The Right to Silence: Part 2

Written on Behalf of Affleck & Barrison LLP

In a previous blog post, we wrote about the right to silence enshrined for all Canadians in the Charter of Rights and Freedoms. Another important component to the right to silence is the right against self-incrimination. The Charter also protects witnesses against self-incrimination. Under section 13, witnesses may not have any incriminating evidence they give as testimony used against them in separate proceedings. It is important to be aware that although it serves a similar purpose, the protection in section 13 is different from the Fifth Amendment to the United States Constitution, which allows a person to refuse to testify.

Similarly, under section 11 of the Charter, an accused person cannot be forced to testify at his or her own trial. However, when an accused person freely chooses to take the witness box and testify, there is no further right to silence. There is likewise no general restriction on which types of questions are permissible. An accused person who voluntarily testifies is not compelled to testify and is therefore not protected by section 13. However, an accused is still protected by section 13 in the sense that any incriminating evidence they gave in a prior proceeding cannot be used against them in the criminal trial. Finally, prior inconsistent testimony can be used in a criminal trial to impeach the credibility of an accused person.

A special right to silence also used to exist for spouses in Canada. It was commonly referred to as the rule of spousal incompetency or spousal immunity and it meant that a person could not be compelled to testify against his or her legally married spouse. There were a few exceptions, for example in case of sex offences or where the victims were children. However, in 2015, the Harper government enacted legislation entitled the Victims Bill of Rights Act. The Act amended the Canada Evidence Act to remove the spousal immunity protection – a common-law tradition that goes back hundreds of years.

If you have questions about your right to silence and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.