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• Introduction
• The Canadian Provisions
• The Interests The Privilege Protects
• Conclusions

3 Retention or Abrogation

INTRODUCTION

98 IN THIS CHAPTER, we consider whether abrogation of the privilege, and its replacement with a statutory immunity, serves the interests behind the privilege which have been identified in the preceding chapter. Of the four jurisdictions referred to in this paper – United Kingdom, United States, Australia and Canada – Canada is the only country which has abrogated the privilege. The other jurisdictions, like New Zealand, have made piecemeal encroachments (either by case law or legislation) on the privilege in particular circumstances. Australia has recently enacted legislation which provides a certificate of immunity process for witnesses in federal court proceedings. A witness who makes self-incriminating disclosures is in return given a certificate of immunity from use and derivative use of the disclosures in other court proceedings. However, the common law privilege has been retained alongside that process. In chapter 15, we consider this, the most recent legislation of a comprehensive nature concerning the privilege, comparing it with the various proposals made throughout the paper.

THE CANADIAN PROVISIONS

99 Prior to abrogation in 1893, the common law privilege, including the privileges against liability to a civil penalty and forfeiture, applied in Canada. The oath of the witness, that he or she believed that the answer might be self-incriminating, was necessary for a claim of privilege to be upheld by the courts (Ellis v Power (1882) 6 SCR 1, 7). Co-existing with the penalty privilege, was case law to the effect that, in civil cases, the witness could not refuse to answer a question on the basis that the answer would tend to show that he or she owed a debt, or would otherwise be exposed to a civil action.[23] It was unclear whether the common law privilege applied to the discovery and production of documents. Furthermore, the privilege appears to have been restricted to testimony in proceedings, rather than applying in investigative contexts or in response to the exercise of statutory powers to demand information. As discussed in chapter 12, the privilege applies in those contexts in New Zealand, unless removed by legislation.

100 In 1893, the Canada Evidence Act was amended to abolish the common law privilege of a witness to refuse to answer self-incriminating questions in criminal and civil proceedings (despite the fact that there was probably no privilege in Canada in civil proceedings: Sopinka, 737). The intention appears to have been to abrogate the privilege completely, even though the possibility of the privilege being claimed in investigative contexts was not explicitly closed off.

101 In what is now s 5(1) of the Canada Evidence Act 1985, the privilege has been replaced with a limited form of use immunity which is restricted to oral testimony in criminal proceedings by individuals. The immunity does not extend to documentary evidence or to bodies corporate and other artificially created legal personalities. The immunity does not provide the witness with protection from the use of the self-incriminating information in civil, as distinct from criminal, proceedings. Therefore, there is no protection from liability to a civil penalty. Nor does the section contain a use fruits immunity which prevents the admissibility in other proceedings of evidence discovered as a result of the self-incriminating disclosures made.

102 Section 5(1) provides that “No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him . . .”. Section 5(2) says:

Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him . . . , 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.

103 There is no obligation on the court to inform the witness of the immunity, even if the witness is unrepresented (Stuart, Charter Justice in Canadian Criminal Law (Thomson Professional Publishing, Canada, 1991), 89.

104 Section 13 of the Canadian Charter of Rights and Freedoms (which was enacted as an appendix to the Constitution Act 1982) offers broader protection than, but co-exists with, s 5(2). It says:

A witness who testified 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.

105 Section 13 has been described as follows by Justice McIntyre in the Supreme Court of Canada decision Dubois v The Queen (1985) 22 CCC (3d) 513:

Section 13 of the Charter provides a much wider protection. In the clearest terms it gives the right to a witness who testifies in any proceeding not to have any incriminating evidence so given used to incriminate him in any other proceedings. This is a protection going far beyond that accorded by s 5(2) of the Canada Evidence Act. It does not depend on any objection made by the witness giving the evidence. It is applicable and effective without invocation and even where the witness in question is unaware of his rights. It is not limited to a question in respect of which a witness would have been entitled to refuse to answer at common law and its prohibition against the use of incriminating evidence is not limited to criminal proceedings. It confers a right against incrimination by the use of evidence given in one proceedings in any other proceedings.

106 In addition to s 13, s 11(c) of the Charter upholds the right of a person “not to be compelled to be a witness in proceedings against that person in respect of the offence.” This is the right of silence at trial. On occasion, s 7 of the Charter has been interpreted to supplement the safeguards contained in s 5 of the Canada Evidence Act and ss 11 and 13 of the Charter. Section 7 provides:

Everyone has the 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.

107 Although there have been conflicting decisions, s 7 has been relied upon to

• grant a right of silence before trial, despite the limited scope of s 11(c) (R v Herbert (1991) 57 CCC (3d) 1 (SCC)), and
• provide a use fruits immunity for anyone compelled to testify, in addition to that provided by s 13 (BC Securities Commission v Branch (1995) 123 DLR (4th) 462 (SCC)).

108 It seems that s 7 cannot be relied upon to provide a residual right to remain silent extending beyond s 11(c) to non-penal cases (Belhumeur v Comite de Discipline du Barreau du Quebec (1988) 54 DLR (4th) 105). Nor is there any residual right against self-incrimination that would protect a defendant in a civil action from discovery proceedings, pending the determination of criminal proceedings arising out of the same facts (Seaway Trust Co et al v Kilderkin Investments Ltd et al and two other actions (1986) 29 DLR (4th) 456 (HCJ)).

109 The advantages of the Canadian approach, or a similar approach based on complete abrogation and the provision of more extensive immunities, might be seen to include the following:

• Simplicity and consistency, in contrast to New Zealand’s piecemeal approach to the privilege (illustrated in Part III of this paper). The latter approach includes preservation, partial or total removal, or legislative silence, in the various contexts in which legislation imposes statutory powers to compel self-incriminating information from witnesses. In one provision, the Canadian approach addresses the different contexts in which the privilege might have otherwise arisen.
• Relevant information is available to enable officials to carry out their statutory obligations and for courts to decide cases based on all the relevant evidence.

110 The claims of simplicity and consistency can be overstated. As the above discussion of Canadian case law illustrates, the three provisions in the Charter impacting on the privilege, and their co-existence with s 5 of the Canada Evidence Act, leave potential for a variety of different interpretations. For example, in the Canadian case law, there have been differing views on the meaning of “other proceedings”: see Knutson v Saskatchewan Registered Nurses’ Association (1990) 75 DLR (4th) 723. In that case, the Saskatchewan Court of Appeal said that the use of a transcript of evidence from a criminal trial, resulting in the conviction of a nurse for theft in disciplinary proceedings against that nurse, did not violate s 13. In addition, in contrast to Dubois, “other proceedings” was said to mean criminal proceedings.

111 Does the approach of abrogating the privilege and providing immunities in its stead protect the interests which the privilege currently safeguards, or should the privilege be retained? In the following discussion, the Commission suggests that the answer to those questions is that New Zealand should retain the privilege rather than follow Canada’s approach of abrogation and replacement with a limited statutory immunity. This is despite the realisation that not all the interests claimed for the privilege are persuasive, and those which are persuasive are not individually persuasive in every situation in which the privilege currently applies.

THE INTERESTS THE PRIVILEGE PROTECTS

The cruel trilemma

112 In chapter 2, the Commission concluded that the desire to avoid the cruel trilemma of self-incrimination, perjury and contempt is not in itself a convincing reason for the privilege’s existence. Therefore, it is unnecessary to consider whether the Canadian approach meets this objective.

Preference for an accusatorial system

113 The Canadian approach suggests that the privilege, as distinct from a statutory immunity preventing the use of self-incriminating information, is not a necessary component of an accusatorial justice system, in that Canada has an accusatorial system and has abrogated the privilege. However, as the discussion in chapter 2 illustrates, the privilege safeguards several worthwhile interests (eg, protecting the innocent and preventing unreliable admissions). Therefore, although the privilege may not be necessary in an accusatorial system, it is nevertheless desirable.

Prevention of inhumane treatment and abuses

114 The approach of abrogating the privilege and providing immunities in its stead does not prevent abuses at the time when a person is compelled to give self-incriminating information. It instead restricts the use of self-incriminating information once disclosures have been compelled. In comparison, the common law privilege forestalls abuses at the earlier as well as the later stages.

Fair State-individual balance

115 Complete abrogation does not allow individuals to be free from unwarranted intrusions by the State at the point when the self-incriminating information is compelled, although the use immunity provides some protection in proceedings at later points. Because the risk of self-incrimination is not a reason to refuse to answer questions, abrogating provisions make no distinction between unwarranted intrusions which should not be authorised in particular contexts and the legitimate exercise of statutory information-gathering powers. In addition, immunities cannot have a role in equalising the positions of the parties, or in fostering fairness prior to proceedings, which is the very point when the need for balance is arguably greatest.

Protection of human personality and individual privacy

116 Use immunities cannot protect privacy at the point when the self-incriminating information is sought, although they can limit subsequent use of the information.

Unreliability of self-deprecatory statements

117 The Canadian approach appears to be based, at least in part, on the assumption that providing witnesses with a use immunity will remove their fears and encourage them to make reliable disclosures. This feature of immunities can be overstated. At the investigative stage, immunities do not prevent unreliable self-incriminating disclosures arising from interrogative suggestibility, as distinct from deliberate lying. In addition, the Commission concluded in chapter 2 that the existence of the privilege is unlikely to encourage people to give truthful information, as distinct from deliberately lying to avoid detection, punishment or other untoward or feared consequences. The same can be said of immunities.

118 Furthermore, the Canadian use immunities do not (at least on their face) prevent the self-incriminating disclosures from being used to discover and admit other evidence against the person (ie, derivative evidence in proceedings). Even if the Canadian immunity is broadened to include a use fruits immunity, the witness might still be vulnerable to people using the information once it has been disclosed in open court. The fear of this happening may prevent many people from giving reliable information, even though an immunity is offered.

Protection of the innocent

119 As already noted, abrogation does not allow witnesses to remain silent. Instead, the focus is on limiting the extent to which compelled information can be used in other proceedings. Therefore, innocent people who wish to remain silent, because of some reason consistent with innocence (ie, fear, uncertainty, disability etc), must nevertheless give the information sought, with the attendant risk that they will be liable to criminal prosecution or the imposition of a civil penalty.

CONCLUSIONS

• New Zealand should not follow the Canadian approach of abrogating the privilege against self-incrimination, but should preserve the privilege.
• The Canadian approach suggests that the privilege is not a necessary component of an accusatorial justice system, in that Canada has an accusatorial system and has abrogated the privilege. However, the privilege is a desirable component of an accusatorial system.
• The approach of abrogating the privilege and providing a statutory immunity in its stead does not prevent questioning abuses at the time when self-incriminating information is compelled from a person.
• Abrogation and immunities in place of the privilege do not allow individuals to be free from unwarranted intrusions by the State at the point when the compelled disclosures are sought. No distinction is made between legitimate and unwarranted intrusions.
• At least on their face, the Canadian use immunities do not prevent the use of self-incriminating information as a springboard to obtain independent evidence against the witness.
• Even if the Canadian legislation contained an explicit use and use fruits immunity, protection equivalent to the privilege would not be provided. This is primarily because the witness might still be vulnerable to people using the self-incriminating information once it has been disclosed in open court.
• The privilege safeguards privacy in a way that the subsequent operation of immunities cannot. The privilege prevents the intrusion at the outset.
• Immunities cannot prevent or identify unreliable disclosures which are made as a result of pressure arising from questioning.
• It is doubtful that the privilege or immunities effectively prevent people from deliberately and calculatedly lying to avoid detection.