The Use and Misuse of the U.S. Constitution’s 5th Amendment and Canada’s Section 13 of the Canadian Charter of Rights and Freedoms – Learn Something Interesting

Although Canada does not have a 5th Amendment like the U.S., it does have the ability to invoke Section 13 of the Charter of Rights and Freedoms, which guarantees that “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”. Although the 5th Amendment does not exist in Canada, a collection of laws that function as the same purpose do exist affording both Canadian and U.S. citizens the right to make no statement so as not to incriminate themselves when being questioned. An individual cannot use the 5th Amendment or Section 13 as an absolute and unwavering protectionary device from any statement however. Discretion is provided dependent upon whether or not the person being questioned reasonably believes that disclosure of information could be utilized in a criminal prosecution or that it could lead to other evidence that may be used against that person in the future. In the US, an individual who has been convicted of a crime and sentenced cannot invoke the 5th Amendment. When an individual is able to leverage the 5th Amendment, their silence or refusal to answer questions cannot be used against them in a criminal case meaning a prosecutor cannot argue to a judge or jury that the defendant’s silence implies guilt. In Canada, Section 13 only protects against the use to incriminate prior compelled testimony and is not valid against the use of testimony previously voluntarily supplied