Is Evidence From Other Proceedings Incriminating?

It’s great that you can join me today. I want to talk to you about a very interesting topic. And it’s regarding the Emergency Act. We have now a public inquiry going on and we hear people testify, they’re being cross examined at length, and some of those people are facing criminal charges or they’ve already been charged. Some of them I believe with criminal charges. And the issue is, can what they say at the Emergency Act testimony during the cross examination, can that be used against them in their criminal proceeding to incriminate them? Well, first of all, the very short answer is no, it can’t be used. So if they say something incriminating there, there’s a Charter right protection which prevents that self incrimination that can’t be used because they’re being compelled under subpoena to give evidence against them. Now, you’ve heard in the states they’ll say “I take the fifth” and otherwords, the Fifth Amendment where they don’t have to testify because it could tend to incriminate them. We don’t have that here. But we do have a protection that any incriminating statements they make in any proceeding, let’s say you’re in a divorce proceeding, and you’re under oath for discovery, about spousal support, and  you admit that you hit your wife that can’t be used against you in criminal court as to incriminate you , in other word  to prove a criminal offence. But there’s a big catch to that, I kind of wish we could take the fifth here in Canada because what happens, let’s say, well, let’s take the Emergency Act people, let’s say one of those witnesses whose charged, under Emergency Act is now charged with obstructing police in Ottawa. Okay, so there’s charges obstructing police and they testify in a criminal proceeding. Now, how can their testimony be used against them? It cannot be used in any way. Well, it can be used in one narrow but important way. So first of all, the Crown Attorney prosecuting them or for obstruction, they’re going to obtain a transcript of what they said during the public inquiry. And if they take the witness stand in the criminal matter, and they say something different on the witness stand in criminal court versus what they said then the Crown Attorney is going to confront them and say look, you said you were standing in position A and not obstruction, but here you admitted you are doing something. Now that goes, what the judge will find that that goes to their believability, it doesn’t mean it , doesn’t mean the prior transcript becomes evidence against them and what it does mean it tests their credibility. In other words, they may be a less believable witness and it offers the judge or a jury a chance to reject their evidence because they’re not coming across as credible. So the bottom line with previous testimony, like civil testimony family court testimony, civil proceedings, a public inquiry, it can be used against you in criminal court as a prior inconsistent statement. You’ve said something different that you’re seeing on the witness stand today, you’re going to get confronted by the Crown Attorney who’s going to say look, you can’t keep your story straight. And then the judge might not believe you. So that’s the use of previous testimony in other proceedings, and that’s going to present an interesting issue for I’m sure some of the people charged because I can tell you this, even if you’re a truthful witness, when you’re getting cross examined by a clever cross examiner at the public inquiries, it’s hard to keep the story straight. It’s hard to tell the same truthful version of events the same way every time. That’s why I always counsel my clients look, if you’re going to get charged criminal offence and police ask you to give a statement don’t give it what you’re truthful whether you’re lying or somewhere between you’re not prepared. You’re going to say something different in that statement that you know, stand the witness stand, guaranteed. There’s no question about that. And it’s going to be used against you that affect your credibility. And in a criminal matter, if you give a statement as well to the police. It can be used to incriminate you. So for example, if the police bring you in and you admit your guilt, well, you’ve just confessed unless you have a way to get that thrown out in court and like a rights to counsel that that’s going to lose in your defence, you’re not going to have a defence. So the bottom line is where you can you should exercise your right to dream so never talk to the police. But let’s face it, if you’re in a public inquiry is compelled testimony, and then you have no choice. So that’s what those people are facing in any type of civil proceeding, you’re compelled and it can be used against you in a narrow sense that I’ve described after this video. So I hope that helps you understand how previous proceedings under oath proceedings can be used in a narrow way in a criminal case against you.