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Charter - s.13 Self-Incrimination. R. v. Khodayar
In R. v. Khodayar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal brought against a conviction for "attempting to obstruct justice", here where the appellant was a subpoened witness and "refused to answer any substantive questions relating to the offence".
Here the court considered the Crown-sought admissibility of preliminary hearing transcripts, here where the defendant argued Charter s.13 ['self-incrimination']:Issue 2 - No error in admitting the Transcripts
[33] The appellant submits the application judge erred in admitting the Transcripts contrary to s. 13. He argues as follows. Section 13 provides that compelled evidence cannot be used to incriminate a witness except in a prosecution for perjury or for giving contradictory evidence. The Transcripts are compelled evidence because the appellant was compelled to testify at the preliminary inquiry. The Crown sought to use evidence of the appellant’s refusals to testify (as captured in the Transcripts) to prove the actus reus of the obstruct justice offence. Therefore, the Transcripts are incriminating evidence within the scope of s. 13. Because the appellant was not prosecuted for perjury or for the giving of contradictory evidence, the Transcripts fell outside the s. 13 Exceptions and were entitled to s. 13 Charter protection. Thus, the application judge erred in admitting them into evidence at the obstruct justice trial.
Analysis
[34] I do not accept this submission because it rests on three erroneous legal propositions.
[35] First, the Transcripts are not “incriminating evidence” as that term is used in s. 13. Rather, the appellant’s refusals to answer questions put to him at the preliminary inquiry were the actus reus of a new offence (obstruct justice), committed by the appellant while on the witness stand. As Cameron J.A. explained in R. v. Staranchuk (1983), 1983 CanLII 2402 (SK CA), 28 Sask. R. 45 (Sask. C.A), 3 D.L.R. (4th) 574, at para. 4, aff’d 1985 CanLII 73 (SCC), [1985] 1 S.C.R. 439, a distinction must be drawn between testimony that requires a witness to discuss “the commission by him, previously, of an offence” and is therefore protected by s. 13, and testimony which is “the very essence of the offence”, or the actus reus of a new offence. The latter falls beyond the scope of s. 13’s protection.
[36] Second, because the appellant gave no substantive evidence, the quid pro quo rationale that underlies s. 13 did not operate. The appellant gave no “quid” because he gave no incriminating evidence within the meaning of s. 13. Consequently, he had no entitlement to the “quo” – that is, the protection offered by s. 13.
[37] Third, Schertzer is not limited to situations where the witness has provided false evidence, as the appellant contends. Rather, Schertzer stands for the proposition that s. 13 does not apply where the testimony in question amounts to the actus reus of the new offence.
[38] Accordingly, in my view, the application judge was correct to apply the legal principles in Schertzer and made no error in admitting the Transcripts on the obstruct justice trial. . R. v. Khodayar
In R. v. Khodayar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal brought against a conviction for "attempting to obstruct justice", here where the appellant was a subpoened witness and "refused to answer any substantive questions relating to the offence".
The court considered Charter s.13 ['self-incrimination'], and some case-considered doctrine:[8] Section 13 of the Charter and the Schertzer and Seecharan decisions are key to deciding this appeal. Accordingly, I will first set out s. 13 and describe its purpose, and then summarize the key determinations made in both of those cases.
Section 13 of the Charter
[9] Section 13 enshrines the right against testimonial self-incrimination. It reads as follows:A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for giving of contradictory evidence. [10] I will refer to the last phrase in s. 13, which excepts from its operation “a prosecution for perjury or for giving of contradictory evidence”, as the “s. 13 Exceptions”.
[11] The purpose of s. 13 is to protect individuals from being indirectly compelled to incriminate themselves: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 22, citing Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 358 and R. v. Kuldip, 1990 CanLII 64 (SCC), [1990] 3 S.C.R. 618, at p. 629. The rationale underlying s. 13 is referred to as the “quid pro quo”: the witness is offered protection in exchange for truthful incriminating testimony: R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, at para. 21; Schertzer, at para. 39.
[12] The “quid” refers to “incriminating evidence” the witness gave at a proceeding in which the witness could not refuse to answer. The “quo” is the state’s side of the bargain. In return for having compelled a witness to testify, to the extent the witness provided incriminating evidence, the state undertakes it will not use that evidence to incriminate the witness in any other proceeding, except a prosecution for perjury or for the giving of contradictory evidence: R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, at paras. 6-7. Whether the evidence is incriminating is to be determined at the time of the subsequent proceeding, not the original proceeding in which the evidence was provided: Nedelcu, at paras. 8-9, 16-17.
[13] Section 13 ensures that a witness is able to provide “full and frank” testimony without worrying about the state’s ability to make use of that evidence to later incriminate them: Nedelcu, at paras. 39-41.
Schertzer
[14] Mssrs. Pang and Chiu were arrested for possession of heroin. Five members of the Toronto Police Service drug squad (the “appellants”), led by Schertzer, were involved in their arrest. The appellants were charged with attempting to obstruct justice. The charge alleged that the appellants attempted to obstruct justice by “making false or misleading entries in their memo books, and/or by lying to the court in their testimony”. All of the appellants, except for Schertzer, testified at the Pang preliminary inquiry. The central issue at the obstruct justice trial was the timing of the appellants’ search of the apartment. The Crown alleged that the appellants searched the apartment before the search warrant physically arrived, but the appellants maintained they did not search the apartment until after it had arrived.
[15] The appellants were convicted. They appealed against conviction to this court. Their first ground of appeal was that the trial judge erred in leaving courtroom testimony as a possible mode of committing the attempt to obstruct justice charge, thereby violating s. 13 of the Charter.
[16] Justice Benotto, writing for this court in Schertzer, rejected this submission. She explained that: (1) s.13 was not engaged because the testimony itself was the actus reus of the offence; and (2) since the evidence was not truthful, there was no quid pro quo as envisaged by the s.13 jurisprudence: at para. 33. She added that “a witness does not have immunity for lying under oath”: at para. 41.
Seecharran
[17] In Seecharran, the applicant was awaiting trial on two indictments: in one, he was charged with first degree murder and in the other, he was charged with attempt to obstruct justice.
[18] On the murder charge, it was alleged that the applicant killed Edwin Villon by shooting him in the head. Karla Garcia Woltke, the applicant’s mother, was charged with the same murder for having allegedly aided or abetted her son. The alleged motive for the killing was that Mr. Villon had assaulted Ms. Woltke and the applicant killed him as an act of revenge. The applicant admitted firing the fatal shot so the only issue for the murder trial was whether the applicant had the requisite mens rea.
[19] The Crown proceeded separately against the applicant and Ms. Woltke. Each was called as a witness against the other, at separate preliminary inquiries. Ms. Woltke incriminated her son and he was committed for trial. After the applicant was sworn or affirmed as a witness at Ms. Woltke’s preliminary inquiry, he refused to testify and incriminate his mother.[1] However, he did answer one question in which he identified Ms. Woltke as his mother.
[20] On the obstruct justice charge, the alleged offence was the wilful attempt to obstruct the court of justice by not providing material evidence at Ms. Woltke’s preliminary inquiry. The Crown sought to tender the transcript from Ms. Woltke’s preliminary inquiry (the “Woltke PI Transcript”), arguing that it proved the actus reus of the offence, namely, “not providing material evidence”. The applicant applied to have the Woltke PI Transcript excluded on the basis that, among other things, its admission was a violation of s. 13.
[21] The application judge found the Woltke PI Transcript to be “incriminating evidence” within the meaning of s. 13 because the Crown sought to use it to prove the actus reus of the obstruct justice offence: at para. 33. He stated that Schertzer stands for the proposition the s. 13 Exemptions broadly mean “proceedings related to offences in the nature of giving a false statement under oath”: at para. 39. However, he concluded that because the applicant refused to give evidence, he had not given a false statement under oath and, therefore, the Woltke PI Transcript was not exempted from the operation of s. 13 of the Charter: at para. 40. Accordingly, he found the Woltke PI Transcript inadmissible at the applicant’s obstruct justice trial. . R. v. Yang
In R. v. Yang (Ont CA, 2023) the Court of Appeal allowed an appeal on grounds that a non-party witness intentionally waited until trial - where they would have the protection of Charter s.13 ['Self-incrimination'] and s.5 of the Canada Evidence Act ["Incriminating questions"] - before revealing that he had exonerating, though potentially self-incriminating, testimony:[12] Mr. Yang argues that the trial judge’s reasoning – that Mr. Xu’s failure to clear Mr. Yang by going to the police and admitting ownership is inconsistent with his claim that he was “very happy to come to court to prove that it belonged to me” – is based on a misunderstanding of the law (the “failure to admit error”). Had Mr. Xu told the police before trial that he owned the marijuana he would have been self-incriminating and could have been charged, given the belief by the police that this marijuana was possessed for the purpose of trafficking. But if he waited until trial to give that explanation, he would be protected by s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, and s. 13 of the Charter from having his testimony used against him, either on this charge or for any charges arising from breach of the terms of his marijuana licence as a result of this incident.
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[14] ... With respect to the “failure to admit error”, Mr. Xu’s decision to await trial before attempting to clear Mr. Yang would be a prudent and sensible choice, given the state of the law. By waiting, he could protect Mr. Yang without imperilling himself. There is therefore no inconsistency between refraining from self‑incriminating before trial and being happy to be able to take responsibility during trial when it is safe to do so. We are persuaded that the trial judge engaged in an illogical or irrational line of reasoning in support of the verdict, given the state of the law. Indeed, this reasoning error by the trial judge is on the periphery of an error of law since it depended on an oversight by the trial judge relating to the relative legal jeopardy Mr. Xu would be in by sharing his account before or during his testimony. . Sakab Saudi Holding Company v. Saad Khalid S Al Jabri [for numbered case cites, see the main link]
In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri (Div Court, 2023) the Divisional Court considers the Charter s.13 ['self-incrimination'] protection in the context of contempt enforcement of a civil Mareva injunction (which compels disclosure of evidence). Charter s.13 reads:Self-crimination
13 A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
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Issue 2: Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion because a civil contempt motion is not “other proceedings” within the meaning of s. 13 of the Charter?
[35] The motion judge found that the contempt motion was brought within the civil proceedings and is not a separate proceeding. On this basis he found that s. 13 of the Charter does not apply to preclude use of information obtained in the civil proceeding in the prosecution of the contempt motion. The motion judge’s analysis leading to this conclusion was as follows:a. Section 13 of the Charter applies to a civil contempt motion. It provides: “A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence.”[27]
b. An accused’s testimony on a first trial may not be placed into evidence as part of the Crown’s case in a subsequent re-trial: the subsequent re-trial is an “other proceeding” within the meaning of Charter, s. 13.[28] However, this line of authority is distinguishable from the case at bar: the contempt motion is not a re-trial, but rather is an integral part of the ongoing civil proceedings.
c. Reliance on prior evidence in a civil proceeding in respect to current allegations of contempt has been both authorized and found to be essential to the due enforcement of court orders.[29] [36] The motion judge then concluded as follows (Decision, paras. 77 and 78):The Saad Mareva Order prominently states that if Dr. Saad disobeys the order he may be held in contempt of court, and that any other person who knows of the order and does anything which helps or permits Dr. Saad to breach the terms of the order may also be held to be in contempt of court. The Saad Mareva Order required Dr. Saad to provide to the plaintiffs within 10 days a sworn statement detailing the nature, value and location of his assets worldwide and to submit to examination under oath within 10 days of the delivery of the sworn statement. The purpose of the term requiring a sworn statement of assets is to facilitate enforcement of the order restraining any dealings with Dr. Saad’s worldwide assets. The purpose of the term providing for examination of Dr. Saad under the Saad Mareva Order is to allow the plaintiffs to test the accuracy and truthfulness of the sworn statement of assets and to facilitate actions to prevent assets that they claim were fraudulently taken from being dissipated.
When I consider the purpose of a Mareva order such as the Saad Mareva Order, it is clear that the sanction of an order for contempt of court stated on the face of the Commercial List Model Order for violating the Mareva order by making a false declaration of assets or dissipating assets is an integral part of a civil proceeding, one that allows the court to enforce its own process. The fact that a contempt motion is quasi-criminal and that the remedy for contempt may include punishment through a fine, or even imprisonment, does not, in my view, make a contempt motion made in a civil proceeding for the alleged violation of an order made in that proceeding “other proceedings” under s. 13 of the Charter. In support of this conclusion, I rely on McClure, which I regard as correctly decided, and the authorities which have followed it.[30] [37] I agree with this reasoning and this conclusion. I would add one point. It is good practice to include a warning in a Mareva order respecting the potential consequences of breaching the order. However, it is not necessary: in our society, governed by the Rule of Law, everyone is required to obey a court order, and consequences (including a finding of contempt) may follow if the order is breached. I do not take the motion judge to have concluded otherwise: his reference to the warning in the Mareva order is part of his conclusion that the order, its terms and its enforcement, are all part of the same proceeding, a conclusion with which I agree.
[38] The contempt motion is not an “other proceeding” from the civil proceeding in which it has brought within the meaning of s. 13 of the Charter. I would not give effect to this ground of appeal.
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[46] In respect to further requests for production of documents, the motion judge considered a line of authorities[33] to the effect that documents compelled prior to criminal proceedings, for other lawful purposes, are not inadmissible in subsequent criminal proceedings. The motion judge then considered R. v. Jarvis, upon which the appellants relied, in support of the proposition that when an investigation shifts from administrative to criminal in nature, administrative powers may no longer be used to compel a taxpayer to provide documents and information, in violation of their right to remain silent.[34] The motion judge then concluded as follows (the “Production Ruling”):The Court in Jarvis did not provide for an exception to the taxpayer’s Charter rights where the documents required from the taxpayer exist independently of any state compulsion.
I do not agree that Branch[35] is authority for the proposition that where documents exist independently of any state compulsion, the principle against self-incrimination under the Charter does not apply. The plaintiffs have brought a contempt of court motion seeking remedies against Dr. Saad and Mohammed. The plaintiffs having done so, the Charter rights of Dr. Saad and Mohammed are engaged. The plaintiffs cannot conscript Dr. Saad and Mohammed to assist in the prosecution of the contempt motion against them by compelling them to assemble and produce documents which the plaintiffs reserve the right to use to convict them of contempt of court.
This conclusion applies to both Dr. Saad and Mohammed. Although the documents sought from Mohammed are sought under the Mohammed Mareva Order and the contempt motion against Mohammed is brought in respect of the Saad Mareva Order, the plaintiffs reserve the right to use any documents produced by Mohammed to aid in the prosecution of the contempt motion against him. In these circumstances, the principle against self-incrimination under the Charter is engaged in respect of Mohammed and Dr. Saad.
Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion. I agree with the motion judge’s analysis except for one core point: an allegation of contempt does not transform proceedings from civil to criminal unless the court also finds that the contempt allegation is predominately penal rather coercive. If the contempt motion is predominantly coercive, then the nature of the proceedings has not been “transformed” to criminal.
[47] The problem with the Admissibility Ruling and the Production Ruling are their apparent inconsistency, in principle, with the motion judge’s decision respecting Issues 1 and 2. It is clear that the motion judge wrestled with this problem, and he correctly concluded that the weight of authority supported drawing a distinction between compelled evidence provided prior to an allegation of contempt and compelled evidence provided after an allegation of contempt. This context does matter, but it does not determine the issue.
[48] First, the motion judge is correct in finding that the Mareva order continues in force and the appellants’ obligations thereunder likewise continue. On the basis of the Mareva order, undertakings must be answered and information and documents provided.
[49] Second, until the respondents seek to rely on information and documents compelled from the appellants in support of the contempt motion, the court need not rule on the admissibility of that evidence.
[50] Third, if the respondents do seek to rely on information and documents compelled from the appellants and provided by them after commencement of the contempt motion, at that time the court should assess the “predominant purpose” of the contempt motion, by analogy to R. v. Jarvis.[36] If the court finds that the predominant purpose of the contempt motion is “coercive” rather than “penal” then the evidence may be compelled and will not be inadmissible because it is conscriptive.[37] If the court finds that the predominant purpose of the contempt motion is penal, then the moving party may pursue alternative approaches to obtain evidence for the contempt motion.
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