R. v. Kuldip [1990] 3 S.C.R. 618: Self-incrimination - Retrial - Cross-examination of accused at a new trial on his testimony given at a previous trial for purpose of impeaching his credibility

Present: Dickson C.J. and Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law - Charter of Rights - Self-incrimination - Retrial - Cross-examination of accused at a new trial on his testimony given at a previous trial for purpose of impeaching his credibility - Whether cross-examination infringed s. 13 of the Canadian Charter of Rights and Freedoms.

Evidence - Cross-examination - Self-incrimination - Retrial - Cross-examination of accused at a new trial on his testimony given at a previous trial for purpose of impeaching his credibility - Whether cross-examination infringed s. 13 of the Canadian Charter of Rights and Freedoms or s. 5(2) of the Canada Evidence Act.

The respondent was convicted of failing to remain at the scene of an accident with intent to escape civil or criminal liability, contrary to s. 233(2) of the Criminal Code. A Summary Conviction Appeal Court allowed his appeal and ordered a new trial. During the course of the second trial, the Crown sought to impeach the respondent's credibility by cross-examining him on apparent inconsistencies with the testimony which he had given at his first trial. He was again convicted of the offence and an appeal from that conviction was dismissed by the Summary Conviction Appeal Court. The Court of Appeal allowed the appeal from that decision, quashed the conviction and entered a verdict of acquittal on the grounds that the cross-examination of the respondent, using his testimony at his first trial to impeach his credibility at his second trial, violated s. 13 of the Canadian Charter of Rights and Freedoms.

The constitutional questions stated in this Court were: whether the cross-examination of an accused at a new trial on testimony given at a previous trial on the same charge for any purpose infringes s. 13 of the Charter; and, if so, whether such cross-examination is justified on the basis of s. 1 of the Charter.

Held (Wilson, La Forest and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Lamer C.J. and Gonthier and McLachlin JJ.: The cross-examination of the respondent at his second trial on testimony given by him at a previous trial on the same information was clearly for the purpose of undermining his credibility and, therefore, his s. 13 rights were not violated. It is appropriate to distinguish between a cross-examination made for the purpose of impeaching credibility and one made to "incriminate" the accused, that is, to establish guilt. Using a prior inconsistent statement from a former proceeding in order to impugn the credibility of an accused does not incriminate that person. The previous statement is not tendered as evidence to establish the proof of its contents but, rather, is tendered for the purpose of unveiling a contradiction between what the accused is saying now and what he has said on a previous occasion. An accused has the right to remain silent during his trial. If, however, an accused chooses to take the stand, that accused is implicitly vouching for his credibility. Such an accused, like any other witness, has therefore opened the door to having the trustworthiness of his evidence challenged. An interpretation of s. 13 which insulates an accused from having previous inconsistent statements put to him on cross-examination for the sole purpose of challenging credibility would "stack the deck" too highly in favour of the accused.

Section 5(2) of the Canada Evidence Act expressly allows the witness to make an objection to a question where the answer may tend to criminate the witness. The witness is guaranteed that, in exchange for being compelled to answer such a question, the answer will not be used to criminate the witness in a subsequent proceeding. A further guarantee that such answer will not be used in cross-examination to challenge the witness's credibility at a later proceeding would extend beyond the purpose of s. 5(2). Section 5 does not prohibit the Crown from ever using the privileged testimony in cross-examining the accused at a later proceeding but, rather, only prevents the Crown from using the testimony to incriminate the accused.

Section 5(2) of the Act and s. 13 of the Charter offer virtually identical protection. Neither prevents the Crown from using the testimony in cross-examination at the later proceeding for the purpose of determining the witness's credibility. The difference between these sections is that s. 5(2) requires an objection at the first proceedings while s. 13 does not.

A constitutional question is to be stated only where doubt as to the constitutional validity, applicability or operability of a statute or regulation is raised. It was not necessary to answer the constitutional questions stated here because the case at bar arose out of the Crown's actions in cross-examining the accused and not out of any question as to the constitutionality of a legislative provision.

Per Wilson, La Forest and L'Heureux-Dubé JJ. (dissenting): The appeal should be dismissed for the reasons given by the Court of Appeal.

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