Canadian Law state this :
QuoteIncriminating questions
5. (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.
R.S., 1985, c. C-5, s. 5;
What happens if the witness is the accused & answering the question would criminate him in the case at hand?
Quote from: Grey Fox on October 12, 2011, 06:51:12 AM
Canadian Law state this :
QuoteIncriminating questions
5. (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.
R.S., 1985, c. C-5, s. 5;
What happens if the witness is the accused & answering the question would criminate him in the case at hand?
Accused never
has to testify. The Crown has to prove the case against the Accused.
If, however, the Accused
chooses to testify, then like any other witness they must tell the truth and must answer all relevant questions placed to them.
So the crown cannot ask the accused to testify?
Quote from: Grey Fox on October 12, 2011, 08:15:07 AM
So the crown cannot ask the accused to testify?
Nope. Right against self-incrimination and all that.
I see. Thanks mate.
Where it gets amusing is if you have two individuals who are involved in the same crime, but as the Crown you can choose to charge them separately. You can then call Accused #2 in Accused #1's trial, and vice versa.
Now technically the law is very clear that when you call Accused #2, that person is a compelled witness, and anything they say can not be used against them in their own trial. But practically speaking it can be very useful thing to do sometimes.
So what did you do, GF?
(https://languish.org/forums/proxy.php?request=http%3A%2F%2Fwww.acceleratingfuture.com%2Fmichael%2Fblog%2Fimages%2FNuke2.JPG&hash=154423822efb28ba05daf92915502cb2bc23febc)
Blew shit up.
This is interesting to me. So you do not have the right to remain silent on the stand but you do have the right to simply refuse to testify. Interesting.
Quote from: Valmy on October 12, 2011, 09:00:47 AM
This is interesting to me. So you do not have the right to remain silent on the stand but you do have the right to simply refuse to testify. Interesting.
That only goes for an Accused though.
Quote from: Barrister on October 12, 2011, 09:06:17 AM
Quote from: Valmy on October 12, 2011, 09:00:47 AM
This is interesting to me. So you do not have the right to remain silent on the stand but you do have the right to simply refuse to testify. Interesting.
That only goes for an Accused though.
Which, as far as I know, is the case here as well.
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
Quote from: Razgovory on October 12, 2011, 09:49:29 AM
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.
Quote from: Grey Fox on October 12, 2011, 10:52:03 AM
Quote from: Razgovory on October 12, 2011, 09:49:29 AM
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.
This. There is no equivalent to "pleading the fifth" in Canada. If you are being compelled to testify though, your evidence can not be used against you.
It gets more tricky in civil proceedings however.
Quote from: Barrister on October 12, 2011, 02:07:16 PM
Quote from: crazy canuck on October 12, 2011, 02:02:55 PM
It gets more tricky in civil proceedings however.
How so?
There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.
Quote from: crazy canuck on October 12, 2011, 02:13:57 PM
Quote from: Barrister on October 12, 2011, 02:07:16 PM
Quote from: crazy canuck on October 12, 2011, 02:02:55 PM
It gets more tricky in civil proceedings however.
How so?
There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.
Wouldn't that be "most of the time"?
Quote from: Barrister on October 12, 2011, 02:17:55 PM
Quote from: crazy canuck on October 12, 2011, 02:13:57 PM
Quote from: Barrister on October 12, 2011, 02:07:16 PM
Quote from: crazy canuck on October 12, 2011, 02:02:55 PM
It gets more tricky in civil proceedings however.
How so?
There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.
Wouldn't that be "most of the time"?
Not necessarily - the law of issue and fact estopple can get pretty complex, which is why the SCC endorsed the Abuse of Process approach in the City of Toronto case a few years back.
:huh:
I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.
Quote from: Barrister on October 12, 2011, 02:36:47 PM
:huh:
I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.
I didnt say that issue estoppel no longer exists. But the Court clearly said in the Civil context that Abuse of Process will likely be the better way to analyze future cases given the complexity in the existing tests of issue and fact estoppel and indeed that is exactly how many civil cases are now decided...
Also, I am not sure what "deterrent" you are talking about.
Quote from: crazy canuck on October 12, 2011, 02:43:01 PM
Quote from: Barrister on October 12, 2011, 02:36:47 PM
:huh:
I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.
I didnt say that issue estoppel no longer exists. But the Court clearly said in the Civil context that Abuse of Process will likely be the better way to analyze future cases given the complexity in the existing tests of issue and fact estoppel and indeed that is exactly how many civil cases are now decided...
Also, I am not sure what "deterrent" you are talking about.
My attempt to summarize the Crown's argument from Maholingan (where the Crown attemtped to argue for the abolition of issue estoppel):
Quote[42] The remedy of abuse of process may or may not provide protection against relitigation of a particular issue. Abuse of process is a broad, somewhat vague concept, that varies with the eye of the beholder. Traditionally, it has been reserved for obviously egregious abuses of the Crown power, and this Court has said that successful reliance upon the doctrine will be extremely rare — only in "a process tainted to such a degree that it amounts to one of the clearest of cases": Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 120. To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process: Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.), at pp. 1492-93. To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes. Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel.
http://www.canlii.org/en/ca/scc/doc/2008/2008scc63/2008scc63.html
I see what the Court is saying - that where issue estoppel is available it is a more certain remedy than abuse of process because abuse of process is descretionary.
But that is exactly why abuse of process is a handy tool to have in ones tool box if issue estoppel is not available. From the Toronto v. Cupe case:
QuoteAs Goudge J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.
Quote from: Barrister on October 12, 2011, 01:53:39 PM
Quote from: Grey Fox on October 12, 2011, 10:52:03 AM
Quote from: Razgovory on October 12, 2011, 09:49:29 AM
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.
This. There is no equivalent to "pleading the fifth" in Canada. If you are being compelled to testify though, your evidence can not be used against you.
I was looking up the historical background to it a little while ago. I was surprised it was under the Commonwealth/Lord Protectorate/Cromwell/whatever the short form of the English Roundhead government is called that a right against self-incrimination was adopted. Dancing, no, protection against torture, yes.
Quote from: Ideologue on October 12, 2011, 03:13:00 PM
Dancing, no, protection against torture, yes.
Dancing was not widely protected in the US until the 1980s release of Footloose.
Quote from: Valmy on October 12, 2011, 09:00:47 AM
This is interesting to me. So you do not have the right to remain silent on the stand but you do have the right to simply refuse to testify. Interesting.
The prosecution cannot call the accused to the witness stand in a criminal case, only the defense can. However prosecution can counter-interrogate, to which the accused must answer the truth or be accused of perjury.
So if the accused comes to the stand it is because he or she wants to, or because it is part of the defense plan.
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Short answer--it used to be the case, but the rules have been changed in some jurisdictions.
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Pretty sure it does, but I'll let a yankee lawtalker explain further.
Why the sudden interest in who is a compellable witness? Anything you want to discuss?
You should note that s. 4 CEA only applies to legally married persons, not common law.
Yes. I probably shouldn't talk about it. It is nothing overly bad, nor criminal. It's Road related.
My OP had to do with that. My new question is only because I found that peculiar.
Quote from: Barrister on October 13, 2011, 12:50:33 PM
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Pretty sure it does, but I'll let a yankee lawtalker explain further.
Why the sudden interest in who is a compellable witness? Anything you want to discuss?
You should note that s. 4 CEA only applies to legally married persons, not common law.
If they are "together" but marry later, does it apply only to the communication made during their marriage, or also during the previous time "together"?
If that's the former, this clearly discriminates against gay people who have been able to legally marry for a short time so far.
For the record, similar Polish exception applies to concubinates and "relations of similar nature", so a gay couple could not be forced to testify against each other, despite there being no legal gay marriage or civil partnership in Poland so far.
:bleeding:
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
Quote from: DGuller on October 13, 2011, 01:48:42 PM
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
We can. It's not like I'm a lawyer. I just browse Canlii.org.
Quote from: DGuller on October 13, 2011, 01:48:42 PM
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
Ah, the loneliness of the lone actuary. A single data point unto himself. :(
["The Lone Actuary" would make a great 50s program for the 10s, like "The Lone Ranger" only with slightly less bullets. :D ]
Quote from: Martinus on October 13, 2011, 01:45:45 PM
Quote from: Barrister on October 13, 2011, 12:50:33 PM
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Pretty sure it does, but I'll let a yankee lawtalker explain further.
Why the sudden interest in who is a compellable witness? Anything you want to discuss?
You should note that s. 4 CEA only applies to legally married persons, not common law.
If they are "together" but marry later, does it apply only to the communication made during their marriage, or also during the previous time "together"?
If that's the former, this clearly discriminates against gay people who have been able to legally marry for a short time so far.
:rolleyes:
Quote from: DGuller on October 13, 2011, 01:48:42 PM
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
I'm not going to induce my wife to post on these boards. Sorry :(
Quote from: Grey Fox on October 13, 2011, 01:41:52 PM
Yes. I probably shouldn't talk about it. It is nothing overly bad, nor criminal. It's Road related.
My OP had to do with that. My new question is only because I found that peculiar.
Feel free to PM me if you'd like. :)
Quote from: Barrister on October 13, 2011, 02:17:40 PM
Quote from: Grey Fox on October 13, 2011, 01:41:52 PM
Yes. I probably shouldn't talk about it. It is nothing overly bad, nor criminal. It's Road related.
My OP had to do with that. My new question is only because I found that peculiar.
Feel free to PM me if you'd like. :)
You're not entrapping him, are you?
Quote from: Jacob on October 13, 2011, 02:18:34 PM
Quote from: Barrister on October 13, 2011, 02:17:40 PM
Quote from: Grey Fox on October 13, 2011, 01:41:52 PM
Yes. I probably shouldn't talk about it. It is nothing overly bad, nor criminal. It's Road related.
My OP had to do with that. My new question is only because I found that peculiar.
Feel free to PM me if you'd like. :)
You're not entrapping him, are you?
Quiet, you... <_<
Quote from: DGuller on October 13, 2011, 01:48:42 PM
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
You like to discuss work? Ugh.
I have no desire discuss SCM unless somebody is paying me.
Et tu bb?
Plus, it's civil law case, could you do anything?
Quote from: Ed Anger on October 13, 2011, 02:47:27 PM
Quote from: DGuller on October 13, 2011, 01:48:42 PM
I feel so left out as the lone actuary on this board. I want to discuss things like reserving practices, or the use of generalized linear models, on Languish. :(
You like to discuss work? Ugh.
I have no desire discuss SCM unless somebody is paying me.
I like discussing my work. It's interesting stuff I get to do. :)
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Spousal privilege? Yeah. The testifying spouse owns the privilege and can waive it, though. Oh, and only applies to private conversations. A third party's presence waives it.
Quote from: Grey Fox on October 13, 2011, 02:48:23 PM
Et tu bb?
Plus, it's civil law case, could you do anything?
I dunno, since I don't know what it's about. I don't mean to pry, but if you think I could help I'm happy to try.
Quote from: Ideologue on October 13, 2011, 02:59:49 PM
Quote from: Grey Fox on October 13, 2011, 12:41:02 PM
QuoteA witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.
Yankees, does this exist in American legislation?
Spousal privilege? Yeah. The testifying spouse owns the privilege and can waive it, though. Oh, and only applies to private conversations. A third party's presence waives it.
The 3rd party rule pretty much applies to all priviliged communications.
Quote from: Barrister on October 12, 2011, 01:53:39 PM
Quote from: Grey Fox on October 12, 2011, 10:52:03 AM
Quote from: Razgovory on October 12, 2011, 09:49:29 AM
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.
This. There is no equivalent to "pleading the fifth" in Canada. If you are being compelled to testify though, your evidence can not be used against you.
Couldn't they use this to force you indicate where other incriminating evidence is? I could see abuse in this.
"When you saw the accused run the red light, you said you were hiding an axe you had used to kill several highschool and college kids. Where did you hide that axe. I remind you Mr. Voorhees, you are under oath".
Quote from: crazy canuck on October 12, 2011, 03:16:44 PM
Quote from: Ideologue on October 12, 2011, 03:13:00 PM
Dancing, no, protection against torture, yes.
Dancing was not widely protected in the US until the 1980s release of Footloose.
:lol:
You know, they're remaking it practically shot-for-shot.
Quote from: Razgovory on October 13, 2011, 06:43:54 PM
Quote from: Barrister on October 12, 2011, 01:53:39 PM
Quote from: Grey Fox on October 12, 2011, 10:52:03 AM
Quote from: Razgovory on October 12, 2011, 09:49:29 AM
Can a witness refuse to testify on the grounds that he will incriminate himself? Say he was out molesting children when he saw the accused robbing the bank?
As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.
This. There is no equivalent to "pleading the fifth" in Canada. If you are being compelled to testify though, your evidence can not be used against you.
Couldn't they use this to force you indicate where other incriminating evidence is? I could see abuse in this.
"When you saw the accused run the red light, you said you were hiding an axe you had used to kill several highschool and college kids. Where did you hide that axe. I remind you Mr. Voorhees, you are under oath".
It'd be an interesting 24(2) analysis to be sure (Canada does not have an automatic exclusionary rule).
But let's be honest - do we really expect people to just up and admit their own guilt on the stand, even knowing that technically that evidence can not be used against them?
Probably not, but I was curious about the legality of it. I wasn't asking about the forcing them to confess on the stand (which they wouldn't have used against them in their own trial), but forcing them to lead the police to evidence that could be used in their trial. Can the police and prosecution act on new information gained from a witness to find evidence they can use against the witness in a future trial? If not, can a witness explain where he hid the incriminating evidence in a trial knowing that the police can't just go get it and legally use it in his prosecution?
Quote from: Razgovory on October 13, 2011, 10:27:59 PM
Probably not, but I was curious about the legality of it. I wasn't asking about the forcing them to confess on the stand (which they wouldn't have used against them in their own trial), but forcing them to lead the police to evidence that could be used in their trial. Can the police and prosecution act on new information gained from a witness to find evidence they can use against the witness in a future trial? If not, can a witness explain where he hid the incriminating evidence in a trial knowing that the police can't just go get it and legally use it in his prosecution?
Without giving a big long dissertation...
Gathering evidence as a result of compelled testimony would almost certainly be a violation of the Accused's Charter rights. You then have to go through an analysis under the Grant/Harrison rules under 24(2) of the Charter to determine whether the evidence found as a result of that violation would be admissible or not.
Like I said - an interesting 24(2) analysis.
Quote from: Neil on October 13, 2011, 06:58:45 PM
Quote from: crazy canuck on October 12, 2011, 03:16:44 PM
Quote from: Ideologue on October 12, 2011, 03:13:00 PM
Dancing, no, protection against torture, yes.
Dancing was not widely protected in the US until the 1980s release of Footloose.
:lol:
You know, they're remaking it practically shot-for-shot.
WTF? Hollywood is a vampire feeding on its past.
Quote from: Ideologue on October 12, 2011, 03:13:00 PMI was looking up the historical background to it a little while ago. I was surprised it was under the Commonwealth/Lord Protectorate/Cromwell/whatever the short form of the English Roundhead government is called that a right against self-incrimination was adopted. Dancing, no, protection against torture, yes.
You wouldn't be surprised if you'd read up on the Commonwealth rather than simply ccepting the 350 years of royalist propaganda that followed it <_< :P