On Thursday, May 26, the Centre for Constitutional Studies hosted the latest installment of its Downtown Charter Series with Professor Peter Sankoff presenting Section 13 - the right against self-incrimination - of the Canadian Charter of Rights and Freedoms.
Section 13 protects witnesses against self-incrimination when they testify in legal proceedings. Prof. Sankoff compared Section 13 with its American counterpart, the 5th Amendment, which takes a different approach to witness protection. Whereas Section 13 affords "back end protection" - once a witness provides a self-incriminating statement, it cannot be used against them - the 5th Amendment provides "front end protection" in that witnesses can refuse to provide incriminating statements at the outset. Section 13 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, except in a prosecution for perjury or for the giving of contradictory evidence". Essentially, a witness must respond truthfully to questions during examination, however, any statements that are self-incriminating cannot later be used against them in legal proceedings. There is a common sense exception to the rule that a witness' statement can be used against them during a perjury prosecution. The exception ensures that the penalties for lying to the court remain intact.
While Section 13 protects witnesses after they have disclosed information, its American equivalent allows witnesses to "plead the fifth" and refuse to provide any self-incriminating statements. A lively discussion between Prof. Sankoff and the Downtown Charter Series attendees sketched out the consequences of these two different approaches.
The American approach prevents the court from discovering evidence that could be essential to an accused's guilt or innocence. Prof. Sankoff cited the OJ Simpson trial to illustrate how an accused can benefit from a witness pleading the fifth. When asked at trial whether he tampered with evidence, Det. Mark Fuhrman pled his fifth amendment. His refusal denied the court key information in the case, and significantly undermined the police department's credibility. Section 13 prevents this kind of evidence deprivation in Canada; however, many argue that there are inadequate witness protections to protect against derivative uses of their testimony. A witness' statements cannot be used against them in a trial, however it is difficult to prevent the police from building a case against the witness using the information in the self-incriminating statements. For example, police could use the information obtained in those statements to obtain a search warrant.
Prof. Sankoff indicated that there are still unresolved areas of law surrounding Section 13, and there has been a great deal of inconsistency from the Supreme Court on the topic.
The Centre for Constitutional Studies launched the Downtown Charter Series in March with Prof. Steven Penney's lecture on "The Charter, and the Right to be Free From Unreasonable Search and Seizure, as it Relates to Digital Devices". The Speaker Series - free and open to the public - features a different section of the Charter of Rights and Freedoms in each lecture. The next installment will take place on June 23 where Prof. Eric Adams will explain Section 2b, the Charter's fundamental freedom of expression, in "What Expression Does the Charter Protect?" It will be held in Room 2-922 of the Faculty of Extension at Enterprise Square (Jasper Ave. between 102 St. and 103 St.)