Respondent was convicted of rape but the Court of Appeal ordered a new trial. One of the central issues at the second trial concerned the appropriate inferences to be drawn from the respondent's departure from Edmonton to Vancouver after the alleged commission of the crime and before his arrest. Those inferences depended in turn upon whether the respondent knew of the rape charge before his departure. On cross‑examination, the Crown confronted the respondent and another witness with their testimony from the previous trial which was contradictory to the evidence at the new trial. The Crown adopted this tack on cross‑examination to establish that prior to being told by the police that there was a rape charge under investigation, the respondent had knowledge of what was afoot and left for Vancouver. Respondent was again convicted. On appeal, the Court of Appeal found no error in permitting the introduction of the prior inconsistent statements by the accused but granted a new trial on the ground of misdirection to the jury with respect to the law applicable to the use of prior inconsistent statements by a non‑party witness. This appeal is to determine (1) whether the cross‑examination of an accused at a new trial on testimony given at a previous trial on the same charge infringes the accused's right against self‑incrimination guaranteed in s. 13 of the Canadian Charter of Rights and Freedoms , and (2) if so, whether such cross‑examination is justified on the basis of s. 1 of the Charter .
Held: The appeal should be dismissed.
The cross‑examination of the respondent at the new trial violated his rights under s. 13 of the Charter . The section provides that "A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings ...." This Court has decided in Dubois v. The Queen, [1985] 2 S.C.R. 350, that a second trial of an accused on the same indictment is another proceeding within the meaning of s. 13. In this case, the purpose of the Crown's cross‑examination was to establish the accused's guilt by revealing his inconsistent statements. Section 13 was therefore applicable to exclude the incriminating use of the evidence of these contradictory statements. No reasonable limits prescribed by law was shown by the Crown to justify such cross‑examination on the basis of s. 1 . The admission of this evidence and its use to incriminate the accused, while in accordance with the law as it stood before this Court's decision in Dubois, now results in a reversible error. It is error of such a nature that may not be cured by the application of the proviso in s. 613(1)(b)(iii) of the Criminal Code .
Cases Cited
Applied: Dubois v. The Queen, [1985] 2 S.C.R. 350; referred to: Deacon v. The King, [1947] S.C.R. 531; Boulet v. The Queen, [1978] 1 S.C.R. 332; R. v. Wilmot (1940), 74 C.C.C. 1; R. v. Coté (1979), 50 C.C.C. (2d) 564; R. v. Antoine (1949), 94 C.C.C. 106; McInroy v. The Queen, [1979] 1 S.C.R. 588; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 5(2), 9, 10, 11.
Canadian Charter of Rights and Freedoms , ss. 1 , 13 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(b)(iii).
Authors Cited
Cross, Sir Rupert. Evidence, 5th ed. London: Butterworths, 1979.
Phipson, Sydney Lovell. Phipson on Evidence, 13th ed. By J. H. Buzzard, R. May and M. N. Howard. London: Sweet & Maxwell, 1982.
Schiff, Stanley A. Evidence in the Litigation Process, 2nd ed. Toronto: Carswells, 1983.
APPEAL from a judgment of the Alberta Court of Appeal (1984), 11 C.C.C. (3d) 503, 9 D.L.R. (4th) 621, 53 A.R. 81, allowing the accused's appeal from his conviction for rape and ordering a new trial. Appeal dismissed.
Jack Watson and Eileen Nash, for the appellant.
Alexander D. Pringle, for the respondent.
S. R. Fainstein and Michael C. Blanchflower, for the intervener.
The judgment of the Court was delivered by
1. McIntyre J.‑‑This appeal involves consideration of the use to which prior inconsistent statements, made by an accused and another witness at a former trial on the same indictment, may be put by the Crown on a retrial. More specifically, the Court is asked to review the established rule that a prior inconsistent statement made by a non‑party witness on an earlier occasion is receivable only on the issue of the credibility of the witness. Further, the Court must consider the use to which the previous inconsistent testimony of an accused may be put in subsequent proceedings against him in the light of this Court's decision in Dubois v. The Queen, [1985] 2 S.C.R. 350.
2. The respondent was charged with rape. He was tried before a judge sitting without a jury and convicted. An appeal was allowed and a new trial directed, which took place before Legg J. and a jury in the Court of Queen's Bench for Alberta. The respondent was again convicted. During the second trial, one of the central issues raised concerned the appropriate inferences to be drawn from the respondent's departure from Edmonton after the alleged commission of the crime and before his arrest. Those inferences depended in turn upon whether the respondent knew of the rape charge before his departure.
3. The offence was alleged to have occurred on October 23, 1980. Some time after October 28 and before November 5 the respondent received word that a detective, named Peters, was making inquiries regarding him and wished to see him. The respondent spoke to Peters on the telephone. He then consulted a solicitor, had a conversation with a Miss Dibdin, and left Edmonton for Vancouver the same day. He was arrested by an R.C.M.P. officer at Hinton, Alberta, while en route to Vancouver and returned to Edmonton.
4. Miss Dibdin, with whom the respondent was living at the time and with whom he discussed matters before his departure for Vancouver, stated at the second trial that she was not sure whether the respondent mentioned the word ‘rape’ in the conversation before his departure for Vancouver. She believed, however, that he informed her that he had been charged with rape when he telephoned her from Hinton after his arrest. She was cross‑examined with reference to what she said at the first trial. Some of the questions and answers are set out below:
Q Okay, perhaps I could assist you. Do you recall giving testimony in January of 1982?
A M‑hm.
QYour answer, please?
AYes.
QAnd do you recall at Page 260 of the transcript, My Lord:
"Q And the fact of the matter is that you knew Mr. Mannion was in trouble with the police on a rape charge prior to him leaving Town, isn't that correct, ma'am?
A I wasn't certain what the charge was. In fact there wasn't a charge. They wanted him for questioning and that was enough to frighten Jim if they even wanted to question him.
Q I beg your pardon?
A I said they wanted to question him.
QThe word rape was mentioned between you and Jim prior to him leaving Town?
A I believe so."
and later:
Q If I can assist you, in January of 1982 do you recall being asked these questions and giving these answers?
"Q My question, ma'am, is that in fact Jim told you about the rape when he phoned you from Hinton, isn't that correct?"
This is at Page 261.
"A I suppose he did, yes.
QWell, ma'am, supposing he did and saying he did are two different things. My question is, I put it to you‑‑
AOkay, yes."
Do you recall being asked those questions and giving those answers?
A I recall the pressure.
Q Well that is not my question, Miss Dibdin. My question is: do you recall being asked those questions and giving those answers?
A I guess I was, yeah. If it is written down I must have said it.
QOkay, and were the answers to those questions true at the time?
A As far as I remembered, yeah, I guess.
5. The respondent gave evidence at both trials. At the second, he testified that upon being told that the police had been making inquiries about him he spoke with Detective Peters, of the Edmonton Police Force. Peters asked him to come to the police station but gave no specific reason, merely saying that it concerned a serious matter. The respondent went on to say that he had been involved as an informer for Peters in certain drug dealings. He had not met some obligations that he had assumed in that role and he was afraid to visit Peters. He went at once to see his lawyer and then left for Vancouver where, he said, he wished to consult an old friend on this matter, a Vancouver police officer. He was then confronted on cross‑examination with testimony he had given at the earlier trial in which he omitted any mention of fear of Detective Peters and said that, in his conversation with Peters before he departed for Vancouver, Peters had told him that he wanted to see him concerning a rape. The Crown, it may be observed at this point, had led evidence from Peters that he had not mentioned the word `rape' to the respondent prior to his arrest. It would seem clear that the Crown in adducing this evidence in cross‑examination was seeking to establish that, prior to being told by the police that there was a rape charge under investigation, the respondent had knowledge of what was afoot and left for Vancouver.
6. In his charge to the jury the trial judge made reference to the contradictory statements made by the respondent in the previous proceedings. He made no specific reference to the testimony of Miss Dibdin in the earlier proceedings. Nowhere in the judge's charge did he tell the jury that the previous contradictory statements made by a witness could only be used by them for the limited purpose of testing the credibility of the witness, unless he or she adopted the earlier statements.
7. During their deliberations the jury returned with a question for the trial judge. It was evident that they were having difficulty with what had been said by Mannion to Dibdin regarding a rape during their conversation before the respondent's departure for Vancouver. The trial judge recharged the jury but added little, if anything, to what he had said earlier. He reread to the jury the relevant evidence of Miss Dibdin, but again he did not instruct them on the law applicable to the use of prior inconsistent statements by a witness. The Court of Appeal considered this to be error, noting it was connected with a point which the jury considered to be of vital concern. They were of the view that the error was not one which could be remedied by the application of the proviso under s. 613(1)(b)(iii) of the Criminal Code, R.S.C. 1970, c. C‑34, and allowed the appeal and directed a new trial: (1984), 11 C.C.C. (3d) 503, 9 D.L.R. (4th) 621, 53 A.R. 81.
8. It has long been well settled in the criminal law of Canada that the prior inconsistent statement of a witness, when put to the witness in cross‑examination, may be used by the jury in assessing the credibility of the witness but may not be used as evidence of the truth of the inconsistent statement. That is to say, the fact that the witness has made different statements on the same subject on an earlier occasion may afford evidence that the witness is unreliable but it does not afford affirmative evidence which can be weighed against the accused at his trial. Failure to warn a jury that such an inconsistent statement may be used only on the issue of the credibility of the witness, unless the witness has adopted the earlier statement as true, has been held to be reversible error: see Deacon v. The King, [1947] S.C.R. 531 and McInroy v. The Queen, [1979] 1 S.C.R. 588. The appellant seeks a review of this rule which would make admissible as evidence of their contents such past contradictory statements by non‑party witnesses where it is shown that they had been made under oath and subject to cross‑examination. Because of the view that I take of the application of s. 13 of the Canadian Charter of Rights and Freedoms , it is unnecessary to deal with this issue.
9. The respondent, who was also shown to have made inconsistent statements, was of course in a different position. Being an accused, that is, a party litigant, his prior inconsistent statements could be received and used by the jury as evidence concerning the issue of guilt or innocence. The prior statements could be admissible against an accused as past admissions or declarations: see Schiff, Evidence in the Litigation Process (2nd ed. 1983), pp. 306‑309, Cross on Evidence (5th ed. 1979), pp. 518‑20, Phipson on Evidence (13th ed. 1982), p. 370, and see as well Boulet v. The Queen, [1978] 1 S.C.R. 332. As the law stood when the judgment of the Court of Appeal was given, no error would have occurred in omitting a warning in respect of Mannion's prior inconsistent statements, such as was required for the evidence of Miss Dibdin.
10. This case was decided before it was held by this Court in Dubois v. The Queen, supra, that a second trial of an accused on the same indictment is another proceeding within the meaning of s. 13 of the Charter . The Dubois case originated in Alberta and the appeal to this Court was from the judgment of the Alberta Court of Appeal (1984), 11 C.C.C. (3d) 453. Kerans J.A., writing for the court, held that a second trial on the same indictment was not another proceeding under s. 13 of the Charter . The Court of Appeal in the case at bar followed its earlier judgment and found no error in permitting the introduction of the prior inconsistent statements by the accused. In this, they were not only following their judgment in the Dubois case, they were also following well‑established law to the effect that the statements of an accused made before trial are receivable in evidence. In my view, they made no error as the law then stood. The Court of Appeal decision regarding s. 13 must now be reconsidered, however, in the light of this Court's decision in Dubois.
11. The relevant issues are set out in two constitutional questions framed by the Chief Justice on April 4, 1985.
1. Whether the cross‑examination of an accused at a new trial on testimony given at a previous trial on the same charge infringes or denies the right guaranteed in s. 13 of the Canadian Charter of Rights and Freedoms ?
2. If so, is such cross‑examination justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and, therefore, not inconsistent with the Constitution Act, 1982 ?
Section 13 of the Charter provides:
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.
As I have said, the Dubois case has established that a second trial on the same indictment is another proceeding. Mannion was a witness who testified at the earlier proceeding. His testimony in that earlier proceeding, while not introduced by the Crown in its case in chief, was brought in on cross‑examination. In my view, it was used to incriminate him. The Crown adduced evidence at both trials that, prior to the arrest of the respondent at Hinton on his way to Vancouver, no police officer had communicated to him that they were investigating his involvement in a rape. Mannion had mentioned that he knew a rape was involved in his earlier trial and this fact was put to him in cross‑examination in the second. The Crown argued in each trial that Mannion knew that a rape was involved before the police told him and that his precipitate flight from Edmonton when he became aware that the police wanted to see him displayed a consciousness of guilt. It is clear then that the purpose of the cross‑examination, which revealed the inconsistent statements, was to incriminate the respondent. This evidence was relied upon by the Crown to establish the guilt of the accused. It is therefore my view that s. 13 of the Charter clearly applies to exclude the incriminating use of the evidence of these contradictory statements. Though admission of this evidence and its use to incriminate the accused was clearly in accordance with the law as it stood before this Court's decision in Dubois, it now results in reversible error. It is error of such nature that in my view it may not be cured by the application of the proviso in s. 613(1)(b)(iii) of the Criminal Code .
12. It is of interest to note that if the respondent at his first trial had objected to answering the questions introduced by the Crown at his second trial, and if they were such as to invoke the protection of s. 5(2) of the Canada Evidence Act, R.S.C. 1970, c. E‑10, that section would have protected him against the use or admission of his answers in subsequent proceedings. This would result in a wider protection than that which is accorded s. 13 of the Charter in the Crown's argument. Section 5(2) provides:
5. ...
(2) Where with respect to any question a witness objects to answer upon 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 such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable 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 such evidence.
(Emphasis added.)
For cases interpreting this section see R. v. Wilmot (1940), 74 C.C.C. 1 (Alta. C.A.), where it was held that an accused person may not be cross‑examined or examined‑in‑chief upon evidence given at a previous hearing where he had invoked the protection of s. 5 of the Canada Evidence Act, and as well R. v. Coté (1979), 50 C.C.C. (2d) 564 (Que. C.A.), which is to the same effect. In my view, the Charter should not be construed as a limiting factor upon rights which existed prior to its adoption.
13. I now turn to a consideration of the effect of s. 1 of the Charter . The Crown has argued that the cross‑examination of the respondent can be justified under s. 1, which is set out hereunder:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
It is now well settled in the authorities that to succeed the Crown must show "a reasonable limit imposed by law that can be demonstrably justified in a free and democratic society". It has been argued that ss. 9, 10 and 11 of the Canada Evidence Act provide such a reasonable limit on the respondent's s. 13 rights. In my view, the argument fails. Section 9 allows cross‑examination of one's own witnesses and is not applicable here. Sections 10 and 11 are procedural sections relating to cross‑examination as to previous inconsistent statements and themselves give no right to cross‑examine (R. v. Antoine (1949), 94 C.C.C. 106 (B.C.C.A.))
14. No limit prescribed by law has been shown here. It could be argued that the right to cross‑examine those adverse in interest, which holds particular danger for an accused giving evidence at his trial because his past statements may be receivable against him on the issue of his guilt or innocence, would suffice to create such a limitation. If this common law right were relied upon, that is, the right of cross‑examination, it would nullify completely the effect of s. 13, for in this case protection from cross‑examination on these statements is all that the respondent seeks. This, even if it could be said to be prescribed by law, would not constitute a reasonable limit. It would deprive the respondent of any protection and deny s. 13 any effect in this case, and enlarge the right of cross‑examination beyond that which would have been permitted had s. 5(2) of the Canada Evidence Act been applicable. This would not meet the proportionality test established in R. v. Oakes, [1986] 1 S.C.R. 103. Because it is my view that the effect of s. 13 of the Charter is to make a fundamental change in the pre‑existing law, I would dismiss the Crown's appeal and confirm the order for a new trial. I would answer the questions as follows:
1. Whether the cross‑examination of an accused at a new trial on testimony given at a previous trial on the same charge infringes or denies the right guaranteed in s. 13 of the Canadian Charter of Rights and Freedoms ?
Yes.
2. If so, is such cross‑examination justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and, therefore, not inconsistent with the Constitution Act, 1982 ?
No.
Appeal dismissed.
Solicitor for the appellant: Jack Watson, Edmonton.
Solicitors for the respondent: Pringle, Brimacombe & Sanderman, Edmonton.
Solicitor for the intervener: Roger Tassé, Ottawa.
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