Major J.
Major J. – The accused Jabarianha was charged with breaking, entering and possession of stolen property. At his trial, the accused called a witness who testified that he and another, but not the accused, were responsible for the crimes. That witness’s testimony was shielded by s. 13 of the Canadian Charter of Rights and Freedoms . Section 13 of the Charter protects a witness who testifies in any proceeding from having incriminating evidence given by him or her used to incriminate that witness in any other proceeding, except in a prosecution for perjury or for giving contradictory evidence.
Section 13 of the Charter potentially permits a witness to claim responsibility for a crime to absolve an accused, content in the knowledge that that witness would be immune from use of that confession by the Crown to establish the guilt of the witness in a subsequent prosecution. At issue in this appeal are the circumstances under which Crown counsel should be permitted to cross-examine a witness’s prior knowledge of the protection afforded by s. 13.
I. Facts
The accused had first met Richard Corkum, approximately two weeks before the break-in occurred. The accused testified that Corkum and his friend Stanley Gowan committed the break-in.
Two weeks after that meeting, Corkum telephoned the accused, ostensibly to ask him to join a car race, which he agreed to do, and subsequently the accused picked Corkum and Gowan up at Corkum’s house.
After some late-night driving escapades, the accused testified that Corkum and Gowan asked to be dropped off at a friend’s house. The accused agreed, and further agreed to park and wait for five minutes.
The accused testified that he was surprised to see Corkum return to the car with a 200-pound toolbox, which Corkum put on the back seat. The toolbox was stolen from a garage attached to the house Corkum and Gowan had visited. The accused testified that he objected and prevented the pair from putting certain other objects in the trunk of the car.
Meanwhile, the victim of the theft was awakened by a commotion in the garage from which the tools were stolen. He called the police, who arrived quickly.
The accused saw car lights approaching his car. Thinking it was the police, the accused said he panicked. He sped away without turning on his headlights and hit a parked car. The accused was arrested and charged with breaking, entering and possession of stolen property. Of the three individuals allegedly involved in the thefts, the accused was the only person to be prosecuted.
At his trial, the accused called Corkum, who corroborated the accused’s testimony that the accused was a dupe. Corkum testified: “I didn’t let him know. I guess you could say I sort of used him to do it”.
Crown counsel cross-examined Corkum’s knowledge of s. 13 of the Charter . During the cross-examination, the following exchange that is at the nub of the present appeal took place:
Q So, defence counsel told you it would be better if you didn’t talk to me?
A Yeah.
Q And you know that you can’t be prosecuted for this break and enter as a result of evidence you give in court?
A I didn’t know that.
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.
Koenigsberg J. found the accused guilty of breaking and entering, contrary to s. 348(1) (b) of the Criminal Code , R.S.C. 1985, c. C-46 .
In the course of her reasons, Koenigsberg J. referred to Corkum’s knowledge of s. 13 of the Charter :
Mr. Corkum, for instance, was completely unbelievable when he denied knowing he could not be prosecuted for the break and enter on the basis of confessing to it in the courtroom under oath.
B. British Columbia Court of Appeal (1999), 140 C.C.C. (3d) 242
At the British Columbia Court of Appeal, counsel for the accused argued that Corkum should not have been asked about his knowledge of s. 13 of the Charter and that the trial judge should not have used Corkum’s answer to the question to assess his credibility.
Finch J.A., for the court, dismissed the appeal. He held that where a witness might know of the protection afforded by s. 13 of the Charter , there would be a “nexus or logical connection between the state of his knowledge and his credibility” (para. 24). He thought that if the witness knew that his or her testimony would be protected by s. 13 of the Charter , such knowledge would tend to undermine the witness’s testimony. Similarly, Finch J.A. held if a witness was unaware of the protection afforded by s. 13 while testifying to a crime, the witness’s evidence would be “entitled to greater weight than evidence not against penal interest” (para. 25). He said the prejudicial effect of the witness’s response to the question would not outweigh its probative value.
Under what circumstances can the Crown cross-examine a witness’s knowledge of s. 13 of the Charter ? A subsidiary issue is the applicability of s. 686(1)(b)(iii), the Code’s curative proviso.
(1) Circumstances Under Which Crown Counsel may Cross-Examine a Witness’s Knowledge of s. 13 of the Charter
(1) Circumstances Under Which Crown Counsel may Cross-Examine a Witness’s Knowledge of s. 13 of the Charter
To be admissible, evidence must be relevant and not subject to an exclusionary rule of law or policy (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 23). Even where evidence is otherwise logically relevant, it may be excluded “if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability” (R. v. Mohan, [1994] 2 S.C.R. 9, at p. 21).
It is my opinion that the probative value of a witness’s knowledge of s. 13 of the Charter will generally be overborne by its prejudicial effect. Given that witnesses like other persons are presumed to know the law, an interrogation on this question is usually irrelevant while having the potential to cast doubt on the credibility and honesty of a witness. It follows that Crown counsel should rarely be permitted to cross-examine on a witness’s knowledge of s. 13.
To appreciate the prejudicial effect of a witness’s knowledge of s. 13, it is important to consider the limited protection afforded by the section. Section 13 of the Charter merely prohibits a witness’s incriminating evidence from being used to incriminate against that witness in other proceedings. Section 13 does not constitute any guarantee that a witness will be free of prosecution for the crime to which the witness confessed. The Crown can rely on other evidence to prosecute that witness.
As well, s. 13 does not prohibit the witness’s testimony from being introduced in subsequent proceedings in which he or she would be either a witness or the accused. While the self-incriminatory testimony cannot be used to establish guilt, the testimony can be used in subsequent proceedings to test the witness’s credibility including that of the accused should he or she testify (R. v. Kuldip, [1990] 3 S.C.R. 618, per Lamer C.J.).
Finch J.A. concluded that if the witness knew of the protection afforded by s. 13, such knowledge would undermine the witness’s testimony; however, in order to reach this conclusion, the trier of fact must be aware of the extent to which the witness thought he was protected. If the witness believed he had absolute immunity with no possibility of any negative consequences of his false testimony, such immunity might undermine the evidence. On the other hand, if the witness believed the protection to be slight, or if the witness was unaware of any protection, the evidence might, as Finch J.A. stated at para. 25, be “entitled to greater weight than evidence not against penal interest”. Without specific information as to the state of the witness’s knowledge, a bald question to the witness about his or her awareness of the protection of s. 13 would likely be more prejudicial than probative.
Given that the protection of s. 13 is limited, and the witness’s knowledge of the protection may be incorrect, the jury might wonder, and perhaps need instruction, about the inferences it should draw from a witness’s potentially imperfect knowledge of s. 13 of the Charter , as well as the extent to which a witness felt immune from prosecution. Such a process could shift the jury’s focus from the accused’s innocence or guilt to the witness’s understanding of the consequences of testifying under the limited protection of the Charter . There is also a real risk that a jury would give improper emphasis to the application of the limited protection of s. 13 of the Charter : see R. v. Swick (1997), 35 O.R. (3d) 472 (C.A.), per Rosenberg J.A., at p. 478. These types of questions before a judge and jury have serious potential to be prejudicial. These types of questions before a judge sitting alone, as was the case here, are less likely to be as harmful, but in either case should be avoided.
In addition, probing the witness on cross-examination as to his or her knowledge of the protection of s. 13 may encroach on privileged information. The potential prejudicial effect of such a cross-examination was identified in Swick, supra, at p. 478:
To fully and fairly canvass [a witness’s knowledge of s. 13 of the Charter ] it probably would have been necessary to inquire into solicitor-and-client discussions between [the accused] and his counsel and [the witness] and his counsel.
Rosenberg J.A. concluded:
This would be highly prejudicial to the trial process and the administration of criminal justice.
If a witness claimed solicitor-client privilege as a result of an inquiry into the witness’s knowledge of s. 13 of the Charter , the trial judge would be left with the vexing question of what implications the jury might draw from the witness’s unexplored potential knowledge.
It is important to remember that if a witness’s confession is truthful, he or she will not be absolved from blame but still faces the prospect of being charged; if his or her confession is untruthful, the witness creates the risk of further inquiry and prosecution.
In the circumstances of the present appeal, other penal consequences faced the confessing witness, Corkum. After Jabarianha’s trial, Crown counsel could have brought charges against Corkum. It could have called Jabarianha to testify that Corkum was responsible for the offences. Had he been unwilling to testify, Jabarianha could have been declared a hostile witness and cross-examined. If Jabarianha’s evidence were untruthful, he, too, would face the risk of perjury, of contempt of court or of giving contradictory evidence contrary to s. 136 of the Code. Yet another possibility is that in the prosecution of Corkum, the Crown’s case might be so strong that Corkum would feel it was necessary to give evidence in which case he could be cross-examined on his testimony and disbelieved; he was only a liar, not a thief. On the other hand if his evidence were accepted, Corkum, as stated, could face a charge of perjury or a charge of giving contradictory evidence under s. 136 of the Code.
Generally, the only reason a witness’s knowledge of s. 13 of the Charter is potentially relevant is the assumption that a witness who knows his or her self-incriminating testimony is protected by the Charter will be more likely to lie. Generally, this assumption is wrong. A witness’s knowledge of the law is not co-extensive with a tendency to lie. In R. v. Murray (1973), 14 C.C.C. (2d) 467 (Ont. C.A.), Dubin J.A. (as he then was, dissenting on other grounds) made that observation in the context of the protection afforded by s. 5(2) of the Canada Evidence Act which offers “virtually identical” protection to s. 13 of the Charter (Kuldip, supra, at p. 642). He said (at p. 470):
With respect to the evidence of Martin, [the trial judge] observed that Martin testified only after having taken the protection of the Canada Evidence Act . I infer from that that the learned trial Judge concluded that in doing so the credibility of Martin was thereby impaired. Approaching it in that way, in my opinion, he erred. Martin had a statutory right to give evidence in the manner that he did, and that fact standing by itself should not have affected his credibility.
Without other evidence of a motive for testifying falsely, evidence of a witness’s knowledge of s. 13 of the Charter should not affect his or her credibility. Thus, such evidence, standing alone, has little or no probative value. See Swick, supra, at p. 477. In this regard, I respectfully disagree with the finding of Finch J.A. in the Court of Appeal that without information as to the witness’s knowledge of s. 13, the trier of fact could form an unrealistic view of the worth of the evidence. On the contrary, for the reasons discussed above, evidence as to a witness’s knowledge of s. 13 is more apt to cloud the assessment of the evidence than to clarify it.
In rare circumstances, cross-examination of a witness’s knowledge of s. 13 of the Charter may be permitted. If the Crown provided some evidence of a plot to lie or to obtain favours, the probative value of a witness’s knowledge of s. 13 of the Charter could outweigh its prejudicial effect whereas evidence of mere friendship between the accused and witness will not (see Swick, supra, at p. 477). With evidence of a plot to lie or to obtain some benefit, the scale might tip in favour of the possibility that the witness’s knowledge of s. 13 of the Charter would affect the truthfulness of that testimony. That determination would generally lie in the discretion of the trial judge.
In the present appeal there was no independent evidence tendered as to a motive for Corkum to lie or obtain favours. As such, the prejudicial effects of the testimony, discussed above, outweigh its low probative value, and Corkum should not have been cross-examined as to his knowledge of s. 13 of the Charter .
(2) Applicability of Section 686(1)(b)(iii), the Code’s Curative Proviso
(2) Applicability of Section 686(1)(b)(iii), the Code’s Curative Proviso
Although Crown counsel should not have probed the witness’s knowledge of s. 13 of the Charter , the trial judge did not disbelieve Corkum only on the basis that he knew s. 13 of the Charter would protect his testimony. Rather, the trial judge’s reasons demonstrate that she simply did not believe Corkum’s testimony because his demeanour demonstrated signs of untruthfulness. The trial judge stated:
Both Mr. Corkum and Mr. Jabarianha were less than believable as they gave much of their evidence. Each exhibited classic signs of discomfort when challenged on points and then would elaborate the details. Each was evasive at times or his eyes shifted around. Thus in certain points of the story each by the story and his demeanour, displayed signs of untruthfulness.
Mr. Corkum, for instance, was completely unbelievable when he denied knowing he could not be prosecuted for the break and enter on the basis of confessing to it in the courtroom under oath. [Emphasis added.]
In the paragraph above, the words “for instance” demonstrate that the trial judge simply relied on Mr. Corkum’s demeanour and his story (and not his purported lack of knowledge of s. 13 of the Charter) when she stated that she did not believe Corkum’s testimony. Moreover, the trial judge referred to the witness’s demeanour in testifying to his knowledge of s. 13 of the Charter as only one of several examples where he appeared untruthful. I agree with Finch J.A.’s reasons (at para. 31):
The trial judge’s reference to Corkum’s evidence (at para. 31 of the reasons) comes in the middle of her discussion about the credibility of both the appellant and Corkum. Her disbelief of Corkum’s answer to the impugned question is cited as an example of the several instances in which Corkum’s demeanour betrayed the untrustworthiness of his evidence. I do not understand the learned trial judge to say that she considered Corkum’s evidence unbelievable because he denied knowing his s. 13 rights. Rather, I understand her to say that his demeanour in giving that answer, amongst others, persuaded her that he was an untrustworthy witness whose evidence was not to be believed. In my view, it was entirely within the trial judge’s proper function to assess Corkum’s credibility in the way she did.
Although it was an error of law to permit the cross-examination to occur, the trial judge’s minimal reliance on the witness’s answer as described above demonstrates that no substantial wrong or miscarriage of justice occurred and this is a proper case to apply s. 686(1)(b)(iii) the curative proviso in the Code (see R. v. Deane, [2001] 1 S.C.R. 279, 2001 SCC 5; R. v. Simard, [2000] 2 S.C.R. 911, 2000 SCC 61; R. v. Lawes, [1997] 3 S.C.R. 694).
The appeal is dismissed.
Cases cited
- 140 C.C.C. (3d) 242 140 C.C.C. (3d) 242 ¶ 13
- R. v. Mohan 23063-1994-05-05 p 21 ¶ 17
- R. v. Kuldip 20803-1990-12-07 p. 642 ¶ 20, ¶ 26
- R. v. Swick 35 O.R. (3d) 472 p. 478, p. 477 ¶ 22, ¶ 23, ¶ 26, ¶ 27
- R. v. Murray 14 C.C.C. (2d) 467 ¶ 26
- R. v. Deane 2001 SCC 5 ¶ 31
- R. v. Simard 2000 SCC 61 ¶ 31
- R. v. Lawes 25556-1997-10-10 ¶ 31