R. v. Noël

R. v. Noël
Collection
Supreme Court Judgments
Date
2002-10-31
Neutral citation
2002 SCC 67
Report
[2002] 3 SCR 433
Case number
28734
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Constitutional law
Evidence
Notes
SCC Case Information: 28734
Decision Content
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