Sep
2020

Is There an Equivalent to the 5th Amendment in Canada?

September 27th, 2020 in Criminal Law FAQs

People often make the mistake of assuming that the Canadian and American justice systems are the same. After all, these countries seem fairly similar, so how different could their legal systems be?

In truth, they are very different.

Two Systems

Canada and the US achieved independence and arrived at their current legal systems through two drastically different paths. However, this doesn’t mean that there are no similarities; both systems are based in British Common Law, and there are many Canadian laws that have an equivalent in the US, and vice versa. They may not have the same names, but there are usually laws in each country that extend similar rights to its citizens.

The US 5th Amendment

The 5th Amendment to the US Constitution codified a number a of important citizens’ rights into law. It makes provisions for grand juries in the case of capital crimes, stipulates the due process of law, prohibits double jeopardy, provides compensation for expropriated land, and states that no person “shall be compelled in any criminal case to be a witness against himself.”

This latter provision is perhaps the most famous part of the 5th Amendment, and certainly on television, where it is often invoked as “pleading the fifth.”

The Canadian Patchwork

There is no 5th Amendment in Canada, but the provisions therein have been addressed in different ways that fit into the Canadian system:

--Grand juries used to be a part of Canadian law, but declined and were abolished.

--The due process of law is writ in the very basis of Canada’s legal system. -Double jeopardy is covered in Section 11(h) of the Canadian Charter of Rights and Freedoms.

--Compensation for taken land is contained in Section 25 of the Expropriation Act.

--Lastly, “pleading the fifth” in Canada means invoking Section 13 of the Charter, 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.”

One Goal

Thus, there is no 5th Amendment in Canada, but rather a collection of laws that function for the same purpose. Although these countries acquired their legal systems by different paths, they share the same goal to provide protection for their citizens under the rule of law. This common goal is why each countries citizens enjoy similar rights, and why the two systems are so often mistaken for being more alike than they actually are.

Michael Bloom is a very experienced criminal defence lawyer, who started his career as a Crown Prosecutor.

If you have any questions about this article or would like to schedule a free consultation with Mr. Bloom, please call his office at (604) 603-5513 or Toll-Free at (877) 603-5513.