Section 12 of the Charter

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 13 of the Charter provides that a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.¹ However, in relation to this protection, anyone wishing to avail themselves of it should give serious consideration to the Supreme Court of Canada’s controversial decision in R. v. Nedelcu²

In R. v. Nedelcu the accused gave evidence on a civil discovery. His evidence related to the same accident that was later the subject matter of his criminal trial based on the circumstances of that accident. It apparently had come to the attention of the prosecutor in his criminal case that he had previously given evidence under oath at an earlier discovery and it was suggested to the prosecutor that his evidence at that time was different than the evidence he was giving at trial.

The evidence that he gave at the civil discovery was compelled in the sense that he was required to attend to provide evidence under oath. It would appear on its face that this previous testimony would be protected under section 13 of the Charter. It therefore should not be usable at the later criminal trial to incriminate him. But the court decided otherwise.

The court found that section 13 of the Charter provides that a witness who testifies in any later proceeding 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.

The court found that cross-examination on his previous testimony as to its inconsistencies with his testimony at his criminal trial was not for the purpose of incrimination but for the purpose of challenging his credibility. With respect, absent in the purported logic of the majority of the Supreme Court of Canada is that the cross-examination as to his lack of credibility was, in fact, to incriminate him. But the majority ruled otherwise. The evidence was admissible, the cross- examination on the prior testimony was effective, and he was convicted. As it turned out section 13 of the Charter was of no help to the accused. It appears the Supreme Court has punched a big hole in section 13’s protection “for any other proceedings.”

Most knowledgeable criminal defence counsel now probably warn their clients charged with a criminal offence that they ought not to rely on the alleged protections of section 13. At a minimum reliance on the protections purportedly available under section 13 is hazardous since the decision in Nedelcu.

Section 14 of the Charter provides that a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

The rights protected in sections 8 to 14 of the Charter are more specific. Each section refers to specific, identifiable constitutional protections. They serve as the foundation for Charter challenges to an alleged infringement of all the identified rights below.

1. 8. unreasonable search or seizure.

   9. arbitrary detention or imprisonment.

   10. to retain and instruct counsel without delay.

   11. to know the specific offence, one is alleged to have committed.

-to a trial within a reasonable time

-not to be compelled to testify against oneself.

-to be presumed innocent.

-to be entitled to reasonable bail.

-the right to a trial by jury if the penalty for the offence charged is at least fourteen years or life imprisonment.

-only acts or omissions recognized in law as punishable.

-protection from double jeopardy.

-if punishment varied since charge- entitled to lesser punishment.

1. 8. freedom from cruel and unusual treatment or punishment.

   9. freedom from incriminating evidence, except perjury or contradictory testimony.

   10. interpreter to help understand.

In contrast, the rights protected by section 7 are significantly broader in scope. It is hard to imagine constitutional rights more expansive than the overall right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As such, section 7 demands overall fairness to individuals. However, because these broad rights protect “individuals,” by logical extension they do not protect Corporations.

Sections 8 to 14 provide the specific, identifiable protections included in the overall umbrella of fairness offered by section 7. Section 7 protects all accused in virtually all circumstances, including those specifically referred to in sections 8 to 14 of the Charter.

The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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