Federal Court. May a jurisdictional error in the form of a breach of procedural fairness "be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: May a jurisdictional error in the form of a breach of procedural fairness "be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?
Question 2: Can it be said that "questioning about events which have been the subject of charges and convictions might not give rise to the possibility of self-incrimination, such that the right to refuse to answer the question does not arise"?
Question 3: In cases which necessarily involve an examination of past criminal conduct and the likelihood of such conduct recurring, would it generally be desirable to inform an unrepresented litigant of the existence of the privilege?
The FCA answered those questions as follows: