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Defence lawyers often deal with clients who have concurrent proceedings in family court, particularly the client accused of domestic-related offences. The purpose of this paper is twofold: 1) to assist the defence lawyer with substantive evidence law and 2) assist in advising the client with ongoing family law matters. Questions might arise about whether it is prudent or strategic to be the moving party in a motion for e.g. interim custody of the children. Does it matter who brings the motion? Could the evidence in the family proceeding damage the client’s prospects in the criminal proceeding?

Background

The general self-incriminatory rule is that an accused person should not be compelled to give evidence against him or herself. This protection emanates from many parts of our constitution including the right to silence and the right not to be compelled to be a witness in one’s own prosecution. The most overt protection against self-incrimination is found in s. 13 of the Canadian Charter of Rights and Freedoms (the Charter).1

Section 13 of the Charter provides:
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.

While many provisions in both the Charter and the Canada Evidence Act2 (CEA) provide overlapping safeguards, (including s.5(2) of the latter), this paper shall consider only s. 13 protection because these related provisions operate with different scope. Also, it is generally accepted that s. 13 provides the widest protection and requires the least formal compliance to benefit from it.3 Section 5(2) of the CEA requires the witness to formally seek its protection whereas s.13 operates without regard to the witness’ awareness of its protection. For that reason, it is said to offer the widest safeguard.

Application of the principle against self-incrimination in criminal proceedings forbids the Crown from adducing evidence given by a witness in “any proceeding” into evidence “in any other proceeding,” except for the narrow purpose of a prosecution against an untruthful witness. In exchange for a witness’ full, frank evidence, the state offers use immunity of that testimony against that witness.

The Supreme Court of Canada has considered s. 13 protection on a number of occasions.4 R. v. Henry5 is the Court’s most recent proclamation on self-incrimination and is the leading case on the matter. Henry had testified at his first trial of first degree murder. He also elected to testify at the re-trial five years later. At issue in the appeal was whether the Crown ought to have been able to put inconsistencies from his earlier testimony at the first trial to him in cross-examination at the second trial.

Justice Binnie, writing for a unanimous court, held that while the Crown is prevented from using previous testimony against an accused in-chief, it is not prevented from using it for the purpose of cross-examining the voluntarily testifying accused in the subsequent proceeding on the same indictment. The rationale the court adopted for its reasoning is clear: the accused who testifies is not compelled.

Henry clarifies the protection offered by s. 13 regarding the use of compelled testimony in other proceedings. It makes clear that a witness providing evidence in one proceeding and who subsequently testifies in their own separate criminal proceeding cannot be impeached with prior testimony for any purpose, except in prosecutions for perjury or the giving of contradictory evidence. Henry dispenses with the cumbersome analysis culminating in Noël about using the prior testimony for impeaching credibility and whether that testimony was incriminating or innocuous at the time it was given and whether its subsequent use was incriminating or innocuous.

Henry confirms Noël insofar as there is no longer any requirement for a witness to assert a s.13 right, unlike s. 5(2) of the Canada Evidence Act.6

Henry makes clear that:

1) a witness in one proceeding who subsequently becomes an accused in another proceeding cannot be confronted with the previous testimony, either in the Crown’s case in chief or in cross-examination (even for impeachment of credibility);2) the witness need not assert any right against self-incrimination for this protection to be operative;3) the rationale for the protection emanates from the compulsion to incriminate oneself;however;

4) an accused testifying in a criminal trial cannot testify on the re-trial and insulate himself from being confronted in cross-examination with his testimony in the first trial.

Questions not satisfactorily answered directly in this case are: what constitutes other proceedings? What kind of evidence qualifies? Under what circumstances can evidence be deemed compelled?

Definition of “other proceedings”

What constitutes “other proceedings” is a matter of direct relevance. Clearly, testifying at the trial of another person constitutes another proceeding.7 Less clear is whether related civil or family proceedings, or even an accused’s own bail hearing are sufficiently remote to qualify for s. 13 protection as “other proceedings.”

In R. v. Richards,8 it was submitted by counsel for the accused that the accused’s bail hearing testimony and evidence on a voir dire ought to be treated as other proceedings. Counsel for the Crown did not directly oppose this submission and the British Columbia Court of Appeal proceeded on the basis that this evidence qualified as other proceedings.

Similarly, in R. v. Nedelcu,9 the Court ruled that the Crown ought to be prohibited from cross-examining an accused on transcript from his civil examination for discovery because he had been the respondent in that action and his participation was effectively conscripted.

Given these decisions it appears that “other proceedings” is given a fairly wide interpretation

Family law proceedings

In light of the view of “other proceedings” determined in Richards and the Ontario Court of Appeal’s view in Nedelcu, there is little doubt that civil proceedings, in which family matters are included, qualify as other proceedings in the context of a criminal trial.10 As such, evidence given in them theoretically qualifies for protection as contemplated directly in Henry. However, the protection is not absolute; it shall only be granted so long as the evidence conforms to the basic rule.

The basic rule

A defendant, or respondent as they are called in the Family Law Rules (the Rules),11 who is answering a case provides compelled evidence in the ordinary course when they are required to testify under the Rules.12

In Nedelcu, the accused was a defendant in a civil action that proceeded concurrently with the criminal process. Apparently a co-worker, one Mr. Perdon, was riding on Nedelcu’s motorcycle without a helmet and the vehicle subsequently crashed and Perdon was permanently injured. Nedelcu was charged with dangerous driving causing bodily harm and found guilty. He was also sued by Perdon. At issue in the criminal appeal was whether Nedelcu had provided compelled evidence in his examination for discovery and whether its use in his subsequent criminal trial for the purpose of impeaching his credibility was proper. In allowing the appeal from conviction, Armstrong J.A. concluded that defendants participating in a civil action gain nothing from participating and are therefore compelled:

 “The appellant was a defendant in a civil action brought against him. He was not the plaintiff. He was compelled to testify on the examination for discovery solely for the benefit of the plaintiffs. He was not entitled to use his discovery evidence in the civil trial. If he wished his story told, he must step into the witness box at trial. From an evidentiary point of view, there is nothing that a witness can do on discovery to help his case.”13

Justice Armstrong followed the reasoning in Henry stating that once evidence from one proceeding is deemed compelled, that it cannot be subsequently used for any purpose except for prosecutions for perjury.

What is not satisfactorily answered by this judgment is whether the inability to assist one’s own case is determinative of the compulsion described, thereby preventing plaintiffs or moving parties from benefiting from s. 13 protection.

What consitutes evidence?

The protection in s. 13 extends to a witness who testifies and provides evidence. On its face, the protection offered appears restricted to testimonial evidence. While this is the primary form of evidence contemplated, it appears that if an affidavit is tendered in lieu of testimony that its testimonial quality could be sufficient to invoke s. 13 safeguards.14

In R. v. Baksh, a complicated procedural case, an accused had sworn an affidavit relating to his personal health circumstances and filed it at the initial proceeding. That proceeding was ruled a mistrial and a subsequent proceeding had been convened. At issue was the use that could be made of the affidavit initially sworn and tendered. Justice Hill, in ruling the affidavit was sufficiently evidentiary to qualify for s. 13 protection stated:

 “On the other hand, Mr. Baksh’s affidavit, Exhibit #2 in the former trial, carries testimonial quality protected by s.13 of the Charter…the under-oath affidavit would not be admissible if tendered by the prosecution.”15

Baksh was decided without Henry’s guidance but it can be relied upon as authority for the proposition that an affidavit voluntarily submitted as evidence in lieu of testimony is eligible for s. 13 protection. In light of Henry, it seems clear that the Crown would have been at liberty to cross-examine Baksh had he subsequently testified (the same facts as in Henry).

Although Baksh was a criminal case, the focus on affidavits is highly probative in family law. Many motions both procedural and substantive in family court are argued on the strength of affidavits.

Further authority for the proposition that affidavits qualify for s. 13 protection can be found in the quasi-criminal contempt proceedings in Merck & Co., Inc. v. Apotex Inc. As Justice Mackay observes, affidavits take on a testimonial character:

 “Those proceedings, for judicial review, progress to a hearing on the basis of affidavit evidence, and often of transcripts of cross-examination upon any affidavits filed, and without oral testimony. In my opinion, in circumstances where the affidavit is that of a person subsequently ordered in other proceedings to show cause why he or she should not be found in contempt, and that person has not testified in the later proceedings, the affidavit from prior judicial review proceedings, and any cross-examination upon it, falls within the meaning of “testimony” within section 13 of the Charter. It may not be adduced by the opposing party whose reliance upon it would constitute incriminating use within section 13.”17

The impermissibility in this case was the attempted submission of a prior affidavit in the ‘prosecution’s’ case in-chief. Whether the defendant cum accused could have been cross-examined with his affidavit was not directly decided because the accused did not testify. However, again, relying on the reasoning in Henry, it seems unlikely that cross-examination would have been permissible.

This line of authority seems to indicate that affidavits proffered in civil proceedings are protected from use in the affiants’ subsequent prosecution. As always, the compelled nature of the evidence elicits the protection, not the formal substance.18

What qualifies as compulsion? How can a family litigant be compelled to give evidence?

Unlike criminal proceedings, family proceedings are civil in nature and as a result, every party can be forced to participate.19 The Ontario Evidence Act (EA) is the applicable evidentiary statute in civil proceedings instituted in Ontario. Its dictates overtly permits compelled testimony.

Similarly, the Family Law Rules, incorporating s. 8 of the EA, contain rules compelling a party’s participation in various steps in the process. The relevant rules are: Rule 20(5)20– questioning a witness and disclosure; and Rule 23(11)21 – calling opposing party as witness at trial. These two rules provide a forum for one party to require the other party to provide evidence.

In situations where a respondent has been forced to provide evidence in a family proceeding, it seems clear that its subsequent use in a criminal trial for any purpose would be prohibited. However, what remains uncertain is whether similar protection would be afforded an applicant (the originator of a family law process). There is currently no authority on point.

Given the rationale employed by the Supreme Court, it seems doubtful that an applicant who initiated proceedings, but who is then subsequently compelled to testify in any manner by the opposing side could be denied s. 13 protection. After all, it is the compulsion that crystallizes the shield, not the underlying circumstances that leads to the compulsion.

What/who is protected?

It seems as though a party to a proceeding at whose instance the next stage is instigated would not be subject to self-incriminating protection. The moving party to a motion, for instance, is actively seeking a result and it would be contrary to the rationale in Henry and Nedelcu to prohibit impeachment.

Further, the protection does not extend to tactical compulsions to testify.22 This was the case in Henry. For the same reason that an accused who feels they must testify at their re-trial is not afforded s. 13 protection, a party to a civil proceeding who voluntarily testifies should not benefit due to lack of compulsion.

Application

The greatest difficulty in applying Henry when faced with previously given evidence will likely be whether the previous evidence was compelled. If evidence is determined to be compelled, Henry’s guidance is clear. Whether non-compelled evidence could be used by the Crown in-chief or to impeach credibility in subsequent criminal proceedings is outside the scope of this paper. However, it appears as though its use would be limited to the latter.

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1Canadian Charter of Rights and Freedoms, Part 1of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

2Evidence Act, R.S.C., 1985, c. C-5

3Per Arbour J. in R. v. Noël, [2003] 3 S.C.R. 433 at para 32

4See R. v. Kuldip, [1990] 3 S.C.R. 618, R. v. Allen, [2003] 1 S.C.R. 223, R. v. Noël, [2003] 3 S.C.R. 433, and Dubois v. The Queen, [1985] 2 S.C.R. 350. The evolution of the jurisprudence of this Charter section exceeds the scope of this paper.

5R. v. Henry, [2005] 3 S.C.R. 609

6R. v. Simpson, 2012 NSSC 66 at para 32:

 “In the days before the Charter, a question of that kind, in a criminal or a civil case, would have provoked an automatic intervention by the bench. In my experience, the judge would refer to s. 5(2) of the Canada Evidence Act and ask the witness if he wanted to take the benefit of it. We no longer do that. We rely on s. 13, which operates without the formality of an objection.”

7Noël, supra at para 20
8R. v. Richards, (1997) 6 CR (5th) 154 (BC CA)
9R. v. Nedelcu, 2011 ONCA 143br /> 10Richards, supra, at para 52
11Family Law Rules, O. Reg. 439/07, s.1
12Nedelcu, supra, at para 27 and 29
13Nedelcu, supra at para 32
14R. v. Baksh, (2005), 199 C.C.C.(3d) 201, aff’d, 2008 ONCA 116 (Endorsement); leave to appeal refused [2008] S.C.C.A. No. 155, and in Buxbaum [1989] O.J. No. 539, 70 C.R.(3d) 20, leave to appeal refused [1989] S.C.C.A. No. 239
15R. v. Baksh, 2005 199 CCC (3d) 201 at para 80
16& Co., Inc. v. Apotex Inc., [1998] 3 FC 400; 79 CPR (3d) 501; 146 FTR 148
17Ibid
18But see The Queen v. Innocente, 2001 NSSC 138, in the context of a s. 462.34 of the Criminal Code of Canada, R.S.C., 1985 c. C-46 application to release seized funds where the Crown was able to impeach the accused’s credibility with an affidavit he had sworn in a family law proceeding. The affidavit was used to impeach the accused’s credibility when he testified on the application. This use was permitted prior to Henry so long as the purpose was to impeach credibility not to incriminate. In light of the Supreme Court’s new dictum on self-incrimination, it is unlikely that this use would now be lawful.
19Evidence Act, R.S.O. 1990, Chapter E.23, s. 8(1):

 “8. (1) The parties to an action and the persons on whose behalf it is brought, instituted, opposed or defended are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties, and the spouses of such parties and persons are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of any of the parties.”

20Family Law Rules, Supra at r. 20(5)

 Questioning a witness – Rule 20
The language and terminology in the Rules were modified several years ago to make them more accessible to the layperson. Questioning is merely the name given to the old concept of examination for discovery. It is not asserted as of right but can be required by judge’s order. A party to a proceeding need only show that:

  1. 1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
  2. 2. The information is not easily available by any other method.
  3. 3. The questioning or disclosure will not cause unacceptable delay or undue expense.

21Ibid at r. 23(11) and (12)

 Calling Opposing Party at Trial – Rule 23
23. […]
“(11) A party may call the opposing party as a witness and may cross-examine the opposing party.”

22R. v. Henry, supra, para 46