Handling the criminal justice system can be an overwhelming experience, especially when you find yourself at the centre of a trial. The stakes are high, and every decision can significantly impact the outcome of your case.
One of the most critical decisions you may face is whether to take the stand in your own defence. This guide, curated by an experienced criminal trial lawyer in Mississauga, aims to provide you with the knowledge and strategies necessary to make an informed decision. It covers the legal context, the pros and cons of testifying, and how to prepare effectively if you choose to testify. With this guidance, you can handle your trial with greater confidence and clarity.
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Section 13 – Protection Against Self-Incrimination
Understanding the Provision
Section 13 of the Canadian Charter of Rights and Freedoms provides that a witness who testifies in any proceeding has the right not to have any incriminating evidence used to incriminate them in any other proceedings. This protection does not apply in cases of perjury or giving contradictory evidence.
This means that your testimony in one proceeding cannot generally be used against you in another, thus offering protection against self-incrimination. (Self-incrimination means giving testimony likely to subject you to criminal prosecution.)
Similar Provisions and Broader Protections
This protection aligns with Section 11(c), which ensures that a person charged with an offence is not compelled to testify against themselves, and Section 7, which provides protection against self-incrimination during investigation and pre-trial processes. These sections collectively uphold the elements of fundamental justice, ensuring that individuals are safeguarded against self-incrimination when their life, liberty, or security is at stake.
Purpose of Section 13
The right against self-incrimination is important in Canadian criminal law. Section 13 is intended to protect individuals from being indirectly forced to incriminate themselves. By ensuring that self-incriminating testimony cannot be used in subsequent proceedings, this right encourages truthful testimony without fear of future criminal jeopardy. In essence, the state offers a trade-off: full and frank testimony in exchange for immunity from the use of such testimony to incriminate the witness later on.
The Decision to Testify
Legal Context
In Canada, the right to remain silent is constitutionally protected. This means you are never required to take the stand in your own trial. However, there are situations where doing so may be necessary to advance a particular defence, such as when it involves proving your mental state at the time of the alleged offence.
Weighing the Pros & Cons
Before deciding to testify, it is important to consider both the potential benefits and risks. Taking the stand opens you up to cross-examination by the Crown Prosecutor, where you will be required to answer questions that could potentially undermine your defence. Your criminal lawyer in Mississauga will provide advice based on the specifics of your case, and it is essential to heed their recommendations.
Preparing to Testify
Direct Examination
If you choose to testify, your lawyer will begin with a direct examination. During this phase, they will ask you open-ended questions designed to effectively present your side of the story. The goal is to provide a credible narrative supporting your defence.
Cross-Examination
Following the direct examination, the Crown Prosecutor will conduct a cross-examination. This is often a challenging and stressful part of the trial, as the prosecutor will ask closed-ended questions intended to undermine your credibility and weaken your defence. Being well-prepared for this phase is crucial to maintaining your composure and delivering consistent, truthful responses.
Tips for Taking the Stand
Listen to Your Lawyer
Your lawyer’s advice is grounded in extensive education and real-life experience with criminal trials. Their guidance is aimed at ensuring your success in court, so it is vital to follow their instructions closely.
Make a Written Statement
Drafting a written statement about the events surrounding the alleged charge can be beneficial. Reviewing this statement before your trial will help keep the details fresh in your mind, enhancing the clarity and credibility of your testimony.
Stay Calm
Taking the stand can be worrying. The questions posed by the Crown Prosecutor may provoke anger or frustration. It is important to remain calm and composed, as displaying hostile or overly defensive behaviour can negatively impact the judge’s perception of you.
Tell the Truth
Honesty is important when testifying. Even if you believe certain answers might harm your defence, lying can significantly damage your credibility and lead to additional charges, such as perjury. Always tell the truth to maintain your integrity and the strength of your defence.
Detailed Analysis of Section 13
The Scope of Protection
Section 13’s protection involves two distinct procedures: the initial proceeding, where the testimony is given, and the subsequent proceeding, where the state seeks to use that testimony.
Generally, witnesses who are compelled to testify in any proceeding, except for an accused in a criminal one, are protected from having their compelled testimony used against them in future criminal proceedings.
The Purposive Approach
Courts adopt a so-called ‘purposive approach’ (more on that shortly) when determining whether any accused in the criminal proceeding must benefit from the Section 13 defences regarding testimony given in prior proceedings. (The purposive approach considers the intended purpose of Section 13, focusing on whether excluding the testimony would effectively protect against compelled self-incrimination.) This approach focuses on whether excluding the testimony would further the purpose of Section 13, which is to protect against compelled self-incrimination.
Voluntary vs. Compelled Testimony
For Section 13 to apply, the testimony must be compelled. However, testimony provided voluntarily in a prior proceeding does not receive the same protection. Testimony is considered compelled when a person is legally required to provide it, even if they did not feel compelled at the time.
Exceptions to Section 13
There are notable exceptions to the protections offered by Section 13. For instance, if the prior testimony constitutes the actus reus (the guilty act) of a subsequent offence, Section 13 does not apply.
Additionally, testimony given voluntarily at an earlier trial can be used in a retrial if the accused chooses to testify again and contradicts their previous statements.
The Meaning of “Any Other Proceedings”
The phrase “any other proceedings” extends beyond criminal proceedings to include civil and administrative proceedings where penal consequences are at stake. This broad interpretation ensures that individuals are protected in a wide range of contexts.
The Definition of “Incriminating Evidence”
Section 13 protects against the use of incriminating evidence, defined as evidence used to prove or assist in proving one or more elements of an offence. The determination of whether evidence is incriminating occurs at the subsequent proceeding when the Crown seeks to use it. Not all compelled information is protected; only that which directly contributes to proving guilt is covered.
Practical Implications
In practice, any testimonial evidence provided by an accused in a prior proceeding cannot be used as part of the Crown’s case-in-chief against them in a subsequent trial. This protection ensures that the accused is not indirectly compelled to testify again.
Taking the stand in your trial is a major decision that requires careful consideration. Knowing your rights under Section 13 and related laws is crucial. Follow your Mississauga criminal trial lawyer’s advice and prepare well to navigate this part of your trial effectively. Whether or not you testify, aim to present a credible defence. With the right preparation and support, you can face your trial with confidence, ensuring that your rights are protected and your story is heard. This guide provides the knowledge and tools to help you make the right decisions and, if you choose, take the stand with confidence.