R v Henry: A Welcome Retreat from an Overly Broad Interpretation of S. 13 of the Canadian Charter of Rights and Freedoms

AuthorDale E. Ives
Publication Date01 Jul 2006
SubjectCase Note
IJEP10-3-final.vp CASE NOTE
R v Henry: A welcome retreat from
an overly broad interpretation of s. 13
of the Canadian Charter of Rights and
By Dale E. Ives*
Assistant Professor, Faculty of Law, University of Western Ontario

Section 13 of the Canadian Charter of Rights and Freedoms guarantees
‘[a] witness who testifies in any proceeding … the right not to have any
S incriminatingevidencesogivenusedtoincriminatethewitnessinany
other proceedings, except in a prosecution for perjury or the giving of contra-
dictory evidence’. Until recently the Supreme Court of Canada interpreted s. 13
extremely broadly, leading some judges and commentators to assert that the
court had effectively constitutionalised an accused’s right to lie. The court’s broad
interpretation flows from four decisions:
Dubois v The Queen, which held that s. 13 precludes the Crown at a retrial
on the same indictment from adducing as part of its case-in-chief the
accused’s testimony from the initial trial;1
R v Mannion, which extended Dubois by holding that the Crown also
could not cross-examine the accused at the retrial on his or her
testimony from the initial trial if the purpose of the cross-examination
was to incriminate the accused;2
Email: dives@uwo.ca.
[1985] 2 SCR 350 at 365, 22 CCC (3d) 513, 48 CR (3d) 193. This overruled the common law rule
permitting the use of such testimony. See R v Brown (No. 2) [1963] 3 CCC 326, 40 CR 105, SCC, rev’g
[1963] 3 CCC 326, 40 CR 90, NWTCA.
[1986] 2 SCR 272 at 280, 28 CCC (3d) 544, 53 CR (3d) 193.
(2006) 10 E&P 212–220

R v Kuldip, which limited Mannion by holding that the accused could be
cross-examined at the retrial on his or her testimony from the initial
trial for the limited purpose of impeaching credibility;3 and
R v Noël, which seemingly4 limited Kuldip by holding that cross-
examination on an accused’s prior testimony even for the limited
purpose of impeachment is prohibited unless there is no realistic
danger that the testimony will be used to incriminate the accused.5
In R v Henry6 the court partially retreated from its earlier jurisprudence by holding
that s. 13 does not impose any restrictions on the Crown’s ability to cross-examine
an accused who testifies at a retrial on his or her testimony from the initial
trial.7 This revised interpretation of s. 13 is an important and welcome develop-
ment in the court’s often frustrating jurisprudence on the principle against
self-incrimination. However, the reasoning employed by the court is not entirely
persuasive and results in an interpretation of s. 13 that is not fully consistent with
the section’s identified purpose or the language of the provision. The decision will
therefore not satisfy everyone.
Facts of the case
The two accused, Henry and Riley, were charged with first-degree murder in
relation to the death of an individual during a robbery. Both accused testified,
admitting their involvement in the robbery and the killing, but claimed they were
only guilty of manslaughter because they were intoxicated at the time of the
killing. They were convicted of first-degree murder, but successfully appealed
their convictions due to the trial judge’s improper instruction of the jury on the
intoxication defence.
[1990] 3 SCR 618 at 634, 61 CCC (3d) 385, 1 CR (4th) 285.
Noël differs from the earlier cases because Noël was not the accused when he provided the initial
testimony: although both Noël and his brother were charged with jointly killing a nine-year-old
boy, they were tried separately, and the Crown subpoenaed Noël as a witness at his brother’s trial.
Noël’s initial testimony was therefore given under compulsion at another individual’s trial,
whereas Dubois, Mannion and Kuldip’s initial testimony had all been given voluntarily at their
own trials. However, there is nothing in Arbour J’s reasons in Noël to suggest that she intended to
restrict her ruling to situations where the initial testimony was compelled or given at another
individual’s trial. Most commentators therefore concluded that Noël applied to all cases, including
those involving the retrial of an accused on the same indictment. See e.g. D. M. Paciocco and
L. Stuesser, The Law of Evidence, 4th edn (Irwin Law: Toronto, 2005) 266–7.
[2002] SCR 433 at paras 30 and 46–59, 166 CCC (3d) 193, 5 CR (6th) 1. The use of prior testimony to
impeach credibility is therefore only permitted in relation to testimony that was innocuous when
given and still innocuous at the later trial.
2005 SCC 76.
Ibid. at para. 43.

At the retrial each accused again testified, relating a version of events that differed
significantly from the original testimony. Henry maintained his initial claim that
he was intoxicated at the time of the killing, but he otherwise claimed to have no
real recollection of the relevant events. Riley abandoned...

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