La protection contre l'auto-incrimination et les procédures ''non-criminelles''

R. c. Zarow, 2024 QCCA 441

Lien vers la décision

[88]      The principle against self-incrimination is “an overarching principle within our criminal justice system”[52] but it does not provide “absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s.7 [of the Charter] are specific, and contextually-sensitive”.[53] The principle “demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue”.[54]

[89]      Where non-criminal proceedings (such as civil trials, disciplinary hearings, commissions of inquiries) are taking place concurrently with criminal charges, the protection of the right against self‑incrimination under s. 7 of the Charter is triggered where testimonial compulsion exists.

[90]      As mentioned earlier, the principle against self-incrimination is protected through three procedural safeguards, namely: (1) use immunity; (2) derivative use immunity; and (3) constitutional exemption:[55]

•         Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding;

•         The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means; and

•         The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness.[56]

[91]      A professional can be compelled to answer the syndic’s questions at the investigative stage (s. 122 of the Professional Code) or compelled to testify at the hearing stage (s. 147 of the Professional Code). The use immunity and derivative use immunity protections are applicable to a statement made to the syndic during the investigation stage or to the testimony under compulsion at the hearing.

[92]      Furthermore, the protection against self-incrimination enshrined in s. 13 of the Charter is available to the professional who is also charged with a criminal offence, like Mr. Zarow, whether or not he was compelled to testify.[57] Of course, the prior testimony may be used for impeachment purposes.[58]