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Charter - s.13 Self-Incrimination

. R. v. Yang

In R. v. Yang (Ont CA, 2023) the Court of Appeal allowed an appeal on grounds that a non-party witness intentionally waited until trial - where they would have the protection of Charter s.13 ['Self-incrimination'] and s.5 of the Canada Evidence Act ["Incriminating questions"] - before revealing that he had exonerating, though potentially self-incriminating, testimony:
[12] Mr. Yang argues that the trial judge’s reasoning – that Mr. Xu’s failure to clear Mr. Yang by going to the police and admitting ownership is inconsistent with his claim that he was “very happy to come to court to prove that it belonged to me” – is based on a misunderstanding of the law (the “failure to admit error”). Had Mr. Xu told the police before trial that he owned the marijuana he would have been self-incriminating and could have been charged, given the belief by the police that this marijuana was possessed for the purpose of trafficking. But if he waited until trial to give that explanation, he would be protected by s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, and s. 13 of the Charter from having his testimony used against him, either on this charge or for any charges arising from breach of the terms of his marijuana licence as a result of this incident.


[14] ... With respect to the “failure to admit error”, Mr. Xu’s decision to await trial before attempting to clear Mr. Yang would be a prudent and sensible choice, given the state of the law. By waiting, he could protect Mr. Yang without imperilling himself. There is therefore no inconsistency between refraining from self‑incriminating before trial and being happy to be able to take responsibility during trial when it is safe to do so. We are persuaded that the trial judge engaged in an illogical or irrational line of reasoning in support of the verdict, given the state of the law. Indeed, this reasoning error by the trial judge is on the periphery of an error of law since it depended on an oversight by the trial judge relating to the relative legal jeopardy Mr. Xu would be in by sharing his account before or during his testimony.
. Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]

In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court considers the Charter s.13 ['self-incrimination'] protection in the context of contempt enforcement of a civil Mareva injunction (which compels disclosure of evidence). Charter s.13 reads:
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.


Issue 2: Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion because a civil contempt motion is not “other proceedings” within the meaning of s. 13 of the Charter?

[35] The motion judge found that the contempt motion was brought within the civil proceedings and is not a separate proceeding. On this basis he found that s. 13 of the Charter does not apply to preclude use of information obtained in the civil proceeding in the prosecution of the contempt motion. The motion judge’s analysis leading to this conclusion was as follows:
a. Section 13 of the Charter applies to a civil contempt motion. It provides: “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 proceeding, except in a prosecution for perjury or for the giving of contradictory evidence.”[27]

b. An accused’s testimony on a first trial may not be placed into evidence as part of the Crown’s case in a subsequent re-trial: the subsequent re-trial is an “other proceeding” within the meaning of Charter, s. 13.[28] However, this line of authority is distinguishable from the case at bar: the contempt motion is not a re-trial, but rather is an integral part of the ongoing civil proceedings.

c. Reliance on prior evidence in a civil proceeding in respect to current allegations of contempt has been both authorized and found to be essential to the due enforcement of court orders.[29]
[36] The motion judge then concluded as follows (Decision, paras. 77 and 78):
The Saad Mareva Order prominently states that if Dr. Saad disobeys the order he may be held in contempt of court, and that any other person who knows of the order and does anything which helps or permits Dr. Saad to breach the terms of the order may also be held to be in contempt of court. The Saad Mareva Order required Dr. Saad to provide to the plaintiffs within 10 days a sworn statement detailing the nature, value and location of his assets worldwide and to submit to examination under oath within 10 days of the delivery of the sworn statement. The purpose of the term requiring a sworn statement of assets is to facilitate enforcement of the order restraining any dealings with Dr. Saad’s worldwide assets. The purpose of the term providing for examination of Dr. Saad under the Saad Mareva Order is to allow the plaintiffs to test the accuracy and truthfulness of the sworn statement of assets and to facilitate actions to prevent assets that they claim were fraudulently taken from being dissipated.

When I consider the purpose of a Mareva order such as the Saad Mareva Order, it is clear that the sanction of an order for contempt of court stated on the face of the Commercial List Model Order for violating the Mareva order by making a false declaration of assets or dissipating assets is an integral part of a civil proceeding, one that allows the court to enforce its own process. The fact that a contempt motion is quasi-criminal and that the remedy for contempt may include punishment through a fine, or even imprisonment, does not, in my view, make a contempt motion made in a civil proceeding for the alleged violation of an order made in that proceeding “other proceedings” under s. 13 of the Charter. In support of this conclusion, I rely on McClure, which I regard as correctly decided, and the authorities which have followed it.[30]
[37] I agree with this reasoning and this conclusion. I would add one point. It is good practice to include a warning in a Mareva order respecting the potential consequences of breaching the order. However, it is not necessary: in our society, governed by the Rule of Law, everyone is required to obey a court order, and consequences (including a finding of contempt) may follow if the order is breached. I do not take the motion judge to have concluded otherwise: his reference to the warning in the Mareva order is part of his conclusion that the order, its terms and its enforcement, are all part of the same proceeding, a conclusion with which I agree.

[38] The contempt motion is not an “other proceeding” from the civil proceeding in which it has brought within the meaning of s. 13 of the Charter. I would not give effect to this ground of appeal.


[46] In respect to further requests for production of documents, the motion judge considered a line of authorities[33] to the effect that documents compelled prior to criminal proceedings, for other lawful purposes, are not inadmissible in subsequent criminal proceedings. The motion judge then considered R. v. Jarvis, upon which the appellants relied, in support of the proposition that when an investigation shifts from administrative to criminal in nature, administrative powers may no longer be used to compel a taxpayer to provide documents and information, in violation of their right to remain silent.[34] The motion judge then concluded as follows (the “Production Ruling”):
The Court in Jarvis did not provide for an exception to the taxpayer’s Charter rights where the documents required from the taxpayer exist independently of any state compulsion.

I do not agree that Branch[35] is authority for the proposition that where documents exist independently of any state compulsion, the principle against self-incrimination under the Charter does not apply. The plaintiffs have brought a contempt of court motion seeking remedies against Dr. Saad and Mohammed. The plaintiffs having done so, the Charter rights of Dr. Saad and Mohammed are engaged. The plaintiffs cannot conscript Dr. Saad and Mohammed to assist in the prosecution of the contempt motion against them by compelling them to assemble and produce documents which the plaintiffs reserve the right to use to convict them of contempt of court.

This conclusion applies to both Dr. Saad and Mohammed. Although the documents sought from Mohammed are sought under the Mohammed Mareva Order and the contempt motion against Mohammed is brought in respect of the Saad Mareva Order, the plaintiffs reserve the right to use any documents produced by Mohammed to aid in the prosecution of the contempt motion against him. In these circumstances, the principle against self-incrimination under the Charter is engaged in respect of Mohammed and Dr. Saad.

Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion.
I agree with the motion judge’s analysis except for one core point: an allegation of contempt does not transform proceedings from civil to criminal unless the court also finds that the contempt allegation is predominately penal rather coercive. If the contempt motion is predominantly coercive, then the nature of the proceedings has not been “transformed” to criminal.

[47] The problem with the Admissibility Ruling and the Production Ruling are their apparent inconsistency, in principle, with the motion judge’s decision respecting Issues 1 and 2. It is clear that the motion judge wrestled with this problem, and he correctly concluded that the weight of authority supported drawing a distinction between compelled evidence provided prior to an allegation of contempt and compelled evidence provided after an allegation of contempt. This context does matter, but it does not determine the issue.

[48] First, the motion judge is correct in finding that the Mareva order continues in force and the appellants’ obligations thereunder likewise continue. On the basis of the Mareva order, undertakings must be answered and information and documents provided.

[49] Second, until the respondents seek to rely on information and documents compelled from the appellants in support of the contempt motion, the court need not rule on the admissibility of that evidence.

[50] Third, if the respondents do seek to rely on information and documents compelled from the appellants and provided by them after commencement of the contempt motion, at that time the court should assess the “predominant purpose” of the contempt motion, by analogy to R. v. Jarvis.[36] If the court finds that the predominant purpose of the contempt motion is “coercive” rather than “penal” then the evidence may be compelled and will not be inadmissible because it is conscriptive.[37] If the court finds that the predominant purpose of the contempt motion is penal, then the moving party may pursue alternative approaches to obtain evidence for the contempt motion.


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Last modified: 07-08-23
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