R. v. Henry (D.B.) (2005), 219 B.C.A.C. 1 (SCC);
361 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2005] B.C.A.C. TBEd. DE.037
David Brock Henry (appellant) v. Her Majesty the Queen (respondent)
Barry Wayne Riley (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Canada and Attorney General of Ontario (interveners)
(29952; 29953; 2005 SCC 76; 2005 CSC 76)
Indexed As: R. v. Henry (D.B.) et al.
Supreme Court of Canada
McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
December 15, 2005.
Summary:
In their retrial on a charge of first degree murder the accused told a different story under oath than they had five years earlier at their first trial on the same charge. In both trials, the accused chose to testify (i.e., they were not compelled). The accused were cross-examined at the subsequent trial on their prior inconsistent statements. The accused were again convicted of first degree murder. The accused appealed, claiming that this use of prior statements violated their constitutional right against self-incrimination guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms.
The British Columbia Court of Appeal, Hall, J.A., dissenting, in a decision reported 186 B.C.A.C. 106; 306 W.A.C. 106; 2003 BCCA 476, dismissed both appeals. The accused appealed again.
The Supreme Court of Canada dismissed the appeals. The court reviewed the jurisprudence respecting s. 13 and clarified the role and function of that provision of the Charter. The court overruled its 1986 decision in R. v. Mannion, holding that s. 13 of the Charter was not available to an accused who chose to testify at his or her retrial on the same indictment. Further, insofar as the court in R. v. Kuldip (1990) felt compelled by Mannion to narrow the purpose of cross-examination of an accused on inconsistent testimony he volunteered at his first trial to the impeachment of credibility, and to deny the probative effect of the answers on the issue of guilt or innocence, the court’s decision to no longer follow Mannion rendered such restrictions no longer operative. The court stated further that even though s. 13 of the Charter talked of precluding the use of prior evidence “to incriminate that witness”, and thus implicitly left the door open to its use for purposes other than incrimination such as impeachment of credibility, the court concluded that the prior “compelled” evidence should be treated as inadmissible in evidence against the accused, even for the ostensible purpose of challenging his or her credibility, and be restricted, in the words of s. 13 itself, to a prosecution for perjury or for the giving of contradictory evidence.
Civil Rights – Topic 4301
Protection against self-incrimination – General – The Supreme Court of Canada overruled its 1986 decision in R. v. Mannion, holding that notwithstanding the strong court which decided that case and the cases that followed it, the court should hold that s. 13 of the Charter was not available to an accused who chose to testify at his or her retrial on the same indictment – The court stated that its practice was against departing from its precedents unless there were compelling reasons to do so, however, while rare, some departures did occur – The court cautioned that it would be particularly careful before reversing a precedent where the effect was to diminish Charter protection – However, the court stated that there were compelling reasons for declining to follow Mannion – Further, insofar as the court in R. v. Kuldip (1990), felt compelled by Mannion to narrow the purpose of cross-examination of an accused on inconsistent testimony he volunteered at his first trial to the impeachment of credibility, and to deny the probative effect of the answers on the issue of guilt or innocence, the decision by the court to no longer follow Mannion rendered such restrictions no longer operative – See paragraphs 44 to 48.
Civil Rights – Topic 4301
Protection against self-incrimination – General – In their retrial on a charge of first degree murder the accused told a different story under oath than they had five years earlier at their first trial on the same charge – The accused were cross-examined at the subsequent trial on their prior inconsistent statements – The accused volunteered their testimony at both trials (i.e., they were not “compelled” to testify) – The accused were again convicted of first degree murder – The accused appealed, claiming that this use of prior statements violated their constitutional right against self-incrimination guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms – The Supreme Court of Canada affirmed that the appeals should be dismissed – The court traced the jurisprudence respecting s. 13 and clarified the role and function of that provision of the Charter – The court held that s. 13 was not available to an accused who chose to testify at his or her retrial on the same indictment – Accused persons who testified at their first trial and then volunteered inconsistent testimony at the retrial on the same charge were in no need of protection “from being indirectly compelled to incriminate themselves” in any relevant sense of the word – See paragraphs 1 to 61.
Civil Rights – Topic 4301
Protection against self-incrimination – General – The Supreme Court of Canada stated, per Binnie, J., that … “even though s. 13 [of the Charter] talks of precluding the use of prior evidence ‘to incriminate that witness’, and thus implicitly leaves the door open to its use for purposes other than incrimination such as impeachment of credibility (as Kuldip accepted [SCC 1990]), experience has demonstrated the difficulty in practice of working with that distinction. If, as [the Supreme Court in 2002 in] Noël held, and as Arthur Martin, J.A., observed in Kuldip, the distinction is unrealistic in the context of s. 5(2) of the Canada Evidence Act, it must equally be unrealistic in the context of s. 13 of the Charter. Accordingly, by parity of reasoning, I conclude that the prior
compelled
evidence should, under s. 13 as under s. 5(2), be treated as inadmissible in evidence against the accused, even for the ostensible purpose of challenging his or her credibility, and be restricted (in the words of s. 13 itself) to ‘a prosecution for perjury or for the giving of contradictory evidence'” – See paragraph 50.
Civil Rights – Topic 4310
Protection against self-incrimination – General – Purpose and scope of rule – [See all
Civil Rights – Topic 4301
].
Civil Rights – Topic 4424
Protection against self incrimination – Proceedings to which protection applies – Second trial, same charge – [See all
Civil Rights – Topic 4301
].
Civil Rights – Topic 4447
Protection against self-incrimination – Proceedings to which protection does not apply – Second trial, same charge – [See all
Civil Rights – Topic 4301
].
Civil Rights – Topic 4461
Protection against self-incrimination – Use of incriminating evidence in other proceedings – General – [See all
Civil Rights – Topic 4301
].
Courts – Topic 10
Stare decisis – Authority of judicial decisions – General principles – What constitutes obiter dictum – The Supreme Court of Canada discussed the significance of the obiter dicta in R. v. Noël, a 1990 case from the Supreme Court dealing with the protection against self-incrimination (i.e., the use of testimony in other proceedings and s. 13 of the Charter) – The court generally discussed what constituted obiter dicta and the weight to be given to obiter dicta in Supreme Court judgments – See paragraphs 52 to 59.
Courts – Topic 15
Stare decisis – Authority of judicial decisions – General principles – Stare decisis v. civil rights – [See first
Civil Rights – Topic 4301
].
Courts – Topic 76
Stare decisis – Authority of judicial decisions – Prior decisions of same court – Respecting related matter – [See
Courts – Topic 10
].
Courts – Topic 79
Stare decisis – Authority of judicial decisions – Prior decisions of same court – Supreme Court of Canada – [See first
Civil Rights – Topic 4301
and
Courts – Topic 10
].
Criminal Law – Topic 50
Protection against self-incrimination – General principles – [See all
Civil Rights – Topic 4301
].
Criminal Law – Topic 5433.2
Evidence and witnesses – Cross-examination of accused – Prior inconsistent statements – [See all
Civil Rights – Topic 4301
].
Evidence – Topic 4751
Witnesses – Examination – Prior inconsistent statements – Use of and effect of use of – [See all
Civil Rights – Topic 4301
].
Evidence – Topic 4759
Witnesses – Examination – Prior inconsistent statements – Cross-examination on prior testimony – [See all
Civil Rights – Topic 4301
].
Cases Noticed:
R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, confirmed [para. 2].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 3].
R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 3].
R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 3].
R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 3].
R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340, overruled in part [para. 7].
R. v. Noël (C.), [2002] 3 S.C.R. 433; 295 N.R. 1; 2002 SCC 67, confirmed [para. 7].
R. v. Allen (D.), [2003] 1 S.C.R. 223; 302 N.R. 62; 225 Nfld. & P.E.I.R. 1; 672 A.P.R. 1; 2003 SCC 18, confirmed [para. 7].
R. v. Kuldip (1988), 24 O.A.C. 393; 40 C.C.C.(3d) 11 (C.A.), refd to. [para. 9].
R. v. Mannion, [1986] 2 S.C.R. 272; 69 N.R. 189; 75 A.R. 16, overruled [para. 28].
R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 35].
R. v. Allen (D.) (2002), 208 Nfld. & P.E.I.R. 250; 624 A.P.R. 250; 2002 NFCA 2, refd to. [para. 37].
R. v. Noël (2001), 156 C.C.C.(3d) 17 (Que. C.A.), refd to. [para. 42].
R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 44].
R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 44].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 44].
R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 44].
Clark v. Canadian National Railway Co. and New Brunswick, [1988] 2 S.C.R. 680; 89 N.R. 81; 89 N.B.R.(2d) 116; 226 A.P.R. 116, refd to. [para. 44].
United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 44].
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 44].
Reference Re Ng Extradition, [1991] 2 S.C.R. 858; 129 N.R. 177; 119 A.R. 300, refd to. [para. 44].
Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 44].
Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 44].
Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 44].
Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183; 23 N.R. 527, refd to. [para. 44].
R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 45].
Quinn v. Leathem, [1901] A.C. 495 (H.L.), refd to. [para. 53].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 53].
R. v. Sellars, [1980] 1 S.C.R. 527; 32 N.R. 70, refd to. [para. 54].
Haldimand-Norfolk Regional Health Unit v. Ontario Nurses’ Association (1981), 120 D.L.R.(3d) 101 (Ont. C.A.), refd to. [para. 55].
R. v. Sansregret, [1984] 1 W.W.R. 720; 25 Man.R.(2d) 123 (C.A.), refd to. [para. 55].
R. v. Barrow (1984), 65 N.S.R.(2d) 1; 147 A.P.R. 1 (C.A.), refd to. [para. 55].
Clark v. Canadian National Railway Co. and New Brunswick (1985), 62 N.B.R.(2d) 276; 161 A.P.R. 276; 17 D.L.R.(4th) 58 (C.A.), refd to. [para. 55].
Scarff v. Wilson (1988), 33 B.C.L.R.(2d) 290 (C.A.), refd to. [para. 55].
Moses v. Shore Boat Builders Ltd. (1993), 35 B.C.A.C. 146; 57 W.A.C. 146; 106 D.L.R.(4th) 654 (C.A.), refd to. [para. 55].
Friedmann Equity Developments Inc. v. Final Note Ltd. et al. (1998), 112 O.A.C. 253; 41 O.R.(3d) 712 (C.A.), refd to. [para. 55].
Cardella v. Minister of National Revenue (2001), 268 N.R. 168; 2001 FCA 39, refd to. [para. 55].
R. v. Chartrand (1992), 81 Man.R.(2d) 81; 30 W.A.C. 81; 74 C.C.C.(3d) 409 (C.A.), refd to. [para. 55].
R. v. Hynes (D.W.) (1999), 177 Nfld. & P.E.I.R. 232; 543 A.P.R. 232; 26 C.R.(5th) 1 (Nfld. C.A.), refd to. [para. 55].
R. v. Vu (H.M.) (2004), 200 B.C.A.C. 59; 327 W.A.C. 59; 184 C.C.C.(3d) 545; 2004 BCCA 230, refd to. [para. 55].
McDiarmid Lumber Ltd. v. God’s Lake First Nation et al. (2005), 192 Man.R.(2d) 82; 340 W.A.C. 82; 251 D.L.R.(4th) 93; 2005 MBCA 22, refd to. [para. 55].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 56].
R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 56].
Statutes Noticed:
Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 5(1), sect. 5(2) [para. 16].
Canadian Charter of Rights and Freedoms, 1982, sect. 13 [para. 16].
Authors and Works Noticed:
Devinat, Mathieu, L’Autorité des obiter dicta de la Cour suprême (1998), 77 Can. Bar Rev. 1, generally [para. 56].
Lambert, Douglas, Ratio Decidendi and Obiter Dicta (1993), 51 Advocate (B.C.) 689, generally [para. 56].
Wilson, Bertha, Decision-making in the Supreme Court (1986), 36 U.T.L.J. 227, p. 234 [para. 53].
Counsel:
Gil D. McKinnon, Q.C., and Lisa Sturgess, for the appellants;
Alexander Budlovsky and Nikos Harris, for the respondent;
Kenneth J. Yule, Q.C., and Ron Reimer, for the intervener, the Attorney General of Canada;
David Lepofsky, for the intervener, the Attorney General of Ontario.
Solicitors of Record:
Brian Coleman, Lisa Sturgess, Vancouver, British Columbia, for the appellant, Henry;
Gil D. McKinnon, Q.C., Vancouver, British Columbia, for the appellant, Riley;
Attorney General of British Columbia, Vancouver, British Columbia, for the respondent;
Attorney General of Canada, Vancouver, British Columbia, for the intervener, the Attorney General of Canada;
Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario.
These appeals were heard on January 12, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. Binnie, J., delivered the following judgment in both official languages for the court on December 15, 2005.
