Legal Rights When Subpoenaed as a Witness in Canada

Being subpoenaed as a witness in a legal proceeding can be both daunting and intimidating. But it is important to understand your rights and the legal framework that governs your testimony. In this article, we will explore the legal rights you have in Canada when you are summoned to testify in a trial. Although the Fifth Amendment, which protects individuals from self-incrimination, does not apply in Canada, there are provisions in the Canada Evidence Act that can provide you with protection.

The Fifth Amendment and Canada

It is a common misconception that the Fifth Amendment, which provides protection against self-incrimination in the United States, applies in Canada. This is not the case. In Canada, if you are summoned to testify, you have a legal obligation to provide relevant testimony, even if it implicates you in a crime. This is governed by the Canada Evidence Act.

The Canada Evidence Act: Section 5

Section 5 of the Canada Evidence Act specifically addresses the issue of incriminating questions. This section states:

“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.”

In simpler terms, the statute mandates that witnesses must answer questions even if the answers could potentially incriminate them.

The Protection Offered by the Canada Evidence Act

While the provision in Section 5 does not offer immunity from prosecution, it does provide a significant level of protection. The Canada Evidence Act also contains a marginal note that states:

“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.”

This means that any testimony you provide cannot be used against you in any subsequent criminal trial, except in cases of perjury or providing contradictory evidence. This provision is intended to protect witnesses from the risk of self-incrimination and to encourage their cooperation with legal proceedings.

Practical Implications and Considerations

While the provisions of the Canada Evidence Act offer some level of protection, it is important to understand that it does not provide absolute immunity. If your testimony leads to the discovery of additional evidence that can be used against you, you could still be subjected to criminal charges. Therefore, it is crucial to act diligently and seek legal advice before testifying.

Hiring a lawyer can be a wise decision, especially if your testimony might have a significant impact on the case. A lawyer can help you navigate the legal complexities and ensure that your rights are protected. Legal counsel can also advise you on how to prepare for your testimony and provide guidance on the potential risks and benefits of your involvement in the proceedings.

Conclusion

Being subpoenaed as a witness in a legal proceeding is a serious matter, and it is important to understand your legal rights and the protection available to you. While the Fifth Amendment does not apply in Canada, the provisions of the Canada Evidence Act provide essential safeguards for witnesses. If you are summoned to testify, you are legally obligated to do so, and your answers cannot be used against you in subsequent criminal proceedings, except in cases of perjury or contradictory evidence.

However, if your testimony might lead to further evidence against you, it is advisable to consult with a lawyer to understand the potential risks and to ensure that your interests are protected.