible, we have also recognized the necessity to exclude evidence in appropriate cases where the prejudicial effect of its use would overshadow its probative value. This was expressly recognized in Corbett, supra.  The discretion to disallow cross-examination on prior convictions in appropriate cases reflects an overriding concern not to put to the jury evidence that presents an intolerable likelihood of misuse. In addition to the risk of misuse,  there is also a  legitimate societal interest in not eviscerating constitutional protections such as the one provided for in s. 13  of the Charter .

57                             Section 13  of the Charter , whatever its scope, will be viewed by some as standing in the way of the truth-finding process.  However, it has never been the case in our criminal justice system that the search for truth could be pursued at all costs, by all means. This was best stated in the classic words of Vice-Chancellor Sir J. L. Knight Bruce:

The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. . . . Truth, like all other good things, may be loved unwisely —  may be pursued too keenly —  may cost too much. [See Pearse v. Pearse (1846), 1 De G. & Sm. 12, 63 E.R. 950, at p. 957.]

58                           In this light, the prohibition against any reference to prior incriminating evidence also reflects a more fundamental principle, which is at the heart of s. 13 .  That principle is the trade‑off between the right of the state to compel, under the threat of legal sanctions, the evidence of each and every one of us, under oath, in public, in a court of law, and the need for the state to prove its case without the compelled self‑incriminating evidence of the accused.  That trade‑off, reflected in s. 13  of the Charter , is a critical feature of the administration of justice that courts are required to protect and uphold.  Only in the exceptional circumstance reflected in a case like Kuldip, supra, should courts be satisfied that there is no repudiation or betrayal of the conditions under which the witness, now accused, chose to give the potentially damaging evidence rather than face the alternative sanction of a finding of contempt of court. This is not based on any distrust of juries. It is based on the apparent absurdity of asking juries to disregard a confession under oath, and on the unfairness of allowing them to give effect to it.

B.  Cross-Examination on Awareness of the Law

59                           One final comment in relation to s. 13 .  The appellant argues that no reference should have been made, during his cross-examination, to his awareness of the statutory and constitutional protection offered by s. 5  of the Canada Evidence Act  and s. 13  of the Charter  respectively.  I agree. In the rare circumstances where it will be permissible to cross-examine an accused on the basis of his prior testimony, the cross-examination will only be directed at his credibility.  I see no reason not to apply the rationale of this Court’s decision in R. v. Jabarianha, [2001] 3 S.C.R. 430, 2001 SCC 75, to this case now before us.  Essentially, whether the probing of the knowledge that the witness may have of the law is done when his original evidence is given, or whether it is pursued when he gives inconsistent evidence on a subsequent occasion, it is not clear what inference is to be drawn from the witness’s perception of the legal protection available to him or her.  In Jabarianha, for example, the suggestion was that the witness was lying when he testified that he, and not the accused, was responsible for the offence, and that he knew that he could falsely confess with impunity in light of the s. 13  protection.  Here, on the other hand, the Crown was suggesting to the appellant that he told the truth when he incriminated himself at his brother’s trial because he knew that he could do so with impunity in light of the protection of s. 13 .  It seems to me that, apart from the cogent reasons advanced in Jabarianha not to permit this line of cross-examination, the simple fact is that knowledge of the legal protection does not yield an inference in relation to truthfulness one way or the other.  This line of questioning should not have been permitted in this case.

C.  The Other Grounds of Appeal

60                            It is conceded that the trial judge’s instructions on reasonable doubt were not in accordance with the decisions of this Court in Lifchus, supra.  Specifically, the errors in the trial judge’s charge are said to be similar to those encountered in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, and R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.  Since the case must go back for a new trial on the s. 13  issue, it is unnecessary to decide whether the instructions were sufficiently flawed to have required a new trial on that ground alone.

61                            As for the treatment by the trial judge of the expert evidence, in my view the instructions were not deficient to the point of constituting a misdirection.

VI.  Conclusion

62                            For these reasons, the appeal is allowed, the judgment of the Court of Appeal is set aside and a new trial is ordered.

The following are the reasons delivered by

L’Heureux-Dubé J. (dissenting) —

I. Introduction

63                            Truth is essential to justice.  The law respecting the privilege against self-incrimination seeks to foster both by promoting the search for truth.  The nuanced approach of Lamer C.J. in R. v. Kuldip, [1990] 3 S.C.R. 618, in my opinion, achieved that result while preserving the fundamental privilege against self-incrimination.  Kuldip has been the law in this country for the last 12 years.  No cogent reasons have been presented to indicate that any aspect of Kuldip is bad law.  Besides, neither the majority nor the dissent in the Court of Appeal in the case at bar, nor for that matter the parties before us, presented arguments or asked for the reversal of any facet of Kuldip.  Notwithstanding this, my colleague in fact reverses parts of Kuldip.  I dissent.

II.  Facts

64                            In this case, the appellant is charged with the murder of Éric Arpin, a nine-year-old boy who was killed in the basement of the home where the appellant lived.  This boy was killed, it is alleged, by the appellant’s brother Serge Noël, while the appellant held down the victim’s legs.  There is some evidence that both the appellant and Serge engaged in some form of sexual activity with the victim prior to his death.

65                            Serge was charged with murder.  As noted by the majority in the Court of Appeal, the appellant was called by the Crown as a witness at Serge’s trial.  In his sworn testimony, the appellant incriminated himself in the victim’s murder.  At his own trial for murder, the appellant chose to take the stand in his own defence and, after doing so, recounted a somewhat different story from the one he had told under oath at Serge’s trial.  The Crown, in cross-examination, sought to test the appellant’s credibility by making reference to his previous testimony.  The appellant was convicted.  His conviction was upheld on appeal by a 2-1 majority.  This case comes to us as of right on the basis of the dissent in the Court of Appeal.  The dissent was based on three issues, which issues are set out and dealt with below.

III. Issues

66                            Like Arbour J., I will proceed to deal with the three issues in the same order in which she dealt with them.  They are as follows:

(A) Was the cross-examination of the appellant illegal or improper?

(B) Did the trial judge err in his instructions respecting the burden of proof the jury were required to apply?

(C) Did the trial judge err by failing to appropriately instruct the jury with respect to the manner in which they were to use the expert evidence?

IV. Analysis

A. The Cross-Examination

(1)   The Quebec Court of Appeal (2001), 156 C.C.C. (3d) 17

67                            This issue was fully canvassed by the Quebec Court of Appeal, both by the majority and by the dissent.

(a)   The Majority Decision (Proulx and Chamberland JJ.A.)

68                            The majority in the Court of Appeal held that the Crown’s cross-examination was appropriate.  They agreed that the Crown’s questions were directed toward undermining the appellant’s credibility.  They recognized as well the tenuous nature of the distinction between using the evidence to undermine the accused’s credibility, and using the evidence to incriminate the accused.  Notwithstanding this difficulty, the court was of the opinion that this Court’s decisions (notably in Kuldip, supra) permitted this form of cross-examination, subject to appropriate instructions to the jury regarding the proper use of this evidence.  This jury, it was held, could make the proper distinction as a result of the trial judge’s instructions.  With respect to the questions about the appellant’s knowledge of the nature of his testimonial rights, the majority held that these questions did not unduly influence the jury given the fact that there were few such questions asked during the course of a long cross-examination which focussed almost exclusively on the prior inconsistent statements.

(b)   The Dissent (Fish J.A.)

69                            On the question of the Crown’s cross-examination, Fish J.A. acknowledged, at para. 180, that such cross-examination is permitted as long as its sole purpose is to undermine the accused’s credibility: prior testimony cannot be used to incriminate the accused.  Fish J.A. relied on Kuldip for this statement of law.  He held that the Crown’s cross-examination crossed into incriminating territory and, as a result, was not permissible.  Fish J.A. took special note of a 40-page passage from the record where, it is alleged, Crown counsel simply read in page after page of evidence from the previous trial.  This stopped once defence counsel interjected.  Fish J.A. concluded from this, and from other passages taken from the transcript, that the cross-examination had gone too far by seeking to obtain from the appellant admissions that what he had said at his brother’s trial was true.  He believed that no instructions to the jury could have saved this cross-examination.

(2)   History and Purpose of the Laws Relating to Self-Incrimination

70                            The law with respect to the permissible scope of cross-examination on prior testimony is best understood in its historical and comparative context.  I will deal with this context as part of my examination of the modern authorities in Canada dealing with this topic.

71                            The law governing self-incrimination is generally found in two provisions.  The first, being s. 13  of the Canadian Charter of Rights and Freedoms , reads as follows:

13.  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, except in a prosecution for perjury or for the giving of contradictory evidence.

The second provision of note is s. 5  of the Canada Evidence Act, R.S.C. 1985, c. C-5  (the “CEA ”), which provision is set out here:

5.  (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 5  of the CEA  exists in every province in a form similar to the federal section.

(a)   Section 5 of the Canada Evidence Act

72                            While s. 13 of the Charter  has only been in force for approximately 20 years, s. 5  of the CEA  has a longer history in Canadian law.  Section 5  first appeared in 1893, as s. 5 of The Canada Evidence Act, 1893, S.C. 1893, c. 31.  It reads as follows:

5.  No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or any other person: Provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him other than a prosecution for perjury in giving such evidence.

This section replaced the old common law privilege against self-incrimination whereby a witness was entitled, at any proceeding, to claim a privilege of silence.  At common law, the witness could not be compelled to testify in any proceeding.  The original s. 5 replaced this privilege with a provision compelling the witness to testify.  In exchange for the lost privilege of silence, the witness was guaranteed that his evidence would not be used against him in any other criminal proceeding except, as I shall demonstrate, in certain cases.

73                            When the original s. 5 came up for debate in the House of Commons, the general theme espoused by the Minister of Justice was that it was designed to protect any witness from questions “which would tend to criminate him”: House of Commons Debates, vol. XXXVI, 3rd Sess., 7th Parl., March 3, 1893, at p. 1695 (Sir John Thompson).  Rising in support of the wording employed in the old s. 5, the Hon. David Mills stated the following, at p. 1697:

The only change made is, that a person is compelled to give evidence that would incriminate himself, but he cannot be incriminated by so doing.  [Emphasis added.]

These comments evince a clear legislative intention that s. 5 ought to apply to protect witnesses from having their compelled testimony subsequently used in an incriminating manner.  To “be incriminated” is to be incriminated at a later proceeding.  As a matter of logic, it does not follow from a prohibition against future “incriminating” use that there exists in s. 5 a prohibition against any use of the testimony, be it incriminating or otherwise.

74                            This obvious statement explains a component of s. 5 that is most often forgotten by those who would apply the prohibition to all types of subsequent uses of the testimony.  Those who argue that s. 5 is meant to prevent any subsequent use of the testimony for any purpose rely exclusively on certain words enacted in the old s. 5 which survive to the present day.  This wording indicates in ostensibly unqualified language that “the answer so given shall not be used or admissible in evidence against him”.  As a matter of legislative interpretation, such a representation of the meaning of s. 5 ignores the proviso in s. 5(2)  that a witness is only entitled to request protection under s. 5 where the evidence “may tend to criminate him, or may tend to establish his liability to a civil proceeding”.  This reference to incrimination is undoubtedly a reference to the incriminating use of the testimony in subsequent proceedings.  Naturally, a person who is called to testify in a matter that will not result in her own incrimination or liability does not fear present incrimination or liability.  To take an example, a simple witness called to testify at a friend’s murder trial has no fear of being found guilty of murder in the friend’s proceeding, as the witness has not been charged with murder.  The fear that the witness might have relates wholly to potential future incrimination or liability.  It is this fear that Parliament sought to address when it decided to provide the original protection against self-incrimination.  Properly understood, the purpose of s. 5 is indelibly linked to incrimination.  Subsequent incriminatory use is absolutely forbidden.

75                            Curiously, the original s. 5 was ambiguous regarding whether the witness must claim the s. 5 right in order to take advantage of it (as with the common law privilege).  Early Ontario cases held that, absent language in the statute requiring that the witness claim the s. 5 right, the right accorded by s. 5 existed whether the witness claimed it or not: see, for example, R. v. Hendershott (1895), 26 O.R. 678 (H.C.), and R. v. Hammond (1898), 29 O.R. 211 (Div. Ct.).  In 1898, Parliament amended s. 5 to require that witnesses claim the right at the original proceeding in order to take advantage of it at a later date: see An Act to amend the Canada Evidence Act, 1893, S.C. 1898, c. 53.  This amended version of the original s. 5 is the one that, with slight modifications, survives to the present date.

76                            Despite the fact that s. 5  had been in force for nearly a hundred years prior to this Court’s decision in Kuldip, supra, no reported cases before it seem to have dealt with the issue of whether prior testimony can be put to the witness so as to impugn that person’s credibility.  In R. v. Wilmot, [1940] 2 W.W.R. 401 (Alta. S.C., App. Div.), Harvey C.J.A. wrote, in dissent, that “an accused person cannot be contradicted in respect to evidence given under the specified conditions or even cross-examined with respect to it” (p. 414).  This comment can be interpreted to suggest that s. 5  of the CEA  provides a blanket immunity against subsequent use of the testimony given under the umbrella of legislative protection.  Wilmot did not deal at all with distinguishing between permissible and impermissible uses of the evidence, though, and any reliance on that language as determinative of the issue would be incorrect.  Indeed, none of the cases relied upon by my colleague to support her interpretation of s. 5  as imposing an absolute use immunity actually involved an attempt by the Crown to adduce the evidence so as to impugn the accused’s credibility.

77                            Essentially, there are no cases prior to Kuldip (and its immediate predecessors) that attempt to distinguish between legitimate and illegitimate uses of prior statements made under the protection of s. 5 .  In fact, the case at bar is the first case I can find where counsel attempted to undermine an accused’s credibility through the use of testimony given while under the protection of the CEA .  The lack of precedent is surprising, given the wording of s. 5  and the comments of members of Parliament that it is meant to protect the witness from incriminating use as opposed to all forms of use.

(b)   Section 13 of the Charter

78                            The above comments, while focussing on s. 5  of the CEA , apply with equal vigour to s. 13  of the Charter .  Section 13  in fact more explicitly delineates the two uses to which prior testimony can be put, be it to incriminate (impermissible) or to impugn credibility (permissible).  The right accorded by s. 13  is a right “not to have any incriminating evidence so given used to incriminate that witness in any other proceedings” (emphasis added).  There is no prohibition against using evidence in a manner so as not to incriminate the witness by, for instance, attacking his credibility.

79                            Unfortunately, there is no discussion in the transcript of the Special Joint Committee on the Constitution of Canada respecting the appropriate uses to which testimony covered by s. 13  could be put.  One issue arising from the creation of s. 13  that brought about a great deal of discussion was the scope of the protection offered by s. 13  relative to that offered in s. 5  of the CEA .  One author, for instance, noted the fact that courts would provide s. 5  protection to witnesses in cases where no determination had been made as to whether the evidence put forward was incriminating at the time: see F. Maczko, “Charter of Rights : Section 13 ” (1982), U.B.C. L. Rev. (Charter  ed.) 213, at p. 219.  The author points out that s. 13  could be interpreted to require that the court in the second proceeding determine if the testimony was inculpatory or exculpatory at the time it was given.  Such an interpretation, the author points out, would provide a lesser form of protection under s. 13  than under s. 5 .

80                            The same could be said (and has been said) about the interaction of ss. 5  and 13  relative to the right to cross-examine witnesses on matters going to their credibility.  Some commentators feel that the different wording employed in these two sections militates in favour of a different form of protection.  The Charter , it is argued, creates an express distinction between incriminatory and non-incriminatory statements, while the CEA  does not.  As such, some regard the protection provided by the Charter  as a lesser form of protection for prior testimony.  This is inherently unfair, as it provides an absolute protection to those who request protection, and an attenuated protection for those who do not.  The inherent unfairness of providing different levels of protection is even more striking when one considers the fact, noted by Arbour J. in her reasons, that most witnesses come to court without the advice of counsel.  To provide an absolute use immunity only to those witnesses who can afford a lawyer who will advise them to seek protection under the CEA , or to those intelligent or lucky enough to figure this out on their own, is, in my opinion, manifestly unfair.  I observe that this argument found favour with Martin J.A. in R. v. Kuldip (1988), 40 C.C.C. (3d) 11 (Ont. C.A.).  To resolve this apparent difficulty, Martin J.A. held that s. 13  creates an absolute prohibition against any subsequent use of the evidence. 

81                            As my above comments attest, reading ss. 5  and 13  in a different manner respecting the scope of protection they provide does not give proper credence to the wording of the two sections as well as the purposes underlining their enactment.  Moreover, as will be seen later, this Court in Kuldip, supra, has already recognized that the protection granted by these two sections is coterminous.

(3)   General Principles of Evidence — The Search for Truth

82                            This interpretation of ss. 5  and 13  is in keeping with the general principles animating the rules of evidence employed in our criminal process.  A thorough analysis of the purposes served by the rules of evidence is to be found in two commendable articles: see D. M. Paciocco, “Evidence About Guilt: Balancing the Rights of the Individual and Society in Matters of Truth and Proof” (2001), 80 Can. Bar Rev. 433, and R. C. C. Peck, “The Adversarial System: A Qualified Search for the Truth” (2001), 80 Can. Bar Rev. 456.  In the first article, Paciocco observes, rightly in my opinion, that “the primary criteria [sic] in considering the virtue in the rules of evidence is the extent to which those rules facilitate the search for the truth” (p. 436).  Paciocco goes on to note two decisions by this Court where the goal of truth is espoused.  In R. v. Levogiannis, [1993] 4 S.C.R. 475, I state, at p. 483, that “[t]he goal of the court process is truth seeking”.  Three years later, Cory J. observed in R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 13, that “[t]he ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth”.

83                            I have also, on other occasions, spoken about the goals and purposes the criminal justice system must serve.  My comments in R. v. Howard, [1989] 1 S.C.R. 1337, at p. 1360, remain appropriate to this day:

One cannot over‑emphasize the commitment of courts of justice to the ascertainment of the truth. The just determination of guilt or innocence is a fundamental underpinning of the administration of criminal justice. The ends of the criminal process would be defeated if trials were allowed to proceed on assumptions divorced from reality. If a careless disregard for the truth prevailed in the courtrooms, the public trust in the judicial function, the law and the administration of justice would disappear. Though the law of criminal evidence often excludes relevant evidence to preserve the integrity of the judicial process, it is difficult to accept that courts should ever willingly proceed on the basis of untrue facts.

84                            More recently, in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, I made the following remarks (at para. 31):

This Court has taken a flexible approach to the rules of evidence, “reflect[ing] a keen sensibility to the need to receive evidence which has real probative force in the absence of overriding countervailing considerations”: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 623. In the specific context of hearsay evidence, Lamer C.J. speaking for a unanimous Court in Smith, supra, at p. 932, explained that “[t]he movement towards a flexible approach was motivated by the realization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross‑examination.”  Our motivation in reforming the rules of evidence has been “a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth”: Levogiannis, supra, at p. 487. These principles must guide all of our evidentiary reform endeavours.

I continue to hold firm to the belief that these principles ought to guide this Court in its deliberations on matters of evidence, including those dealing with the meaning of ss. 5  and 13 .  Preventing the jury from hearing evidence going to the heart of the accused’s credibility on the grounds that the jury are incapable of properly using it for this just purpose would, in my view, add a barrier to the truth-seeking process which is both unjustified and unjust.  My comments below regarding the role of the jury will enunciate this concern more clearly.

85                            In “The Adversarial System: A Qualified Search for the Truth”, supra, the author forcefully defends the notion that the search for truth must be qualified in appropriate circumstances where other more valuable principles apply.  Ensuring that an accused receives a fair trial, deterring police misconduct, and preserving the integrity of the administration of justice are all laudable goals to which this Court must strive in its rules of evidence, at times to the detriment of full access to the truth.  Where these goals are met, however, the search for the truth must, in my view, be the preponderant consideration.

86                            With respect to s. 5  of the CEA  and s. 13  of the Charter , these provisions go a long way to ensure that the truth is told.  A potential witness who would otherwise shy away from telling the truth for fear of subsequent punishment can freely give evidence knowing full well that it will not be used to incriminate him or her.  The present case provides a cogent example of this.  Absent the protection afforded him by the law, it is highly unlikely that the appellant would have been as eager to testify at his brother’s trial in the manner in which he did.  A provision that encourages the witness to testify to the truth in this manner thus serves the fundamental purpose of getting to the truth.  In this sense, my colleague’s comments that the witness enters into a contract of sorts are particularly apt.  In exchange for the witness’s testimony, the Crown provides a quid pro quo: the testimony will not be used so as to incriminate the witness.  The fear of future incrimination, which fear compels the witness not to assist the trier of fact in the search for truth, is thereby removed.  Without this fear, the evidence is put forward, and the truth is better ascertained.

(4)   The Role of the Jury in the Criminal Process

87                            In a case such as the present one where fundamental concerns of truth, guilt and credibility arise, one must be mindful of the role the jury are asked and should be asked to play in the criminal justice system.  In my opinion, Arbour J.’s decision calls into question the jury’s ability to discharge their duties as the final arbiters of fact and truth.

88                            When the Law Reform Commission of Canada set out in the late 1970s and early 1980s to review the law respecting jury formation, jury instructions and other aspects of the jury system, their first task was to come to some conclusions regarding the appropriateness of maintaining juries at all as part of the criminal justice process.  In its 1980 working paper, the Commission’s views are clearly set out:

We are satisfied that the institution of the jury performs a number of valuable functions in the criminal justice system.  Our views on the value of the jury are shared by the Canadian public, trial judges across the country and jurors themselves.

. . .

. . . a survey of Canadian jurors, revealed that the strongest supporters  of the jury system are those who are perhaps in the best position to assess its merits — the jurors themselves.  A favourable overall view of the jury system was held by 96 per cent of the jurors responding to our survey.

We concluded from our study that the jury system should be retained.

(Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980), at p. 2)

The Commission goes on to point out, at p. 6,  that the jury ought to be regarded as capable of making an accurate determination of the facts in issue:

. . . some commentators allege that the most compelling justification for  retention of the jury is that it is a better fact-finder than the judge.  For example, Lord du Parcq has asserted that “when questions of fact have to be decided . . . there is no tribunal to equal a jury”. [H. du Parcq, Aspects of the Law (1948), at p. 10]  Lord Halsbury said: “As a rule, juries are in my opinion, more generally right than judges.” [(1903), 38 Law Journal 469]  It has even been contended that the jury was “adapted to the investigation of truth beyond any other [system] the world can produce”. [“The Changing Role of the Jury in the Nineteenth Century” (1964), 74 Yale L.J. 170, at p. 172, n. 8]

The Commission then sets out its reasons for affirming the jury as the best arbiters of fact, making reference to several studies showing that juries base their decisions on a thorough review of the record and, generally, are quite capable of understanding the case before them.  I do not wish to delve any further into this empirical evidence, as this type of evidence was not presented to this Court in the present appeal.  It suffices to note that the Law Reform Commission has conducted such a review, and has come to the conclusion that the jury system ought to be retained, not because it is the lesser of any number of evils, but because it is considered to be the best arbiter of truth and evidence.  In its subsequent report, the Commission again reiterates that any reform to the jury system should fall short of actually fundamentally altering it, or removing it entirely: Law Reform Commission of Canada, Report 16,  The Jury (1982), at pp. 5-6.

89                            Given this appraisal and affirmation of the jury as a body fully capable of discerning the truth from the facts presented to it, and given the fact that Parliament has not seen fit to abolish the jury system in Canada, it is not proper for this Court to base its decision on a misconception of the jury as a body incapable of properly dealing with difficult evidence.  No evidence was before the Court in the present case to suggest that juries are, as a whole, unable to use prior testimony in an appropriate manner.  Absent such evidence, there does not appear to be a pressing need to make a fundamental change in the law of evidence so as to exclude in all cases a whole series of prior inconsistent statements made while testifying.  I reiterate that evidence that the jury as an institution is fundamentally incapable of properly using this evidence is needed before such a sweeping change should be made.

90                            Eliminating a significant amount of evidence that strikes at the heart of any witness’s credibility is also not, in my view, a proper expression of the law, keeping in mind this Court’s previous statements respecting evidence in the context of a jury trial.  In R. v. Corbett, [1988] 1 S.C.R. 670, the Supreme Court dealt with a constitutional challenge to s. 12(1) of the Canada Evidence Act, R.S.C. 1970, c. E-10.  This section allowed for the cross-examination of accused persons with respect to the existence of any prior convictions.  The Court acknowledged the prejudicial effect of admitting such evidence, namely the effect of inculcating in the minds of jurors the notion that prior convictions are determinative of present guilt.  The Court, however, recognized the value of exposing before the jury these previous convictions on the basis that their exposition might serve to undermine the accused’s credibility.

91                            The existence in Corbett of an acknowledged dual purpose to the admission of such evidence (one purpose being legitimate, the other being prejudicial) did not prevent the Court from holding, at pp. 690-91, per Dickson C.J., that the jury ought to be exposed to such proof, with the appropriate caution on the use to which they could make of it:

There is perhaps a risk that if told of the fact that the accused has a criminal record, the jury will make more than it should of that fact. But concealing the prior criminal record of an accused who testifies deprives the jury of information relevant to credibility, and creates a serious risk that the jury will be presented with a misleading picture.

In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

These comments apply with equal weight to the legal issues before the Court in the case at bar.  In the present case, admitting prior testimony will generally serve both to incriminate the appellant and to undermine his credibility.  The former use is prejudicial, while the latter is, in my estimation, proper.  The jury should be given a chance to make use of this type of evidence, subject to appropriate instructions indicating that they are not to use prior testimony to incriminate the appellant.  This is the balance which s. 5  of the CEA  as well as s. 13  of the Charter  are designed to strike.

92                            This Court ought to be wary of any arguments that proceed to exclude evidence on the basis of the jury’s inability to handle it.  Indeed, Fish J.A. took the view that no instructions to this jury could have rendered the admission of this type of evidence permissible.  In response to these assertions, I take great comfort in the words of our former Chief Justice in Corbett, supra, at p. 692:

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark. [Emphasis in original.]

The point is made even more strongly in a passage from R. v. Lane (1969), 6 C.R.N.S. 273 (Ont. S.C.), at p. 279, per Addy J., quoted in Corbett, supra, at p. 695:

. . . I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries, and what has been regarded for centuries as a bulwark of our democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion.

93                            I also take comfort in the fact that this Court and all courts in Canada have, from time immemorial, allowed counsel at trial to put to the witness during cross-examination prior inconsistent statements.  The jurisprudence is clear that such statements are admissible for the purposes of undermining the witness’s credibility, but are inadmissible for any other purpose (most notably, for the purpose of incriminating the witness as accused).  The case law has never deemed it improper to put this evidence to the jury, subject to appropriate instructions from the trial judge regarding the one use which the jury may make of this evidence.  Support for this proposition can be derived from three cases decided in this Court: see Miller v. White (1889), 16 S.C.R. 445, at pp. 452-53; R. v. Bevan, [1993] 2 S.C.R. 599, per Major J.; and R. v. Livermore, [1995] 4 S.C.R. 123, per McLachlin J. (as she then was).  None of these cases express concerns that, notwithstanding proper instructions, the jury would still be incapable of making proper use of the evidence.  It would be inconsistent with this line of cases to determine that prior testimony, which is in substance a form of prior statements, cannot be put to a jury, whereas other, pre-trial statements, can.  If the jury are capable of properly using one form of inconsistent statement, what makes them incapable of using the prior inconsistent statement rendered at trial?

(5)   Recent Supreme Court Jurisprudence

94                            This Court’s jurisprudence on the issue of the use of self-incriminating testimony is consistent with the principles outlined above.

95                                    In R. v. Dubois, [1985] 2 S.C.R. 350, the appellant testified at his first trial and was convicted.  A new trial was eventually ordered where the Crown attempted to tender as evidence statements the appellant made at his previous trial.  The appellant’s testimony at the first trial was not given under the protection of s. 5  of the CEA .  The Supreme Court was asked to consider whether this evidence was inadmissible pursuant to s. 13  of the Charter .

96                            Lamer J., as he then was, speaking for the majority, held that the evidence was inadmissible.  In so doing, he noted the intimate connection between the right against self-incrimination and the right not to be compelled to testify in one’s own proceeding, which right is guaranteed by s. 11 (c) of the Charter .  Both sections function as part of the adversarial process whereby it is up to the Crown to make the case against the accused without the accused’s assistance.  The Court held that the purpose of s. 11 (c) would be thwarted if the accused’s prior testimony was used in the subsequent proceedings.  Such actions would accomplish indirectly what the Crown cannot do directly, namely, force the accused to testify in their own process:

Hence, 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. . . . It guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings.

(Dubois, supra, at p. 358 (emphasis added))

The Court concludes that use of such prior testimony as part of the Crown’s case in chief is absolutely not permitted, as it amounts to an incriminating use.  The decision in Dubois reflects an appreciation of the fact that s. 13  of the Charter  (and, by analogy, s. 5  of the CEA ) is designed to prevent subsequent use of the testimony in an incriminating manner.

97                            In R. v. Mannion, [1986] 2 S.C.R. 272, this Court first explicitly recognized the distinction between using prior testimony for the purposes of incriminating the accused, and using prior testimony to attack that person’s credibility.  The former was held to be an impermissible use.  Mannion did not decide whether this type of evidence is inadmissible when tendered to undermine credibility.  McIntyre J., in speaking for the Court, further observed that when s. 5  of the CEA  is involved, an absolute prohibition on subsequent use of the testimony would apply.  These comments were obiter, as s. 5  protection had not been claimed by the accused at his first trial.

98                            The first case to deal directly with the use of prior testimony in order to impeach an accused’s credibility is Kuldip, supra.  In that case, the respondent was charged under s. 233(2) of the Criminal Code, R.S.C. 1970, c. C-34, with failure to stop at the scene of an accident.  The respondent testified, was convicted, but the case was then sent back for a new trial.  At the first trial, the respondent testified that he visited a police station on the day of the accident and spoke to a police constable named Brown.  The respondent’s testimony was that — on a subsequent visit to the police station — P.C. Brown stated that he remembered seeing the respondent at the police station on the day of the accident.

99                            At the respondent’s second trial, P.C. Brown was called to give evidence.  He stated that he was not working at the station on the day of the car accident.  The respondent took the stand and changed his story to say that he thought he remembered P.C. Brown being on duty the day of the accident, when he in fact was not.  The respondent at the second trial even reasoned that P.C. Brown could not have been on duty that day.  The respondent was confronted by the Crown with the apparent contradiction in the evidence.  First of all, the Crown read in the questions and answers from the first trial in which the respondent testified that P.C. Brown was present.  The relevant parts of the exchange between the Crown and the accused that followed are set out at pp. 623-24 of the decision:

Question

Do you recall being asked those questions and giving those answers?

Answer

It certainly is familiar.  So, I would have to say yes, if it’s on the transcript.

Question

Were you trying to tell the truth on the last occasion?

Answer

I was.  I certainly, by no means, meant to lie.

Question

Can you explain, sir, how you not only recall that P.C. Brown was present on the 6th of February, but that he actually remembered you, according to your evidence, when you returned on the 2nd of May [sic]. . . .

Answer

Well, if I said that, that’s what the officer said the day that I visited him.

Question

I see.  I take it from that answer that it was the officer who was initially confused and his confusion confused you?  Is that right?

Answer

Sorry, I don’t understand.

Question

Well, you say - you say you must have said that because the officer told you he remembered you?

Answer

Of course.

The Crown argued that the purpose of these questions was to undermine the respondent’s credibility.

100                        The Ontario Court of Appeal held that this cross-examination was improper.  Speaking for the court, Martin J.A. held that s. 5  of the CEA  imposed a blanket prohibition against subsequent use of a witness’s testimony, be it to incriminate the witness or to undermine his or her credibility.  Given this blanket prohibition, Martin J.A. felt that it would be unjust to offer a lesser form of protection under s. 13  of the Charter , namely, protection only from subsequent incriminating use.

101                        On appeal, this Court held that both s. 13  and s. 5  permit a party to cross-examine another using prior testimony so long as the purpose of the cross-examination is to undermine the witness’s credibility.  Lamer C.J. speaking for the majority, referred at p. 632 to the following comment of Vancise J.A. in R. v. B. (W.D.) (1987), 38 C.C.C. (3d) 12 (C.A. Sask.), at p. 23, in which the learned justice dealt with using a prior statement to discredit the accused:

Such use of a previous statement does not violate the purpose of s. 13  when viewed from the context of s. 11 (c) and (d), which is to prevent the accused from being indirectly compelled to incriminate himself.  Its purpose is not to insulate the accused from exposure where he has related inconsistent and conflicting evidence, or to protect him from being exposed to a test of credibility.

102                        To the same effect are the comments of Craig J.A. in Johnstone v. Law Society of British Columbia, [1987] 5 W.W.R. 637 (B.C.C.A.), at p. 652:

We are constantly telling juries that a criminal trial is not a contest between the state and the accused but that, rather, it is a solemn inquiry which is conducted in accordance with certain principles with a view to ascertaining the truth. The major concern of every trier of fact is whether the evidence is credible — or to use Wigmore’s expression, the “trustworthiness” of the evidence. Wigmore states that “no safeguard for testing the value of human statements is comparable to that furnished by cross‑examination . . .” [citation omitted]. Although the Charter  may produce a change in some of what I term traditional views in the law, I doubt that the framers of the Charter  ever intended that when a trier of fact is assessing the credibility of a witness he cannot consider his previous testimony on the same subject except when the sole purpose of such examination is to incriminate the witness, as in the Mannion case. To hold that any cross‑examination of an accused (or a person in the position of Johnstone) on previous testimony contravenes s. 13  is an unwarranted extension of the right guaranteed by s. 13 .  [Underlining added; italics in original.]

These comments were affirmed by Lamer C.J. at pp. 633-34 of Kuldip, supra.

103                        The two passages cited by Lamer C.J. indicate most clearly the precise scope of protection afforded by s. 5  of the CEA  and s. 13  of the Charter .  These provisions prevent the subsequent use of testimony for the purposes of incriminating the accused.  Using the testimony so as to attack the accused’s credibility is, on the other hand, permitted.

104                        Lamer C.J. acknowledged, in Kuldip, that evidence of this sort has a tendency to be probative both of the accused’s credibility and of the accused’s guilt.  As the trier of fact is not entitled to use such evidence to incriminate the accused, Lamer C.J. felt that a trial judge would have to be clear in instructing a jury on when and how they can use the previous testimony.  This would prevent improper use of the evidence.  These comments by Lamer C.J. plainly support the notion that using prior testimony to attack an accused’s credibility can and often does have an impermissible incriminating impact upon the accused.  The very evidence involved in that case could have been used by a jury as incriminating proof that the accused did not present himself at the police station on the day of the accident.  It could also have been used to undermine the later story that the accused had in fact been at the police station on the day in question.  There was thus an incriminating element to the proof.  Notwithstanding this, the Court was prepared to admit the evidence, subject to a proper charge to the jury on the appropriate use which they were to make of it.

105                        The Court also addressed the concern that its decision, based as it was on s. 13  of the Charter , would lead to unfairness by providing a lesser form of protection than that apparently offered through s. 5  of the CEA .  As discussed earlier, providing different levels of protection based on whether the protection was claimed hardly seemed appropriate.  The Court concluded that ss. 5  and 13  provide the same protection.  The only difference between the two sections was that s. 5  protection had to be requested, whereas s. 13  protection was automatically given.

106                        These conclusions of law are clearly set forth by Lamer C.J. in Kuldip, at p. 639:

In my opinion, the protection offered by s. 5(2) , namely, the guarantee that “the answer so given [by the witness] shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place . . .”, must be interpreted in consideration of the express purpose of allowing the witness to make an objection under s. 5(2) . This purpose is expressed clearly in the opening words of s. 5(2)  that impose the substantive condition to be fulfilled before the section is made operative: a witness is entitled to object to a question on the grounds 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 . . .”.  Since the witness is only entitled to object to a question on the grounds that the answer to the question will tend to criminate him, it is only logical that he be guaranteed, in exchange for compelling him to answer the question, that his answer will not be used to criminate him in a subsequent proceeding. A further guarantee that such answer will not be used in cross‑examination to challenge the witness’s credibility at a later proceeding would extend beyond the purpose of s. 5(2) .  With respect for contrary views, testimony given by a witness at a proceeding may, notwithstanding an objection under s. 5(2) , be used at a subsequent proceeding in cross‑examining the witness if the purpose of such use is to impeach his credibility and not to incriminate the witness.

107                        This leads to the following conclusion, at p. 642, regarding the interpretation of both s. 5  and s. 13 :

It is thus apparent that Martin J.A.’s legitimate policy concern that s. 5  of the Canada Evidence Act  and s. 13  of the Charter  not provide different protection for an accused, against the use of incriminating statements, does not, in my view, arise. Section 5(2)  and s. 13  offer virtually identical protection: a witness who testifies in any proceeding has the right not to have his or her testimony used to incriminate such witness at a later proceeding. Neither s. 5 nor s. 13  prevents the Crown from using the testimony in cross‑examination at the later proceeding for the purpose of undermining the witness’s credibility.  The difference between these sections is that s. 5(2)  requires an objection at the first proceedings while s. 13  does not.

Any interpretation of the law that provides for greater use immunity when s. 5 is involved, as opposed to s. 13 ,  runs completely contrary to the clear expression of law enunciated in Kuldip.

108                        In my opinion, this Court ought to apply the clear principles enunciated in Kuldip, supra, to the facts of this case, rather than changing the laws of evidence.  Kuldip provides for one set of rules to be applied, whether the claim is based on the Charter  protection or that provided under the CEA .  The law is clear.  If the prior testimony is being tendered so as to incriminate the accused, the evidence is inadmissible.  If, on the other hand, the purpose for putting forward the evidence is to undermine the accused’s credibility, the evidence ought to be admitted, subject to an appropriate charge by the trial judge to the jury.  This has been the state of the law for 12 years.  It is a settled matter with which this Court ought not to interfere, absent reasons to suggest that Kuldip was wrongly decided.  In my opinion, Kuldip strikes an appropriate balance between the rights of the accused not to have their previous evidence used to incriminate them, and the need for the jury to be exposed to as much of the truth as can be permitted in a just society.  This is the balance that ss. 5  and 13  seek to strike, and this is the balance that this Court ought to uphold.

109                        The result in Kuldip was favourably received by two authors who wrote the following:

Since the purpose of the legislation [referring to ss. 5  and 13 ] is pursuit of truth, it would be very odd to allow such legislative provisions to inhibit that search by permitting a witness to tell one story at trial, and a different story at another trial, and yet be shielded from confrontation with the earlier statement.  It is one thing to protect the witness against directly incriminating herself by her own words, using her own words as indicative of guilt, and quite another to protect against the use of an earlier statement to expose defects in her credibility. 

(R. J. Delisle and D. Stuart, Evidence Principles and Problems (6th ed. 2001), at p. 337)

This reading of the law prevents the incriminating use of the previous testimony.  At the same time it does not, and should not, constitute a shield immunizing the witness from her legal obligation to speak truthfully.

110                        Six years after Kuldip was decided, this Court in R. v. Calder, [1996] 1 S.C.R. 660, held that extending the right to cross-examine the accused on prior statements where the purpose of such cross-examination is to undermine the accused’s credibility cannot be permitted where the statement was obtained after another Charter  provision had been violated (in this case, s. 10 (b)).  Although in dissent, the following comments of McLachlin J., as she then was, are apposite (at para. 45):

The concern for getting at the truth may weigh against admitting a statement tendered as substantive evidence where there is fear that the Charter  violation may have rendered it unreliable. The same concern for getting at the truth may weigh in favour of using the same statement in cross‑examination to test the accused’s credibility and uncover any inaccuracies or fabrications in his evidence in chief. From the perspective of the individual case, it is important to permit the jury to fairly judge the truthfulness of the witness. From the perspective of the trial process as a whole, it is equally important not to permit witnesses to take the stand and fabricate lies free from the fear that they may be cross‑examined on earlier contradictory statements.

The majority did not comment adversely on this statement of policy.  This statement coincides perfectly with this Court’s jurisprudence under s. 5  of the CEA  and s. 13  of the Charter .  Allowing a witness to lie on the stand without fear of being contradicted is not something this Court ought to permit.

(6)   Comparative Law

111                        It is interesting to observe that a few other jurisdictions have had to deal with some or all of the issues that arise in the present case.

(a)   United Kingdom

112                        In the United Kingdom, the state of the law that existed in Canada prior to 1893 is the current state of the law, subject to some modifications.  A witness in the United Kingdom is afforded the full right of silence granted by virtue of the common law privilege against self-incrimination.  The privilege is best summed up in a passage of Goddard L.J., in Blunt v. Park Lane Hotel, Ltd., [1942] 2 K.B. 253 (C.A.), at p. 257:

. . . the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for.

In England, the privilege against self-incrimination is set out in a series of rules, including the rule that an accused cannot be compelled to testify at his or her own hearing, the voluntary confessions rule, and the prohibition on questioning suspects without providing a caution: see R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd., [2000] 1 All E.R. 773 (H.L.), at pp. 777-78, per Lord Hoffmann.  The other rule falling under this rubric is the one conferring a right of silence on any witness.  As Lord Hoffmann observes in Hertfordshire County Council, at p. 778, these rules are “prophylactic rules designed to inhibit abuse of power by investigatory authorities and to preserve the fairness of the trial”.

113                        The absolute nature of these rules can best be understood as a response to the abusive practices of the prerogative courts of the sixteenth and seventeenth centuries, including the Star Chamber.  Fearing such abuse, absolute prohibitions were set up by judges in the eighteenth and nineteenth centuries.  These absolute prohibitions are the ones that survive in England to this day.  As can be seen, the principle of self-incrimination is, at its core, a principle animated by trial fairness and the prevention of abuse.  These principles are given greater emphasis under the common law rule than that of seeking out the truth.

114                        As access to the truth is of vital importance, England has inserted in many of its statutes provisions similar to s. 5  of the CEA  and s. 13  of the Charter .  A reference to all of these provisions is beyond the scope of this judgment.  It suffices to note that a collection of important provisions can be found in A. Keane, The Modern Law of Evidence (5th ed. 2000), at pp. 564-66.

115                        One such provision was dealt with in R. v. Martin, [1998] 2 Cr. App. R. 385 (C.A.).  In that case, the two appellants were charged with several offences relating to the fraudulent evasion of duties on alcohol.  In order to explain his activities, one of the appellants spoke of his involvement with some sort of business described as “Anthony Martin International”.  Two years prior to the criminal hearing, the appellant had been forced to swear an affidavit as a result of an ex parte restraint order granted by another court.  The affidavit purported to be a full disclosure of the appellant’s income and its sources.  The appellant neglected to mention “Anthony Martin International” in this affidavit.  When the Crown attempted to cross-examine the appellant two years later respecting the absence of any reference to “Anthony Martin International” in the affidavit, appellant’s counsel objected.  The Court of Appeal was asked to decide whether the Crown could cross-examine the appellant respecting his statements contained in the affidavit.

116                        The court first refers to s. 31(1) of the Theft Act 1968 (U.K.), 1968, c. 60,  which statute provides that a person shall not be excused from complying with any order made in proceedings for the recovery or administration of any property on the grounds that to do so may “incriminate” that person.  Section 31(1)(b) goes on to state that “no statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this Act, be admissible in evidence against that person”.  This paragraph, it should be noted, closely resembles s. 5(2)  of the CEA .  The court agreed that the Crown was not entitled to admit the contents of the affidavit into evidence as part of its case.  There then followed the following conclusion, at p. 397, respecting the admission of the evidence in this case:

But the proviso does not, in our judgment, prevent the Crown from cross-examining the deponent, as accused, to credit, in reliance upon the content of an affidavit sworn pursuant to a restraint order. . . .

. . .  it would be an affront to common sense if Martin could make two seemingly contradictory statements under oath, without any risk that his veracity could be challenged.

The court’s conclusion is that, where the legislature has indicated that a witness must testify in exchange for which some use immunity is granted, this use immunity does not extend to using the evidence so as to challenge the witness’s credibility in subsequent proceedings.  An absolute use immunity is, to borrow the court’s words, an “affront to common sense”.  Such a result is consistent with this Court’s jurisprudence in dealing with s. 5  of the CEA  and s. 13  of the Charter .

(b)   Australia

117                        In Australia, the common law privilege against self-incrimination has been codified and occasionally modified in most of the evidence statutes in force in its states and territories: see J. D. Heydon, Cross on Evidence (6th Aus. ed. 2000), at p. 683.  The effect of codification differs from state to state.

118                        In Tasmania, for example, s. 128 of the Evidence Act 2001, No. 76 of 2001, affirms the common law rule, but provides for protection whenever the witness chooses or is required to testify.  A witness who testifies is granted a certificate from the trial judge immunizing him or her from subsequent prosecution (except in the case of perjury).  Queensland has simply codified the common law rule entitling the witness to remain silent on the ground that any answer may tend to incriminate him: see s. 10 of the Evidence Act 1977, 26 Eliz. II No. 47.  At the other end of the spectrum lies Victoria, where s. 29 of the Evidence Act 1958, No. 6246, provides that the witness cannot object to answering any question on the ground that such answers may incriminate him.  This prohibition only applies to evidence that is “relevant and material” to the issues before the court in the first proceeding.

119                        The rationale for maintaining the common law privilege appears to be the same in Australia as in the United Kingdom.  It is designed to protect individuals from being compelled to convict themselves by their own testimony, and from being subjected to the abuses of the state that were prevalent prior to the creation of the privilege: see, on this point, the judgment of Kirby P. in Accident Insurance Mutual Holdings Ltd. v. McFadden (1993), 31 N.S.W.L.R. 412 (C.A.), at p. 421.  As with the United Kingdom, the goals of seeking out and obtaining the truth play a secondary role to those of preventing abuse and testimonial compulsion in Australian law.  It is for this reason that the rules of evidence in Australia typically sacrifice access to the truth in order to protect putative witnesses from these apparent harms.

120                        These policy concerns are attenuated to a degree where the state has created rules for the admission of the evidence with protections against subsequent use.  In the case of R. v. Guariglia, [2000] VSC 13, for instance, the accused refused to answer questions in a murder trial on the grounds that these answers might expose him to perjury.  The answers to these questions would apparently have contradicted those the accused gave at his own murder trial.  The accused was convicted of contempt for refusing to answer these questions.  Speaking about the right to silence, the court states that the witness has an obligation to testify to the whole truth, and concludes (at para. 28) that,

if the law were otherwise, the tribunal of fact may be left with the uncontradicted and unchallenged evidence of a witness against whom it would not be entitled to draw an adverse inference as to credit by reason of the reliance upon the privilege.

The court concludes that the witness was required to testify, and finds him guilty of contempt.

121                        One can take from this decision a clear policy statement that courts will not permit the privilege against self-incrimination to be used to obfuscate the truth by permitting the witness to  tell two different stories while denying the trier of fact access to the presence of such differences through the mantra of self-incrimination.

(c)   New Zealand

122                        New Zealand has also maintained the common law privilege against self-incrimination.  With respect to witnesses who testify in any civil proceeding, this privilege is codified in s. 4 of the Evidence Act 1908, No. 56.  The authors of a leading New Zealand evidence textbook point to a number of statutory provisions that serve to modify the common law rule by, for instance, providing that the witness must testify in exchange for some sort of subsequent use immunity: see Cross on Evidence (6th N.Z. ed. 1997), at pp. 283-85.  The authors also point to the fear of compelling witnesses to testify against themselves as the basic rationale for the maintenance of the common law privilege (p. 279).  The authors also acknowledge that such a rationale can serve to militate against the discovery of crimes, such discovery being in the public interest.

(d)   United States

123                        The United States has gone further than the previous three jurisdictions by constitutionalizing the privilege against self-incrimination.  The constitutional privilege appears in state constitutions as well as in the well-known Fifth Amendment, which provides that “[n]o person shall . . . be compelled . . . to be a witness against himself”.  The rationale for the Fifth Amendment privilege continues to be a great mystery.  Various rationales for the Fifth Amendment have been put forward from time to time, including the prevention of state abuse, the protection of privacy, and the fear of making findings of guilt based on unreliable, coerced testimony: see McCormick on Evidence (5th ed. 1999), vol. 1, at pp. 454-58.  The authors of McCormick on Evidence note, however, that there do exist critics of the privilege.  These critics argue that the privilege unjustifiably denies the state access to important sources of reliable information.  This, say some critics, places too high a price for the values the Fifth Amendment apparently serves to protect.

124                        The privilege operates in favour of both an accused and a non-accused witness.  With respect to the latter, the witness is required to claim the privilege.  Typically, the claim is not made as a blanket claim, but comes in the form of specific objections to specific questions.  When a witness objects, it is up to the trial judge to assess whether the testimony could be incriminatory.  The test for determining whether the evidence is incriminatory is taken from the case of Hoffman v. United States, 341 U.S. 479 (1951).  The U.S. Supreme Court held, in that case, that the witness is entitled to object, except in cases where it is “perfectly clear” that the witness is mistaken respecting the incriminatory effect of the evidence and where the testimony “cannot possibly have such tendency to incriminate” (p. 488 (emphasis in original)).  This formulation basically renders all testimony subject to the privilege except that which only gives rise to a fanciful possibility of incrimination.

125                        In order to obtain access to the witness’s testimony at the first proceeding, several states have attempted to avoid the strictures of the Fifth Amendment by enacting what are known as “use immunity” statutes: see McCormick on Evidence, supra, at p. 513.  These statutes compel the witness to testify in exchange for promises not to use the testimony at later proceedings.  The tendency in these statutes is to wait for the witness to claim their privilege before granting a use immunity.  The trial judge will grant this immunity after the witness claims the privilege, and after the prosecution seeks a grant of immunity.  Because of the existence of the Fifth Amendment, it is necessary that the statutory use immunity protect witnesses to the same extent as they would be had they been permitted to invoke their constitutional right to silence.  A statutory immunity that offers anything less would violate the Fifth Amendment.

126                        In New Jersey v. Portash, 440 U.S. 450 (1979), the U.S. Supreme Court dealt directly with the question of whether witness testimony given under the protection of a use immunity agreement could be used to impeach that witness’s credibility at a subsequent proceeding.  The respondent Portash was compelled to testify before a grand jury.  Portash claimed privilege, but was compelled to testify pursuant to a statute then in force in New Jersey.  This same law provided that the testimony “shall not be used against such public employee in a subsequent criminal proceeding” (New Jersey Public Employees Immunity Statute, N.J. Stat. Ann. §2A:81-17.2a2 (West 1976)).  Portash was later indicted on several counts.

127                        At the trial, the trial judge ruled that the prosecution was permitted to use the testimony to impeach Portash’s credibility.  An appeal was allowed, and the case sent to the Supreme Court.  The majority in the Supreme Court held that the Fifth Amendment privilege protects against any use of compelled testimony in subsequent proceedings.  To use the compelled testimony for any purpose would violate the Fifth Amendment.  Essentially, if Portash had been held to be entitled to claim a right to silence, no evidence would have existed either to incriminate him or to impeach his credibility.  Allowing the prosecution under statute to use the testimony to impeach the witness would diminish the absolute protection afforded by the Fifth Amendment.  In short, the prosecution was held not to be permitted to use the evidence as a means of impeaching the witness.

128                        This result appears to be consistent with the Fifth Amendment, given the latter’s strenuous and absolutely prohibitive wording.  No statutory provision or rule can be construed so as to diminish the Fifth Amendment’s overwhelming protection.  This result can quite easily be compared with the one reached in Martin, supra, where the statutory use immunity provision did not have to compete with any absolute constitutional right to silence.  The result in Portash, then, is a result tailored to the unique right of silence found in the Fifth Amendment.  A similar result does not obtain in Canada, where our Charter  and Constitution generally do not employ language like that found in the Fifth Amendment.  An absolute prohibition against subsequent use of the compelled evidence is entirely in keeping with American law, but such a result cannot be justified in Canada on the same grounds.

(e)   General Comments — Comparative Law

129                        Canada appears to maintain a unique position in the common law world as the only country to have completely abolished the common law privilege against self-incrimination.  Some of the jurisdictions noted above have gone some way toward abolishing the privilege in certain specific cases.  Where the common law privilege remains, courts and doctrinal writers agree that the basis for the privilege is the fear of compulsion and abuse of power, this fear being rooted in historical accounts of the practices of courts such as the Star Chamber.  This fear is said to override the goal of seeking out and discovering the truth.  As a result, some truth is made inaccessible for the sake of these other goals.  Where the common law rule has been modified or entirely repealed, the rationale for such modification or repeal generally changes.  The fact, though, that the rule has been repeatedly replaced by provisions resembling s. 5  of the CEA  and s. 13  of the Charter  suggests that access to the truth has become a principal consideration in some instances.  This is reflected in decisions such as  Martin, supra, where the court held that prior testimony can be put to an accused so as to undermine his or her credibility, notwithstanding the presence of a statutory use immunity resembling s. 5  of the CEA .

(7)   The Opinion of Arbour J.

130                        In my opinion, my colleague’s reasons ignore the fundamental precepts discussed earlier and, as a result, provide a quid pro quo to the witness that is more broad than what is required to achieve the goals provided for in s. 5  of the CEA  and s. 13  of the Charter .  In her opinion, Arbour J. takes the view that the witness should incur no risk in testifying to matters that are incriminating at the time the evidence is given, as long as the witness claims the protection of s. 5  at the first proceeding.  According to her, if the evidence is incriminating at the time it is given and if s. 5  protection is claimed, the Crown is not entitled, at a subsequent proceeding, to use the evidence at all.  This includes a prohibition against using the testimony to test the witness’s credibility.

131                        With respect, no principled system of justice, and indeed no criminal system concerned with ascertaining the truth, would ever agree to enter into such an arrangement.  Witnesses who are called to testify under this contract could change their story at a subsequent hearing with utter impunity, as they cannot be cross-examined with respect to the fact that their story has changed.  In such a situation, the credibility of the witness is falsely presented to the jury.  Since the Crown is not capable of showing that the accused in the subsequent proceeding is telling a completely different story from what he told at the earlier proceeding, the jury are left with the false impression that the accused’s uncontradicted story is the product of a credible individual.  A system of justice that prevents the jury or the trier of fact from reviewing past testimony for glaring inconsistencies or even direct lies is a system of justice that has lost faith in the jury’s ability to be true arbiters of fact.  Hiding the truth in a subsequent case to this extent in exchange for a better chance at the truth at the earlier proceeding is not the appropriate bargain envisioned by the law.  It is not the agreement mandated by s. 5  of the CEA .

132                        The biggest problem with my colleague’s reasoning is her understanding of s. 5  as some sort of contractual arrangement.  While I agree with the contractual analogy insofar as the Crown is said to benefit from the witness’s testimony in the first proceeding in exchange for some sort of use immunity in any subsequent proceeding, the analogy must end there.  If the concept is best understood as a contract between witness and Crown, then let us examine its terms.  The witness promises to tell the truth.  In exchange for this promise, the Crown promises to abide by s. 5  of the CEA , granting the witness some protection from the future use of the evidence.  This arrangement ensures that the Crown is granted access to the truth so as to better prosecute the accused at the first proceeding.

133                        Taking this contract analogy further, the witness then testifies in accordance with his promise, apparently telling the truth (which he is contractually bound to do).  At the second proceeding, the witness (now accused) tells a completely different story.  Since this person has sworn or affirmed to tell the truth at his own trial, and since this person is contractually bound to tell the truth at the first proceeding, it follows that the accused has either perjured himself, or has breached a fundamental condition of the agreement.  Because my colleague extends an absolute use immunity to the accused in this situation, the Crown can never find out whether the accused lied at the first proceeding or is lying at the second.  The Crown, like the jury, has to accept the second story as true.  As such, it follows that the accused must be deemed to have breached the condition to tell the truth at the first proceeding.  Using strict contractual principles, this repudiation of the contract by the accused, if accepted by the Crown, brings the contract to an end.  The Crown is now no longer obligated by contract to fulfil its end of the bargain.  It can now, based purely on contract principles, cross-examine the accused at will, using the prior testimony without consequence.  That said, it would be a breach of statute for the Crown to cross-examine at will.  In short, the contract analogy leads invariably to a situation where the accused receives the full benefit of the contract, whereas the Crown is left with an unenforceable bargain.  It is for this reason that the Court ought not to countenance such an absurd arrangement.

134                        My colleague appears to support an arrangement whereby one who tells two different stories at two different proceedings merely risks being brought on perjury charges.  This is similar to the Diplock model of contract as primary obligations, the breach of which gives rise either to a remedy of specific performance, or a secondary

obligation of damages: see Photo Production Ltd. v. Securicor Transport Ltd., [1980] 1 All E.R. 556 (H.L.), at p. 566.  While I acknowledge that perjury is a secondary consequence to telling two different stories before a court of law, it does not follow that it ought to be the only consequence.  A perjury conviction can be too small a price to pay once the primary obligation to tell the truth has been apparently breached.  Section 5  of the CEA  and s. 13  of the Charter  allow for the use of the prior testimony to impeach the credibility of the witness.  That, coupled with the potential for a perjury conviction, is an appropriate consequence for breaching the primary obligation to tell the truth at the first proceeding.  It also happens to be the consequence mandated by Kuldip, supra.  In short, it is one thing to countenance making a deal with the devil.  It is quite another to sell him one’s soul.

135                        My colleague’s interpretation of s. 5  is nothing short of an overruling of express aspects of the decision in Kuldip.  The Kuldip principle is that an accused can be cross-examined regarding prior testimony if the purpose of such examination is to undermine the accused’s credibility.  This principle applies whether the accused’s prior testimony is protected under s. 13  of the Charter  or s. 5  of the CEA .  If my colleague wishes to overrule aspects of a decision that has stood as the leading authority in this country for 12 years, she should simply say so and provide cogent reasons to that effect.  I joined the five-line dissent of Wilson J. in Kuldip.  Nevertheless, there comes a time when one must acknowledge that finality in the jurisprudence on certain settled matters outweighs one’s dissent at one time.  Respect for precedent is important: it fosters consistency.  In the case of Kuldip in particular, there has been no outcry — quite the contrary — respecting its application through the years.  More importantly perhaps in this case, the overruling of any part of Kuldip was simply not argued at all and I do not think that this Court should take it upon itself, absent arguments to reverse its jurisprudence, to overrule its own case, more so one of such recent vintage.  While my colleague attempts to justify her reasons as a resurrection of Kuldip, she has, quite simply, killed much of it.

(8)   Summary of Principles

136                        While I have earlier set out what I believe are the appropriate principles to apply in the present case, namely those espoused in Kuldip, it is perhaps necessary at this juncture to summarize them.  First of all, the use immunity that arises when a witness testifies is the same whether the witness has claimed the protection afforded by s. 5  of the CEA  or not.  Secondly, this use immunity prevents the prosecution from using the witness’s testimony in any subsequent proceedings for the purpose of incriminating the witness (who is now the accused in his or her own proceeding).  In order to accomplish this, and given the fact that a great deal of evidence that is tendered to impugn a witness’s credibility also has the effect of incriminating him or her, it will be necessary in most cases for the trial judge to instruct the jury with respect to the appropriate use to which they can put the evidence.  Occasionally, instructions to the jury will have to be made during the trial, as occurred in the present case, so as to pre-emptively prepare the jury for the evidence they will hear.  I agree with Arbour J. that the danger of the evidence being used to incriminate the accused depends a great deal on the nature of the evidence as well as the circumstances of the case.  The greater the danger of incrimination, the more explicit the instructions to the jury will need to be to prevent the evidence from being used to impermissibly incriminate the accused.

(9)   Application

137                        Having determined the proper principles that apply in the present case, it remains for me to apply those principles to the evidence the respondent sought to tender in cross-examining the appellant.

138                        The Crown’s cross-examination of the appellant dealt mostly with the appellant’s prior testimony at his brother’s trial and preliminary hearing.  A typical example of the type of cross-examination involved can be gauged from the following passage:

[translation]

Q.    I’m going to go a bit farther.  I asked you this question:

. . .

“Q.  You told police that it was Serge who touched him, right?

A.    Yes.

Q.    And when you say ‘touched’?

A.    He was all over him.

Q.    He was all over him, and during that time what were you doing?

A.    I was holding him.”

A.    No, I wasn’t there myself.

Q.    But that’s what you told the judge?

A.    Yes, it was a bunch of lies.

There is nothing, in my opinion, that is offensive in this line of questioning.  By this point in the trial, the appellant has already indicated that he did not participate whatsoever in the victim’s murder.  He is then read portions of his previous testimony which seem to contradict the new story.  He is asked which version is true, in a sense.  His response is that the first story is merely a bunch of lies.

139                        Where Arbour J. takes offence with this line of questioning is in respect of questions that seek to obtain from the witness evidence as to which version of the story is true.  In her opinion, such questions must have been designed to elicit admissions, which admissions would constitute an incriminating use of the prior testimony.  With respect, I do not regard such questions as constituting an attempt to incriminate the appellant.

140                        The appellant, when asked questions respecting the veracity of the previous story, always has a number of options in answering.  The first option is to indicate that the previous testimony is full of lies, as in the example noted above.  At the appellant’s trial, this was the typical answer.  The appellant could also answer by saying that the testimony he gave at the previous trial is true, but that it is being told from the perspective of his brother.  During his own trial, the appellant often indicated that many of the stories he had told at the previous trial were based on descriptions given by his brother.  In essence, then, the appellant’s story was that he had not lied at the previous trial, but merely failed to indicate that the story he told was one his brother had told him.  Examples of this type of testimony are numerous.  In the following passage, the Crown begins by relating the story that the appellant told the jury at his brother’s trial.  This is followed by the appellant’s explanation for the apparent inconsistency between that story and the one being told in the current trial:

[translation]

Q.    That evening, December 16th, Mr. Noël, you said, not the evening of December 16th but June 9th, you told the jury that’s when the little boy had stopped at the karate school - who told you that?

A.    He told me that.

Q.    O.K. Serge told you?

A.    Yes.

If the jury believe the appellant, it follows that the appellant’s story at his brother’s trial with respect to the karate club is entirely true, albeit subject to the caveat that the story is taken from the brother’s description as opposed to the appellant’s observations.  The appellant’s answer, therefore, may not undermine his credibility in the eyes of the jury.

141                        Finally, the appellant’s answers to the Crown’s questions were often explanations of his previous testimony.  At his brother’s trial, the appellant testified at length about how his brother and the victim came to his home, and went into the basement together. The appellant added that he went down to be with the two of them about two minutes later.  This testimony, coupled with the previous testimony where the appellant indicates that he held the victim’s legs while his brother killed him in the appellant’s basement, would seem to contradict the appellant’s present testimony about being wholly unaware of the victim’s death until after he was killed.  The Crown thus put these statements to the appellant in the present trial, with the following result:

[translation]

Q.    . . .

“Q.  O.K. so then you went down into the basement?

A.    Yes.”

A.    Later, when I heard a noise, yes.

Q.    O.K. That’s what you’re telling me today?

A.    Yes.

Q.    But at that time, this is what you told me, that you waited a couple of minutes and then you went into the basement.

A.    When I heard a noise.

The appellant’s answer was that his previous testimony coincides with his current testimony.  His reference at his brother’s trial to descending into the basement was in reference to going down after the victim was killed.  Taken in isolation, the prior testimony could have been used to attack the appellant’s story that he was not present before or during the killing, as the prior evidence had the effect of suggesting otherwise.  The appellant’s answer is that he did not lie at the previous hearing.  Such an answer, if believed, would do nothing to damage the appellant’s credibility.  Rather, it could be evidence of consistency.

142                        The foregoing examples illustrate the importance of asking the appellant questions respecting the veracity of the previous testimony.  Such questions are not designed to elicit admissions with respect to the previous evidence (which would be improper).  Rather, those types of questions ensure that the witness is given the opportunity to either confirm that the previous testimony is contradictory, or dismiss the contradiction.  Failing to ask those questions would, in my view, be problematic, as it would fail to accord the witness the right to confirm or deny the contradiction.  Simply reading in the prior testimony, with a confirmation from the witness that he spoke the words being read in, is, in my view, highly prejudicial to the witness.  Something more is required to ensure that the jury are made aware of the existence (or non-existence) of a contradiction.  The Crown attorney cannot simply assume the existence of the contradiction and put it to the jury as an actual fact.  The impugned questions are designed, in my opinion, to attack the witness’s present credibility.

143                        It is worth noting, at this point, that the questions to which my colleague objects are relatively similar to those this Court found to be acceptable in Kuldip.  The passage from the transcript in that case (at pp. 623-24), reproduced earlier (supra, at para. 100), shows that the Crown in Kuldip did in fact ask the witness to explain why he had made certain contradictory statements at the earlier trial.  He could have answered much in the same way as the appellant did in the present case: that the first story was a lie; or that the first story was being told from another person’s perspective (unlikely); or that the first story was true, subject to further explanation.  If the Crown’s request for clarification in that case was not objectionable, how can there be a complaint about the Crown’s questions in the present matter?

144                        It is true that such questions also have an incriminating effect, by suggesting that the prior testimony is true.  It is up to the trial judge to ensure that the jury do not use the prior testimony in an inappropriate manner.  As discussed earlier, there is no valid reason to keep the evidence from the jury simply because they could use it to incriminate the appellant.  Such an attitude demeans the jury by suggesting that they are incapable of properly dealing with this evidence.  Our faith in the jury system is a hollow one if such an attitude is allowed to prevail.

145                        As an aside, I wish to comment on Fish J.A.’s reference to a portion in the transcript of approximately 40 pages.  In his dissent, Fish J.A. hints at the fact that the Crown simply read in the transcript of the previous trial for a long period of time (accumulating 40 pages of transcript), after which time defence counsel interjected.  Having read the record, I cannot concur with this assessment.  Reading the 40 pages that precede counsel’s comment, one can observe that a significant portion of the transcript was taken up with comments from counsel and from the bench.  Moreover, once the Crown resumed its cross-examination, it put large portions of the appellant’s previous testimony to the appellant.  The appellant indicated that he was lying when he earlier said that he saw a number of kids enter a karate club.  The appellant stated that he lied in testifying that he saw the victim stop at this same club.  The appellant testified that his previous testimony regarding certain comments the victim made about karate was based on what his brother told him.  Finally, the appellant stated at trial that his previous testimony that the victim seemed scared of the appellant was a lie.  In sum, the 40 pages to which Fish J.A. makes reference are not merely an example of the Crown reading in previous testimony.  In fact, they are a perfect example of the Crown putting the testimony to the appellant so as to attack his credibility.

146                        Turning to the trial judge’s instructions to the jury, it is my view that they appropriately delineated the two purposes for which the evidence could be used, and the one purpose for which the jury were entitled to use it.  Before the Crown began asking questions with respect to the recorded conversation the appellant had with two other convicts, the trial judge interjected.  He stated that the jury were only to take the conversation into account so as to test the appellant’s credibility.  He added that the goal of the testimony was not to establish the truth of the contents of the conversation, but to undermine the appellant’s credibility.  During his instructions at the conclusion of the evidence, the trial judge very clearly spelled out the law as enunciated in Kuldip, supra.  He told the jury that the only use they could make of the evidence was in testing the appellant’s credibility.  He also cautioned the jury not to use the evidence to prove the truth of its contents.  As an example, he commented on how the taped conversation was not in evidence at all.  If the appellant’s present story differed from what was said there, though, the jury could take note of this contradiction so as to gauge the appellant’s credibility.  This very simple explanation from the trial judge was, in my view, satisfactory.

147                        The only difficulty that arose was with respect to the jury’s question about evidence not properly before the jury.  The evidence in question had come out in cross-examination and, as such, could not be used as proof of guilt.  The trial judge’s answer to their question very clearly indicated that there was no direct proof that the appellant had been with the victim and had left him at some point.  The trial judge even went through the evidence that the jury were entitled to consider, and effectively concluded for them that there existed no direct proof that the appellant had been with the victim prior to the latter’s death.  By both stating the principles involved, and relating those principles to the facts of the present case, the trial judge in my view appropriately dealt with this matter.  The jury were in a proper position to consider the previous testimony as a source of evidence undermining credibility, rather than as a source of direct incriminating proof.  There was no error.

B.  Burden of Proof and Reasonable Doubt

148                        With respect to the trial judge’s instructions regarding the burden of proof, the majority in the Court of Appeal considered whether there existed a reasonable probability that the jury misunderstood the applicable standard.  While acknowledging that some of the required elements of a proper charge were missing from the trial judge’s instructions, and while admitting that certain instructions dealt with matters that ought to be avoided, the majority nevertheless concluded that the charge as a whole would not have created a reasonable probability of a misunderstanding by the jury.  The majority, in coming to this conclusion, took into account this Court’s ample jurisprudence on reasonable doubt, notably R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Bisson, [1998] 1 S.C.R. 306; Starr, supra; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; and R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

149                        According to Fish J.A., in dissent, the trial judge’s instructions on reasonable doubt were wanting in a number of respects.  Most notably, the trial judge incorrectly equated reasonable doubt with the concept of “moral certainty” (para. 125).  Overall, the instructions were found to have given rise to a reasonable likelihood that the jury misapprehended the proper standard of proof.

150                        I agree with the majority in the Court of Appeal regarding the trial judge’s instructions pertaining to the appropriate standard of proof the jury were required to apply in this case.  While his instructions are not entirely consistent with this Court’s requirements, I agree that there has been substantial compliance with the requirements set out by our Court.  There is no reasonable apprehension that the jury misunderstood the correct standard of proof that they were required to apply.

C.  Expert Evidence

151                        With respect to the issue of expert evidence, and the alleged failure of the trial judge to provide any instructions respecting its use, I am also in agreement with the reasons and result reached by the majority in the Court of Appeal.  Arbour J., I note, would also dismiss the appeal on this issue.

D.  Appellant’s Knowledge of the Charter  and the CEA 

152                        Before concluding these reasons, I feel it necessary to comment on some of Crown counsel’s questions respecting the appellant’s understanding of the law, and his rights under both the Charter  and the CEA .  For the reasons set out in R. v. Jabarianha, [2001] 3 S.C.R. 430,  2001 SCC 75, these questions were not appropriate.  I am, however, of the opinion that the presence of such questions did not have any real effect on the outcome of the appellant’s trial.  These questions formed only a small part of the Crown’s cross-examination.  Given the strong evidence contained in the police statements, and given the incessant and legitimate attack on the appellant’s credibility, a few questions pertaining to his knowledge of the Charter  and the CEA  are not noticeably prejudicial.  As in Jabarianha, I would dismiss the appeal by applying the curative provision found in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 .

V.  Conclusion

153                        For the foregoing reasons, I would dismiss the appeal.

Appeal allowed, L’Heureux-Dubé J. dissenting.

Solicitors for the appellant: Pariseau, Olivier, Montréal.

Solicitor for the respondent: The Attorney General’s Prosecutor, Longueuil.