INTRODUCTION AND BRIEF DESCRIPTION
Individuals cannot refuse to answer questions or produce evidence in a proceeding on the basis of self-incrimination, but such information cannot be used against them in criminal proceedings except for prosecutions under sections 132 or 136.
SECTION WORDING
83.28(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate them or subject them to any proceeding or penalty, but (a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136; and (b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against them, other than a prosecution under section 132 or 136.
EXPLANATION
Section 83.28(10) of the Criminal Code of Canada is a provision that deals with the powers of investigative agencies to compel individuals to answer questions or produce evidence. This provision is related to sections 132 and 136 of the Criminal Code, which deal with terrorism offences. Subsection (8) of section 83.28 grants investigative agencies the power to compel individuals to answer questions or produce evidence in relation to investigations of terrorism offences. This provision overrides the privilege against self-incrimination, which means that individuals cannot refuse to answer questions or produce evidence on the basis that it may incriminate them. However, subsection (10) of section 83.28 provides certain protections for individuals who are compelled to provide evidence under subsection (8). Firstly, any evidence provided or produced under subsection (8) cannot be used as evidence against the person in any criminal proceedings other than a prosecution under sections 132 and 136. This means that the evidence cannot be used against the person in relation to any other criminal offence. Secondly, any evidence that is obtained as a result of the evidence provided or produced under subsection (8) cannot be used as evidence against the person in any criminal proceedings other than a prosecution under sections 132 and 136. This means that investigative agencies cannot use the information obtained through compelled evidence to bring charges against the person for any other criminal offence. In summary, while section 83.28(8) grants investigative agencies broad powers to compel individuals to provide evidence in relation to terrorism offences, subsection (10) provides certain protections for those individuals. These protections ensure that the evidence provided or produced under subsection (8) cannot be used against the person in any criminal proceedings other than a prosecution under sections 132 and 136, which are specific terrorism offences.
COMMENTARY
Section 83.28(10) of the Criminal Code of Canada is an essential part of the country's legal system as it deals with the sensitive issue of self-incrimination. The section lays down provisions that govern the interrogation of individuals being investigated for offences related to terrorism. The section's primary purpose is to provide the investigating authorities with the tools they need to uncover evidence and information that might help in preventing terrorist activity. The section sets out to place limits on an individual's right against self-incrimination, a fundamental part of the Canadian legal system. The right against self-incrimination is a constitutional right that ensures that individuals are not compelled to provide evidence against themselves in a criminal proceeding. However, this right is not absolute, and certain circumstances may allow the state to seek information from an individual in cases of national security. For instance, section 83.28(8) allows the investigative authorities to demand information or things from individuals under investigation for a terrorism offence. These requests may include anything from documents, data, or passwords to access digital devices. Despite the state's ability to demand the information or thing under subsection (8), the person under investigation is not allowed to refuse to comply on the grounds that the answer given or documents produced may incriminate them. This is an essential aspect of section 83.28(10) as it ensures that the investigative authorities obtain the information required to prevent potential terrorist activities. However, to protect individuals' rights against self-incrimination, the section places certain limitations on the information obtained through the subsection (8) requests. Firstly, the answer or things produced cannot be used directly against the person under investigation in any criminal proceedings, other than a prosecution under section 132 or 136 of the Criminal Code. Section 132 deals with the offence of treason, while section 136 relates to the offence of advocating genocide. Therefore, information obtained under subsection (8) may only be used in cases where the offences listed under section 132 or 136 are implicated. Secondly, the section prohibits the use of any evidence derived from the evidence obtained from the person under investigation. This provision ensures that information obtained through subsection (8) cannot be used to gather additional evidence against the person. This protection is critical as it prevents investigating authorities from using coercive means to obtain information from individuals under investigation. Overall, section 83.28(10) balances the interests of public safety and national security with the rights of individuals against self-incrimination. The section ensures that the investigative authorities have the tools they need to gather information on terrorism-related activities while protecting individuals' rights. It recognizes the complexity of balancing the interests of the state and the rights of individuals, especially when their actions may have far-reaching consequences. Accordingly, this section strikes a balance between protecting the public and ensuring that individuals are not unfairly compelled to incriminate themselves.
STRATEGY
Section 83.28(10) of the Criminal Code of Canada is a provision that poses unique challenges and considerations for individuals and organizations dealing with matters that may fall under the ambit of the provision. The section prohibits a person from refusing to answer any question or produce any material during an investigation, even if the answer or material may indicate that they committed an offense. One of the main strategic considerations when dealing with this section is the potential for self-incrimination. Although the section provides protection against the use of any answers or material provided under this section in criminal proceedings, it is important to remember that the protection is limited. Therefore, it is crucial to take a cautious approach and ensure that your legal rights are protected. One possible strategic consideration is to provide only non-incriminating information and materials during an investigation. This approach can help to avoid any potential legal consequences of producing evidence that may be used against you in a criminal proceeding. Another strategic consideration is to obtain legal counsel before answering any questions or providing any materials. An experienced legal advocate can help to protect your interests, review any materials produced, and monitor the investigation to ensure that your rights are protected. It is also important to note that the protection provided by Section 83.28(10) is not absolute. Any information or materials produced may still be used against you in a prosecution under Section 132 or 136, which relate to terrorism offenses. Therefore, it is important to consider the possibility of facing charges under these sections and to proceed accordingly. Further, it is essential to recognize that the decision to remain silent may be viewed unfavorably and may lead to adverse inferences being drawn in civil proceedings. Therefore, it is advisable to cooperate with investigators as much as possible while simultaneously protecting your legal rights. In summary, when dealing with Section 83.28(10) of the Criminal Code of Canada, it is crucial to consider the potential for self-incrimination, seek legal counsel, and be cautious when providing any information or materials. By adopting these strategies, individuals and organizations can protect their legal rights and limit their exposure to potential criminal consequences.