Dubois v. The Queen

Dubois v. The Queen
Collection
Supreme Court Judgments
Date
1985-11-21
Report
[1985] 2 SCR 350
Case number
18608
Judges
Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 18608
Decision Content
Dubois v. The Queen, [1985] 2 S.C.R. 350
Daniel Dubois Appellant;
and
Her Majesty The Queen Respondent.
File No.: 18608.
1984: October 25; 1985: November 21.
Present: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ First trial taking place prior to proclamation of Charter ‑‑ Incriminating evidence given by accused at first trial not admissible against him at second trial ‑‑ Protection against self‑incrimination guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms .
Criminal law ‑‑ Evidence ‑‑ Admissibility ‑‑ Self‑incrimination ‑‑ Retrial ‑‑ Accused's evidence at first trial not admissible against him at second trial ‑‑ Canadian Charter of Rights and Freedoms, s. 13 .
Appellant was convicted by a jury of second degree murder but the Court of Appeal granted a new trial on grounds of misdirection to the jury. At the second trial, held after the proclamation of the Canadian Charter of Rights and Freedoms , the Crown introduced as evidence appellant's testimony given voluntarily at his first trial. Defence counsel objected arguing that it was contrary to s. 13 of the Charter which provided 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...." The trial judge ruled that the protection against self‑incrimination guaranteed by s. 13 did not apply as the Charter came into force after appellant had testified in his first trial. Appellant was again convicted. His appeal, on the sole ground that his first trial testimony should have been excluded, was dismissed. The Court of Appeal held that the second trial was not "any other proceedings" within the meaning of the section and therefore appellant could not invoke s. 13 under these circumstances.
Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered.
Per Dickson C.J. and Estey, Chouinard, Lamer, Wilson and Le Dain JJ.: Section 13 of the Charter precludes the admission at the second trial of the evidence given by the appellant at his first trial. The purpose of s. 13 , when the section is viewed in the context of s. 11 (c) and (d) ‑‑ the right of non‑compellability and the presumption of innocence ‑‑ is to protect individuals from being indirectly compelled to incriminate themselves. This protection inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him. The time at which the previous testimony is given is irrelevant. Thus, no issue of retrospectivity arises in this case since the attempt to use appellant's testimony occurred after the coming into force of the Charter .
The fact that s. 13 is framed in the present tense, does not preclude it from applying in a situation where the witness in question was the accused and when the testimony in issue had been given previously. The phrase "A witness who testifies..." merely clarifies that the word "witness" includes a voluntary witness.
Although s. 13 refers twice to the notion of incrimination, the evidence in issue need not be incriminating in the first proceeding in which it was given and in the second where the Crown attempts to use it. The purpose of the section clearly indicates that the incriminating nature of the evidence must be evaluated only in the second proceeding. Any evidence the Crown tenders as part of its case against the accused is, for the purpose of s. 13, incriminating evidence.
A retrial of the same offence falls within the meaning of the words "any other proceedings". The courts must interpret each section of the Charter in relation to the others. Here, to allow the Crown to use, as part of its case, the accused's previous testimony would in effect allow the Crown to do indirectly what it is estopped from doing directly by s. 11 (c), i.e., to compel the accused to testify. It would also permit an indirect violation of the right of the accused to be presumed innocent and remain silent until proven guilty by the Crown, as guaranteed by s. 11 (d) of the Charter . Such a result should be avoided.
Finally, assuming that s. 613(1) (b)(iii) of the Criminal Code can apply to a Charter violation and to a remedy under s. 24 , given the nature of the evidence, this would not be a proper case for applying the proviso.
Per McIntyre J., dissenting: Where a court of appeal quashes a conviction and orders a new trial, s. 13 of the Charter does not preclude the admission at the second trial of the evidence given by the accused at his first trial. A new trial cannot, on a fair reading of s. 13 , be considered as another proceeding. The word "proceedings" in s. 13 , means, in a criminal case, all judicial steps taken upon one charge to resolve and reach a final conclusion of the issue therein raised between the same party and the Crown. This would include the preliminary hearing, the trial, and an appeal and a new trial. Therefore, while s. 13 provides a wider protection against self‑incrimination than that provided by s. 5(2) of the Canada Evidence Act , the section does not apply to evidence voluntarily given at a different stage in the same proceedings.
Although appellant cannot be compelled to give evidence at his second trial, this protection, provided by s. 11 (c) of the Charter , does not extend to bar the use in evidence of earlier voluntarily statements that he has made which are clearly relevant to the issues.
Cases Cited
By the majority
R. v. Brown (No. 2) (1963), 40 C.R. 105 (S.C.C.), rev'g (1963), 40 C.R. 90 (N.W.T.C.A.), distinguished; Piché v. The Queen, [1971] S.C.R. 23; R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909; Marcoux v. The Queen, [1976] 1 S.C.R. 763, considered; R. v. Appleby, [1972] S.C.R. 303; R. v. Antoine (1983), 5 C.C.C. (3d) 97; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Regina Public School District v. Gratton Separate School District (1915), 50 S.C.R. 589; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Carson (1983), 20 M.V.R. 54; R. v. Konechny, [1984] 2 W.W.R. 481; Reference re Education Act of Ontario and Minority Language Education Rights (1984), 47 O.R. (2d) 1, referred to.
By the minority
R. v. Brown (No. 2) (1963), 40 C.R. 105 (S.C.C.), rev'g (1963), 40 C.R. 90 (N.W.T.C.A.); R. v. Sophonow (No. 1) (1983), 6 C.C.C. (3d) 394 (Man. Q.B.), approved (1984), 12 C.C.C. (3d) 272 (C.A.); R. v. Mannion (1983), 6 C.C.C. (3d) 161 (Alta. Q.B.), approved (1984), 11 C.C.C. (3d) 503 (C.A.); R. v. Yakeleya (1985), 20 C.C.C. (3d) 193; Tass v. The King, [1947] S.C.R. 103; R. v. Coote (1873), L.R. 4 P.C. 599; R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909; R. v. Erdheim, [1896] 2 Q.B. 260; Eddy v. Stewart, [1932] 3 W.W.R. 71; R. v. McGregor, [1967] 2 All E.R. 267; Klein v. Bell, [1955] S.C.R. 309; R. v. Wilson (1982), 67 C.C.C. (2d) 481.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 2, 5.
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (c), (d), 13 , 24 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 469, 613(1)(b)(iii).
Authors Cited
Black’s Law Dictionary, 5th ed., St. Paul, Minn., West Publishing Co., 1979 "proceeding".
Côté, P. A. The Interpretation of Legislation in Canada, Cowansville, Ed. Yvon Blais Inc., 1984.
Halsbury’s Laws of England, 4th ed., vol. 37, London, Butterworths, 1982.
Kaufman F. The Admissibility of Confessions, 3rd ed., Toronto, Carswells, 1979.
Phipson on Evidence, 13th ed. by J. H. Buzzard, R. May and M. N. Howard, London, Sweet & Maxwell, 1982.
Ratushny, E. "The Role of the Accused in the Criminal Process" in The Canadian Charter of Rights and Freedoms , W. Tarnopolsky and G.‑A. Beaudoin (eds.), Toronto, Carswells, 1982.
Ratushny, E. Self‑incrimination in the Canadian Criminal Process, Toronto, Carswells, 1979.
Wigmore on Evidence, vol. 8, rev. by J. T. McNaughton, Boston, Little, Brown and Co., 1961.
APPEAL from a judgment of the Alberta Court of Appeal (1984), 11 C.C.C. (3d) 453, 9 C.R.R. 61, 39 C.R. (3d) 281, 31 Alta. L.R. (2d) 16, 8 D.L.R. (4th) 589, 51 A.R. 210, [1984] 3 W.W.R. 594, dismissing the accused's appeal from his conviction for murder. Appeal allowed and new trial ordered, McIntyre J. dissenting.
Peter Lamont, for the appellant.
Bruce Duncan, for the respondent.
The judgment of Dickson C.J. and Estey, Chouinard, Lamer, Wilson and Le Dain JJ. was delivered by
1. Lamer J.‑‑When a new trial is ordered on the same charge or on an included offence by a court of appeal, can the Crown adduce as evidence‑in‑chief the testimony given by an accused at the former trial? That question was addressed by this Court prior to the coming into force of the Canadian Charter of Rights and Freedoms (Constitution Act, 1982 , as enacted by the Canada Act 1982, 1982 (U.K.), c. 11), in a different legal setting, in R. v. Brown (No. 2) (1963), 40 C.R. 105, and answered affirmatively. It now comes back to us because of s. 13 of the Charter .
The Facts
2. The appellant was charged in Alberta with second degree murder. At his trial before Rowbotham J. sitting with a jury, the appellant gave evidence in his defence, admitting that he had killed the deceased but also alleging certain circumstances of justification. The appellant did not invoke the protection of s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10. The appellant was convicted, but successfully appealed the conviction to the Alberta Court of Appeal and was granted a new trial on grounds of misdirection to the jury: (1982), 69 C.C.C. (2d) 494. At the new trial, the Crown read in the appellant's testimony from the first trial over the objection of appellant's counsel, such objection based on s. 13 of the Charter . The appellant chose not to testify nor did he call any evidence. He was again convicted. He appealed again to the Alberta Court of Appeal on the sole ground that the trial judge erred in admitting into evidence, as part of the Crown's case, the testimony of the appellant from his former trial. The appeal was dismissed: (1984), 11 C.C.C. (3d) 453, 9 C.R.R. 61, 39 C.R. (3d) 281, 31 Alta. L.R. (2d) 16, 8 D.L.R. (4th) 589, 51 A.R. 210, [1984] 3 W.W.R. 594. The accused now comes to this Court.
3. The Charter had not come into force at the time the appellant testified in his first trial but was in force when Crown counsel adduced his evidence‑in‑chief in the second trial.
The Statutes
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.
13. Chacun a droit à ce qu'aucun témoignage incriminant qu'il donne ne soit utilisé pour l'incriminer dans d'autres procédures, sauf lors de poursuites pour parjure ou pour témoignages contradictoires.
Canada Evidence Act
5. (1) No witness 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 of any person.
(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.
The Judgments
Alberta Court of Queen’s Bench
4. Moshansky J. admitted into evidence the appellant's previous testimony, holding that s. 13 of the Charter did not apply as the Charter did not come into force until after the appellant had testified in his first trial: (1983), 5 C.C.C. (3d) 273, 6 C.R.R. 125. He stated that since s. 13 is framed in the present tense, it is intended to apply to a witness who testifies rather than to one who has testified on some previous occasion.
5. The trial judge then went on to say that regardless of the retrospectivity question, s. 13 would still not apply as the section is intended to apply to a witness rather than to an accused. He did not find it necessary to deal with the argument concerning the meaning of the words "other proceedings" in s. 13 .
Alberta Court of Appeal
6. The court ruled that the evidence was admissible, although it disagreed with the trial judge's finding that s. 13 did not apply because of the retrospectivity argument. The court held that s. 13 did apply in a situation where the witness in question was the accused and when the testimony in question had been given previously. The court stated that s. 13 in effect sets forth "the right to have the testimony not used". However, the court ruled that the second trial is not "any other proceedings" and therefore the accused could not invoke s. 13 under these circumstances.
7. Respondent Crown takes the view that s. 13 could not be invoked by the accused at his second trial because it applied only to testimony given after the advent of the Charter , that in any event the evidence in this case when given was not "incriminating", and furthermore, that a retrial is not "any other proceedings". Finally, the respondent invokes, as a subsidiary argument, s. 613(1) (b)(iii) of the Criminal Code .
8. As I am of the view that this appeal should succeed, I will address all of the issues raised by the respondent in support of the Court of Appeal's conclusion to dismiss the accused's appeal.
Nature and Purpose of s. 13
9. A plain reading of s. 13 indicates that the guarantee it provides is directed against self‑incrimination through the use of one's previous testimony. It is a very specific form of protection against self‑incrimination and must therefore be viewed in the light of two closely related rights, the right of non‑compellability and the presumption of innocence, set forth in s. 11 (c) and (d) of the Charter :
11. Any person charged with an offence has the right
...
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
10. Section 11 (d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence. As Laskin J. (as he then was) wrote in R. v. Appleby, [1972] S.C.R. 303, at p. 317:
The "right to be presumed innocent" ...is, in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted. In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S. (1895), 156 U.S. 432 at 452.
11. The Crown's "burden of establishing guilt" and the "right of silence", i.e., the concept of a "case to meet", which are essential elements of the presumption of innocence, also underlie the non‑compellability right. For, as Professor Ratushny has written,
In many ways, it is the principle of a `case to meet' which is the real underlying protection which the `non‑compellability' rule seeks to promote. The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence. However, even where a `case to meet' has been presented, the burden of proof remains upon the Crown to the end.
12. ("The Role of the Accused in the Criminal Process", in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms (1982), at pp. 358‑59.)
The accused need only respond once. The Crown must present its evidence at an open trial. The accused is entitled to test and to attack it. If it does not reach a certain standard, the accused is entitled to an acquittal. If it does reach that standard, then and only then is the accused required to respond or to stand convicted.
13. (Self‑incrimination in the Canadian Criminal Process (1979), at p. 180.)
14. As such, the concept of the "case to meet" is common to ss. 11 (c), (d) and 13 . In the context of ss. 11 (c) and 13 , it means specifically that the accused enjoys "the initial benefit of a right of silence" (R. v. Appleby, supra) and its corollary, protection against self‑incrimination. Section 13 , like s. 11 (c), is a recognition of the principle that,
...the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself.
15. (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), para. 2251, at p. 318.)
16. 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, to ensure that the Crown will not be able to do indirectly that which s. 11 (c) prohibits. It guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings.
17. The consequences which flow from the nature and purpose of the right enunciated in s. 13 touch upon the following issues:
1. Whether the section applies to a witness who testifies or to a person who has testified on a previous occasion, that is, the determination of the beneficiary of the right;
2. the interpretation of the terms "incriminating evidence" and "used to incriminate";
3. the interpretation of the terms "any other proceedings".
18. For reasons hereinafter stated, while s. 11 (c) and (d) both have a bearing on the determination of these three issues, s. 11 (c) (non‑compellability) is determinative as regards the first two, whilst s. 11 (d) (the burden of proof and the concept of the case to meet) is determinative of the third question, the meaning of "any other proceedings".
19. I shall address each in turn.
The Beneficiary of the Right
20. In my view, s. 13 is not being given in this case a retrospective effect. As I have indicated earlier, s. 13 guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings. That right came into force on April 17, 1982, the date of the coming into force of the Charter . However, given the nature and purpose of the right, it inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him or her. The time at which the previous testimony was given is irrelevant for the purpose of determining who may or may not claim the benefit of s. 13 . As of April 17, 1982, all persons acquired the right not to have evidence previously given used to incriminate them. The protection accorded by the right is related not to the moment the testimony is given, but to the moment at which an attempt is made to use that evidence in an incriminating fashion.
21. The fact of having given previous testimony is no more than a requisite for the operation of s. 13 . To quote Martin J.A. in R. v. Antoine (1983), 5 C.C.C. (3d) 97 at pp. 102‑03:
An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: see R. v. Johnston (1977), 34 C.C.C. (2d) 325, [1977] 2 W.W.R. 613, 37 C.R.N.S. 234; affirmed [1978] 2 S.C.R. 391, 39 C.C.C. (2d) 479n, [1978] 2 W.W.R. 478 (S.C.C.); R. v. Negridge (1980), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255 (Ont. C.A.).
22. As section 13 guarantees the right of a person against self‑incrimination, rather than the rights of a witness giving testimony, it inures to an individual only at the moment an attempt is made to use previous testimony to incriminate its author. Since in this case the attempt to use Dubois' previous testimony occurred after the coming into force of the Charter , there arises here no issue of retrospectivity.
23. The Crown has argued that the right expressed in s. 13 accrues only to an individual who is a "witness", that the right is given "to an individual qua witness and not qua accused". The Crown seeks support for this position in the fact that the section speaks in the present tense. The protection, it is argued, is given to "a witness who testifies and not to a witness who has testified". That argument was answered in part by Kerans J.A. of the Alberta Court of Appeal in the present case reported at (1984), 11 C.C.C. (3d) 453 where he stated at p. 455:
It is argued correctly for the Crown that, on the day on which the Charter came into force, the accused was a witness who had testified, and not a witness who was yet to testify. But the expression `a witness who testifies' was inserted in the Charter in substitution of the draft words `a witness...when compelled to testify' in order to remove doubt whether a technically voluntary witness, such as an accused, can assert the protection of the section. The words `who testifies' merely clarify that `witness' includes a voluntary witness: see the analysis by Grotsky J. in R. v. Staranchuk (1982), 3 C.C.C. (3d) 138, [1983] 2 W.W.R. 145, 45 C.B.R. (N.S.) 200 (overruled on other grounds 8 C.C.C. (3d) 150, 3 D.L.R. (4th) 574, [1983] 6 W.W.R. 729). I therefore accept the contention for the accused that the right to prevent incriminating use of previous testimony extends to all witnesses, and whenever they testify.
24. Section 13, unlike s. 5(2) of the Canada Evidence Act , does not require any objection on the part of the person giving the testimony, nor does it refer to any compulsion to answer. Indeed, as noted by Kerans J.A. in the passage quoted above, the "compulsion to answer" requirement, which was set forth in a previous draft of s. 13 , was ultimately removed from the final version of the section. Thus, the legislative history of the provision indicates that " `witness' includes a voluntary witness".
25. Moreover, given the nature and purpose of the right, which is essentially protection against self‑incrimination, the issue of whether the testimony was compulsory or voluntary at the moment it was given is largely irrelevant. The focus of the right is on the second proceedings, the time at which the previous testimony is sought to be used, rather than the time at which it is given.
26. For these reasons, s. 13, in my view, applies as much to testimony voluntarily given by an accused as to testimony given by a witness under compulsion.
27. The Crown has relied upon the case of Marcoux v. The Queen, [1976] 1 S.C.R. 763, in support of its position. In that case, Dickson J., (as he then was), speaking for the Court, stated that the privilege against self‑incrimination extended to the accused "qua witness and not qua accused". However, in that case Dickson J. was delineating the scope of the privilege in relation to a refusal by a suspect to participate in an identification line‑up and thus contrasting testimonial compulsion with other forms of compulsion. He stated, at pp. 768‑69:
The privilege, historically and comprehensively analyzed in 8 Wigmore on Evidence (McNaughton revision 1961) art. 2250, pp. 284 et seq., developed in revulsion from the system of interrogation practised in the old ecclesiastical courts and the Star Chamber, i.e. summoning a person, without giving him warning of the charge against him, and examining him on oath. The general rule evolved that no one was bound to answer any question if the answer would tend to expose him to a criminal charge. As applied to witnesses generally, the privilege must be expressly claimed by the witness when the question is put to him in the witness box, Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 5. As applied to an accused, the privilege is the right to stand mute. An accused cannot be asked, much less compelled, to enter the witness box or to answer incriminating questions. If he chooses to testify, the protective shield, of course, disappears. In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally ....
28. Marcoux thus stands for the proposition that the protection against self‑incrimination is not functionally operative at the pre‑trial stage of a police line‑up. It in no way shores up the argument advanced by the Crown.
29. My view, therefore, is that the protection of s. 13 operates at the second proceedings; consequently the time at which the previous testimony was given and the question of whether it was given voluntarily or under compulsion are irrelevant. I am strengthened in this view by a brief analysis of s. 5(2) of the Canada Evidence Act in relation to s. 13 of the Charter .
30. At common law, a witness had the privilege of refusing to answer a question where the answer would tend to criminate him or her. That common law privilege has been abolished by s. 5(1) of the Canada Evidence Act . Section 5(2) of the Act provides, however, that:
(2) Where with respect to any question a witness objects to answer ... although the witness is ... 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 ....
31. 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. Hence section 5(2) has to some extent shifted the focus of the protection against self‑incrimination from the proceedings in which the testimony is given to subsequent proceedings in which the witness has become the accused.
32. The focus on the subsequent proceedings is even more pronounced in s. 13 of the Charter , which does not refer to any compulsion to answer at the time of the testimony nor to any objection to answer on the part of the accused. Consequently, although s. 13 refers to "A witness who testifies", it is, like its predecessor, designed to be operative and to protect the interests of the person in the subsequent proceedings. Indeed, it is even clearer in s. 13 that the right functions at the level of the "other proceedings".
33. For these reasons, the Crown cannot, in my view, succeed in this portion of its argument.
Incriminating Evidence
34. The wording of the section refers twice to the notion of incrimination. According to the Crown, this means that the evidence in issue must, (1) have been incriminating in the first proceedings in which it was given, and (2) be incriminating in the second proceedings where the Crown attempts to use it.
35. Although a literal reading of the section supports the position of the Crown, I am nevertheless of the view that s. 13 does not require that the incriminating character of the evidence be evaluated in the first proceedings as well as in the second. Indeed, the literal approach defeats the nature and purpose of the section and furthermore leads to absurdity. When such is the case, the literal approach should not prevail unless the language used is of "absolute intractability", which is not the case here. The comments of Anglin J. in Regina Public School District v. Gratton Separate School District (1915), 50 S.C.R. 589, at p. 624 are, in my view, appropriate to the Charter context:
Only `absolute intractability of the language used' can justify a construction which defeats what is clearly the main object of a statute.
...
It would be contrary to sound construction to permit the use of a term not altogether apt to defeat the intention of the legislature, which must not be assumed to have foreseen every result that may accrue from the use of a particular word.
This Court has already adopted a purposive approach in the context of the Charter 's interpretation: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As elaborated in the preceding pages of this judgment, the purpose of the section indicates that the only moment in time which is relevant to the assessment of the incriminating nature of the evidence is the second proceedings.
36. As regards absurdity, in a great many cases, whether evidence is incriminating or not can only be properly assessed at the time it is being used in the subsequent proceedings, at the time when the Crown seeks to make use of the evidence. How, for example, could one assess the incriminating nature of evidence at the first proceedings, when the witness is not necessarily the accused and when the crime for which the witness may subsequently be charged may not even yet have been committed.
37. The decision of this Court in Piché v. The Queen, [1971] S.C.R. 23, presents additional support for the view that the incriminating nature of the evidence must be evaluated in the second proceedings. In that case, a majority of this Court held that the admission in evidence of statements made by an accused to persons in authority, whether inculpatory or exculpatory at the time they were made, was governed by the same considerations that is, by reference to the use which the Crown sought to make of it rather than by its content.
38. In the context of s. 13 , the use which the Crown seeks to make of the evidence can only be ascertained at the time of the second proceedings.
39. For all of these reasons, I would reject the Crown's argument that the evidence in issue must be incriminating in both the first and second proceedings.
40. I am also of the view that any evidence the Crown tenders as part of its case against an accused is, for the purpose of s. 13 , incriminating evidence. The Crown tenders evidence to support its case and obtain a conviction; it knows best what is incriminating. In a sense, the Crown could be said to be estopped from arguing that the evidence it tenders to that end is not incriminating. Since in this case, the Crown is tendering the evidence as part of its case, which clearly comes within the meaning of "used to incriminate", we need not here address the question of whether those words include resort to the previous testimony for the purpose of cross‑examining the accused, were the latter to choose to take the stand again in his or her own defence.
Any Other Proceedings
41. Having established that s. 13 is a form of protection against self‑incrimination, it is still necessary to consider whether this implies that an accused who has chosen to testify should be protected in a retrial of the same offence or one included therein.
42. I do not see how the evidence given by the accused to meet the case as it was in the first trial could become part of the Crown's case against the accused in the second trial, without being in violation of s. 11 (d), and to a lesser extent of s. 11 (c). For, the accused is being conscripted to help the Crown in discharging its burden of a case to meet, and is thereby denied his or her right to stand mute until a case has been made out.
43. To allow the prosecution to use, as part of its case, the accused's previous testimony would, in effect, allow the Crown to do indirectly what it is estopped from doing directly by s. 11 (c), i.e. to compel the accused to testify. It would also permit an indirect violation of the right of the accused to be presumed innocent and remain silent until proven guilty by the prosecution, as guaranteed by s. 11 (d) of the Charter . Our constitutional Charter must be construed as a system where "Every component contributes to the meaning as a whole, and the whole gives meaning to its parts" (P. A. Côté writing about statutory interpretation in The Interpretation of Legislation in Canada (1984), at p. 236). The courts must interpret each section of the Charter in relation to the others (see, for example, R. v. Carson (1983), 20 M.V.R. 54 (Ont. C.A.); R. v. Konechny, [1984] 2 W.W.R. 481 (B.C.C.A.); Reference re Education Act of Ontario and Minority Language Education Rights (1984), 47 O.R. (2d) 1 (C.A.); R. v. Antoine, supra). To hold that a new trial is not "any other proceedings" within the meaning of s. 13 would in fact authorize an interpretation of a Charter right which would imply a violation of another Charter right. Such a result should be avoided.
44. A retrial of the same offence or one included therein, ordered by a court of appeal, is therefore "other proceedings" within the meaning of s. 13 .
45. Concern has been expressed as regards the logical extension of this reasoning to the admissibility of evidence given by an accused at the preliminary inquiry under s. 469 of the Criminal Code . The matter is not raised on this appeal. But, even assuming without deciding that a preliminary inquiry is another proceeding, the question then to be addressed is whether s. 469 would be, under s. 1 of the Charter , an unreasonable limit to the protections afforded by s. 13 . Relevant to this determination would, amongst other considerations, be the nature of the jeopardy in which an accused is placed, at that stage, if he chooses not to testify at the preliminary to rebut the "prima facie case".
46. Because of the Crown's great reliance on this Court's endorsement of Johnson J.A.'s remarks in R. v. Brown (No. 2), supra, I feel something must be said on the matter before concluding. That was a case where the Northwest Territories Court of Appeal (1963), 40 C.R. 90 had found that when a new trial is ordered because the first trial was a mistrial, the accused's evidence given at the first trial is not admissible in evidence against him at the second trial. Johnson J.A. dissented, and said that it was admissible. This Court reversed the Court of Appeal and adopted Johnson J.A.'s reasons. With respect, Johnson J.A.'s ratio decidendi is uncertain. It is difficult to ascertain to what extent the judge's dissent is dependent upon the fact that the accused did not object to answer, assuming he could have under the law, thereby bringing himself within the protection afforded by s. 5(2) of the Canada Evidence Act . The decision in Brown would not be an impediment to what I find is the proper construction of s. 13 of the Charter were it not for the following passage in Johnson J.A.'s reasons, at p. 101:
This privilege may be waived, and, of course, waiver takes place when a witness voluntarily enters the witness‑box and, without claiming the protection afforded by s. 5(2) of the Canada Evidence Act , gives evidence of a criminating nature. In Chambers v. Chambers (No. 2), [(1960), 31 W.W.R. 399], the court held that the privilege once waived could be reclaimed in the second trial between the same parties. Applying that rule to the present case, it is obvious that, because the appellant had waived the privilege of testifying at his first trial, he cannot be compelled by the Crown to enter the witness‑box and give the same evidence at the second. But it is said that admitting this evidence in the way it was done here amounts to calling the accused as a Crown witness without allowing him the right of refusing to testify. This argument is best answered in the words of Lord Campbell C.J. in the Regina v. Scott case, supra, p. 59. Referring to the accused, his Lordship says:
"The accusation of himself was an accomplished fact, and at the trial he was not called upon to accuse himself. The maxim relied upon (nemo tenetur seipsum accusare) applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given."
(Emphasis added.)
47. The Scott case (R. v. Scott (1856), Dears. & B. 47, 169 E.R. 909) concerns a bankrupt who was, under the laws of England, bound by statute to answer all questions touching matters relating to his trade dealings. He did so and was subsequently prosecuted under the same statute for having mutilated his business book and records. This was a clear statutory exception to the protection given under the common law maxim "nemo tenetur seipsum accusare". In his judgment, Lord Campbell C.J. said, at p. 59:
Finally, the defendant's counsel relies upon the great maxim of English law "nemo tenetur se ipsum accusare." So undoubtedly says the common law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself; that is, that he must answer questions by answering which he may be criminated. This Act of Parliament, 12 & 13 Vict. c. 106, creates felonies and misdemeanors, and compels the bankrupt to answer questions which may shew that he has been guilty of some of those felonies or misdemeanors. The maxim of the common law therefore has been overruled by the Legislature, and the defendant has been actually compelled to give and has given answers, shewing that he is guilty of the misdemeanor with which he is charged. The accusation of himself was an accomplished fact, and at the trial he was not called upon to accuse himself.
It is immediately after having said this, that his Lordship added the passage later quoted by Johnson J.A.,
The maxim relied upon applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given.
48. Of no little importance when considering the meaning of those words, are those immediately following:
If the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it.
49. Therefore, the reference by Lord Campbell C.J. to the time the maxim applies, is in relation to the legality of compelling the answer. It has, with respect, nothing to do with, and is not an answer, let alone the best answer, to the question phrased by Johnson J.A., i.e., whether admitting the evidence in the Brown case in the way it was being done then amounts to calling the accused as a Crown witness without allowing him or her the right of refusing to testify.
50. In any event, whatever may have been the ultimate ratio decidendi of the decision of this Court in R. v. Brown (No. 2), supra, that decision can be distinguished from the present case on many grounds. First, Brown was rendered prior to the coming into force of the Charter and the new right which it sets forth in s. 13 . Secondly, it is difficult to ascertain to what extent John