SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Marius
Nedelcu
Respondent
-
and -
Attorney
General of Quebec, Advocates’ Society and
Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 43)
Dissenting
Reasons:
(paras. 44 to 145)
|
Moldaver J. (McLachlin C.J. and
Deschamps, Abella, Rothstein and Karakatsanis JJ. concurring)
LeBel J. (Fish and Cromwell JJ.
concurring)
|
R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311
Her Majesty The
Queen Appellant
v.
Marius Nedelcu Respondent
and
Attorney General of Quebec,
Advocates’ Society and
Criminal
Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Nedelcu
2012 SCC 59
File No.: 34228.
2012: March 16; 2012: November 7.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for ontario
Constitutional
law — Charter of Rights — Self‑incrimination — Accused involved in motor
vehicle accident where victim sustained serious injuries — Accused charged with
Criminal Code offences — Accused testifying in criminal action — Testimony
inconsistent with discovery testimony in prior related civil action — Whether
Crown at criminal trial may cross‑examine accused on prior inconsistent
statements without infringing right against self‑incrimination — Canadian
Charter of Rights and Freedoms, s. 13 .
After
work one evening, N took the victim for a ride on his motorcycle on their
employer’s property. The motorcycle crashed into a curb, causing the victim
permanent brain damage. N sustained minor injuries and was hospitalized
overnight. N was charged with dangerous driving causing bodily harm and
impaired driving causing bodily harm. He was also sued in a civil action by
the victim and his family. During his examination for discovery in the civil
matter, N testified that he had no memory of the events from the day of the
accident until he woke up in the hospital the following day. At his criminal
trial, however, N gave a detailed account of the events leading up to and
during the accident. Having been granted leave to cross‑examine N on his
discovery evidence, the Crown asked N about his memory of the events. N
stated, “I have a recollection about 90, 95 percent”. N’s trial testimony was
found to be unreliable and he was found guilty of dangerous driving causing
bodily harm. The Court of Appeal allowed N’s appeal. The trial judge’s ruling
was overturned, the conviction was set aside and a new trial was ordered.
Held
(LeBel, Fish and Cromwell JJ. dissenting): The appeal should be
allowed, the order for a new trial set aside, and the guilty verdict on the
charge of dangerous driving causing bodily harm restored.
Per McLachlin C.J.
and Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.: Although
N was statutorily compellable and therefore compelled for the purpose of s. 13
of the Charter to testify at his examination for discovery in the civil
action, the use of his non‑incriminating discovery evidence for
impeachment purposes could not and did not trigger the application of s. 13 .
Section 13 is not directed to “any evidence” the witness may have been
compelled to give at the prior proceeding, but to incriminating evidence. Incriminating
evidence is evidence given by the witness at the prior proceeding that the
Crown could use at the subsequent proceeding, if it were permitted to do so, to
prove guilt, i.e., to prove or assist in proving one or more of the essential
elements of the offence for which the witness is being tried. Where the
evidence given by the witness at the prior proceeding could not be used by the
Crown at the subsequent proceeding to prove the witness’s guilt on the charge
for which he or she is being tried, the prior evidence is not “incriminating
evidence”.
The
mere possibility that evidence, which is otherwise “non‑incriminating”,
can be converted into “incriminating” evidence if the Crown were to take the
added steps needed to make it so, is not enough to trigger the application of
s. 13 . The use of N’s discovery evidence to test his credibility, and
nothing else, could not convert his discovery evidence into incriminating
evidence. The discovery evidence would retain its original characteristics and
it would not become evidence from which the triers of fact could infer guilt.
While
it is true that N’s inconsistent discovery evidence might lead the triers of
fact to reject his trial testimony, rejection of an accused’s testimony does
not create evidence for the Crown — any more than the rejection of an accused’s
alibi evidence does, absent a finding on independent evidence, that the alibi
has been concocted.
On
this construction of s. 13 , neither the truthful witness nor the perjurer
need be concerned that any incriminating evidence given by them at a prior
proceeding will be used against them, for any purpose, at a subsequent
proceeding for anything other than perjury.
While
this approach might impinge ever so slightly on clarity and predictability,
clarity and predictability should not be pursued at the expense of rewriting
s. 13 to remove critical words that alter the meaning of the section and
impermissibly extend its protection beyond its intended purpose. Trial judges
will have little difficulty deciding whether evidence put forward by the Crown
meets the test for “incriminating” evidence as defined. It would of course be
incumbent on trial judges to provide juries with clear instructions as to the
use they could make of the evidence given at the prior proceeding.
On
its own, N’s discovery testimony could not have been used by the Crown to prove
or assist in proving one or more of the essential elements of the criminal
charges he was facing. While his inconsistent discovery evidence might lead
the triers of fact to reject his trial testimony, rejection of an accused’s
testimony does not create evidence for the Crown.
Per LeBel, Fish and
Cromwell JJ. (dissenting): The right against self‑incrimination
lies at the heart of our justice system and is enshrined in the Canadian
Charter of Rights and Freedoms . It is intimately linked to the right to
stand silent in the face of one’s accuser, to the presumption of innocence and
to the notion that the Crown must prove its case beyond a reasonable doubt
without any assistance from the accused.
Section
13 only applies when the quid pro quo is engaged: a witness’s evidence
is compelled in exchange for a guarantee that the Crown will not use that evidence
against that person if another proceeding is engaged. The focus of the
s. 13 analysis should be on compulsion. Evidence should be treated as
compelled where there is a statutory route by which the witness could be
compelled to give evidence. Whether or not that route is actually taken does
not change the fact that it was available and could have been taken. It would
be unprincipled to give a lesser degree of Charter protection to a
witness who testifies willingly than to a witness who must be subpoenaed or
otherwise forced to give evidence, if both could have been statutorily
compelled to testify in any event.
Similarly,
the focus should not be on the nature of the statements. While s. 13
refers to using “incriminating statements” to “incriminate”, parsing an accused
person’s testimony to distinguish what is “incriminating” from what is
“innocuous” in order to determine on what parts of his or her testimony the
accused may be cross‑examined might result in a protracted and
unpredictable classification exercise. That distinction is just as unworkable
as the previously abolished distinction between using prior compelled testimony
to impeach credibility and using it to incriminate the accused. It is
especially difficult to draw that distinction because the focus of the right
against self‑incrimination is on the second proceedings, the time at
which the previous testimony is sought to be used, rather than the time at
which it is given. Any evidence that may assist the Crown in proving its case
will have an incriminating effect and must therefore be subject to s. 13
protection.
The
protection afforded by s. 13 is not lost when a witness gives what is
perceived to be dishonest testimony. Although the quid pro quo is meant
to encourage full and frank evidence, s. 13, in the context of the greater
balancing of interests embodied in the Charter , dictates that the truth‑seeking
function of the trial give way to the right of the accused against self‑incrimination.
The quid pro quo is not a “contract” with a witness that can be
nullified if the witness lies under oath. Prior compelled evidence can be used
in a prosecution for perjury or for the giving of contradictory evidence. Laying
criminal charges for perjury is the appropriate way to deal with witnesses who
tailor their evidence to suit their needs in each particular proceeding without
diluting the Charter rights of the accused. This approach maintains
respect for the administration of justice while fully preserving the s. 13
right of the accused. It also avoids the need to conduct a voir dire,
which would encumber the trial process, render the scope of s. 13 dubious
in theory and uncertain in practice, discourage full and frank testimony, and
reduce the scope of the s. 13 protection that previously compelled
witnesses have had since R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609.
In
this case, N was statutorily compellable to be examined for discovery, and
therefore “compelled” within the meaning of Henry and for the purposes
of s. 13. Whether he freely decided to attend the discovery proceeding is
irrelevant because rule 31.04(2) of the Ontario Rules of Civil
Procedure compels a defendant in a civil action to be examined for
discovery. Failing to file a statement of defence would not have allowed N to
avoid coming within the grasp of the procedural rules that would compel his
evidence, so whether he was actually noted in default is irrelevant. Despite
the rather blatant inconsistencies in his testimony, s. 13 dictates that
the truth‑seeking function of the trial give way to the right of the
accused against self‑incrimination.
Cases Cited
By Moldaver J.
Referred
to: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Kuldip, [1990] 3 S.C.R. 618; R.
v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Hibbert,
2002 SCC 39, [2002] 2 S.C.R. 445.
By LeBel J. (dissenting)
R.
v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; British Columbia Securities
Commission v. Branch, [1995] 2 S.C.R. 3; Dubois v. The Queen, [1985] 2 S.C.R. 350; R.
v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157; Attorney
General for Quebec v. Begin, [1955] S.C.R. 593; Curr v. The Queen,
[1972] S.C.R. 889; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Mannion,
[1986] 2 S.C.R. 272; R. v. Allen, 2003 SCC 18, [2003] 1 S.C.R. 223; Ontario
(Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Copthorne
Holdings Ltd. v. Canada, 2011 SCC 63, [2011] 3 S.C.R. 721.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985,
c. C-5, s. 5 .
Canadian Charter of Rights and Freedoms,
ss. 11 (c), 13 .
Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, r. 31.04(2).
Authors Cited
Paciocco, David M., and Lee Stuesser. The Law of Evidence,
6th ed. Toronto: Irwin Law, 2011.
Sankoff, Peter. “R. v. Nedelcu: The Role of Compulsion in
Excluding Incriminating Prior Testimony under Section 13 of the Charter ”
(2011), 83 C.R. (6th) 55.
Stewart, Hamish. “Henry in the Supreme Court of Canada: Reorienting
the s. 13 Right against Self‑incrimination” (2006), 34 C.R. (6th)
112.
APPEAL
from a judgment of the Ontario Court of Appeal (Weiler, MacPherson and
Armstrong JJ.A.), 2011 ONCA 143, 276 O.A.C. 106, 269 C.C.C. (3d) 1, 83
C.R. (6th) 41, 227 C.R.R. (2d) 364, 7 M.V.R. (6th) 10, 5 C.P.C. (7th) 16, [2011]
O.J. No. 795 (QL), 2011 CarswellOnt 1090, setting aside the conviction for
dangerous driving causing bodily harm entered by O’Connor J. (2007), 60 M.V.R.
(5th) 186, 2007 CanLII 54970, [2007] O.J. No. 4906 (QL), 2007 CarswellOnt
8205, and ordering a new trial. Appeal allowed, LeBel, Fish and Cromwell JJ.
dissenting.
Michal Fairburn and Randy
Schwartz, for the appellant.
P. Andras Schreck and Candice Suter, for the respondent.
Sylvain Leboeuf and Gilles
Laporte, for the intervener the Attorney General of Quebec.
Barbara A. McIsaac, Q.C., Jacquie El‑Chammas and Frank Addario,
for the intervener the Advocates’ Society.
Scott C. Hutchison and Edward Marrocco, for the intervener the Criminal Lawyers’
Association (Ontario).
The
judgment of McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and
Karakatsanis JJ. was delivered by
[1]
Moldaver J. — I have had the privilege of reading Justice LeBel’s reasons for
judgment and I agree with him on the issue of compulsion. In particular, I
accept his conclusion, at para. 109, that Mr. Nedelcu “was statutorily
compellable, and therefore ‘compelled’ . . . for the purposes of s. 13 [of the Canadian
Charter of Rights and Freedoms ]” to testify at his examination for
discovery in the civil action.
[2]
Where I part company with my colleague is on the
interpretation of s. 13 and in particular, its application to the facts of this
case. In my respectful view, s. 13 was never meant to apply to a case such as
this — and I am convinced it does not. This Court’s decision in R. v. Henry,
2005 SCC 76, [2005] 3 S.C.R. 609, does not provide otherwise.
[3]
My colleague has canvassed Henry in
detail and I see no need to retrace his steps. Fundamentally, as he observes
at para. 81 of his reasons, the Court in Henry outlined “a unified
approach to s. 13 , one based on the historical rationale underlying s. 13 — the
quid pro quo”. I take no issue with that observation.
[4]
The difficulty I have with the present case is
that there was no “quid” for there to be a “quo” — and hence, in
my view, s. 13 was never engaged. I would accordingly allow the appeal.
[5]
Section 13 of the Charter reads as
follows:
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.
[6]
As I read the section, the “quid” that
forms the critical first branch of the historical rationale, refers to
“incriminating evidence” the witness has given at a prior proceeding in which
the witness could not refuse to answer. The section does not refer to all
manner of evidence the witness has given at the prior proceeding. It refers to
“incriminating evidence” the witness has given under compulsion.
[7]
The “quo” refers to the state’s side of
the bargain. In return for having compelled the witness to testify, to the
extent the witness has provided “incriminating evidence”, the state undertakes
that it will not use that evidence to incriminate the witness in any
other proceeding, except in a prosecution for perjury or for the giving of
contradictory evidence.
[8]
Thus, a party seeking to invoke s. 13 must first
establish that he or she gave “incriminating evidence” under compulsion at the
prior proceeding. If the party fails to meet these twin requirements, s. 13 is
not engaged and that ends the matter.
[9]
What then is “incriminating evidence”? The
answer, I believe, should be straightforward. In my view, it can only mean
evidence given by the witness at the prior proceeding that the Crown could use
at the subsequent proceeding, if it were permitted to do so, to prove guilt,
i.e., to prove or assist in proving one or more of the essential elements of
the offence for which the witness is being tried.
[10]
In Henry, at para. 25, Justice Binnie
adopted the following definition of “incriminating evidence” from this Court’s
earlier decision in R. v. Kuldip, [1990] 3 S.C.R. 618, at p. 633:
“Incriminating evidence means ‘something “from which a trier of fact may infer
that an accused is guilty of the crime charged”’”.
[11]
While that definition of “incriminating
evidence” is framed somewhat differently than the definition I am proposing,
one thing is clear — the Kuldip definition did not include evidence from
the prior proceeding that the Crown wished to use for the sole purpose of
impeaching the witness’s testimony at the subsequent proceeding. Indeed, Kuldip
affirmed, without qualification, that the witness’s evidence from the prior
proceeding could be used for that purpose. And that is how things stood for 12
years, until 2002, when this Court in R. v. Noël, 2002 SCC 67, [2002] 3
S.C.R. 433, qualified the rule — correctly in my view — in a way that
does not read the words “incriminating evidence” out of s. 13 . At para. 47 of Noël,
Arbour J. stated, for the majority:
If
the original evidence was not incriminating, the quid pro quo was never
engaged, and the witness cannot ask of the state that he be prevented from
being cross-examined as to his credibility should he assert matters differently
in a subsequent proceeding, even if the ultimate effect of that subsequent
cross-examination may be adverse to his interest. This is consistent with the
language of s. 13 which grants to every witness the right not to have any “incriminating
evidence so given used to incriminate that witness in any other
proceedings”. [Emphasis in original.]
[12]
The pertinent facts in Noël are
straightforward. Noël was called as a Crown witness at his brother’s trial for
murder. In his testimony at that trial, he admitted to being his brother’s
accomplice in the murder of a little boy. Noël was later charged with the same
murder. At his trial, he took the stand and denied any participation in the
murder. The Crown was then permitted to cross-examine him at length on the
incriminating statements he had made during his brother’s trial.
[13]
Arbour J., writing for the majority, ruled that the cross-examination
was improper and in violation of Noël’s rights under s. 13 of the Charter
because “the risk of misuse of the incriminating evidence given by [Noël] at
his brother’s trial, [though] introduced . . . purportedly to challenge his
credibility, was overwhelming and could not have been alleviated by any
instructions” (para. 20).
[14]
The evidence given by Noël at his brother’s trial fits squarely
within the meaning of “incriminating evidence” as I have defined it. His
admission that he participated with his brother in the murder of a young boy
was clearly evidence that the Crown could have led at Noël’s trial, if
permitted to do so, to prove his guilt on the charge of murder for which he was
now being tried. And it is because the evidence was “incriminating” that it
passed the first step (the “quid”) required to trigger the application
of s. 13 .
[15]
There are two schools of thought as to whether
the use of Noël’s testimony from his brother’s trial to impeach his
testimony at his own trial can be distinguished from its use to incriminate
him. That is a debate upon which reasonable people can and do disagree. I
need not engage in it here. For present purposes, suffice it to say that if
the evidence used to impeach meets the test for “incriminating evidence” as I
have defined it, then I am prepared to accept, per Henry, at para. 50,
that in practice it may be difficult for triers of fact to work with that
distinction. Hence, the Crown should not be able to use it for any purpose at
the witness’s subsequent trial. That in my view is the “quo” that forms
the second half of s. 13 . Apart from using it in a prosecution for perjury or
for giving contradictory evidence, it will be off limits to the Crown.
[16]
The law is clear and I accept it to be so, that
the time for determining whether the evidence given at the prior proceeding may
properly be characterized as “incriminating evidence” is the time when the
Crown seeks to use it at the subsequent hearing. (See Dubois v. The Queen,
[1985] 2 S.C.R. 350, at pp. 363-64.) That, however, does not detract from my
contention that the evidence to which s. 13 is directed is not “any evidence”
the witness may have been compelled to give at the prior proceeding, but
evidence that the Crown could use at the subsequent proceeding, if permitted to
do so, to prove the witness’s guilt on the charge for which he or she is being
tried.
[17]
In so concluding, I recognize that there will be
instances where evidence given at the prior proceeding, though seemingly
innocuous or exculpatory at the time, may become “incriminating evidence” at
the subsequent proceeding, thereby triggering the application of s. 13 .
[18]
Take for example, the witness who, at the trial
of a third party for robbery, admits to having been present at the scene of the
crime but denies any involvement in it. If the witness is subsequently charged
with the same robbery and testifies that he was not present when the robbery
occurred, his evidence from the prior proceeding, though innocuous at the time,
will have taken on new meaning. For purposes of s. 13 , it would now be treated
as “incriminating evidence” because it is evidence that the Crown could use at
the witness’s robbery trial, if permitted to do so, to prove the essential
element of identity. And that is where s. 13 comes in. It precludes the Crown
from introducing it for any purpose, whether as part of its case to prove
identity or as a means of impeaching the witness’s testimony.
[19]
Manifestly, I take a different view where the
evidence given by the witness at the prior proceeding could not be used by the
Crown at the subsequent proceeding to prove the witness’s guilt on the charge
for which he or she is being tried. In such circumstances, because the prior
evidence is not “incriminating evidence”, there can be no “quid” for
purposes of s. 13 — and because there is no “quid”, no “quo” is
owed in return. The case at hand provides a classic example of this.
[20]
On its own, Mr. Nedelcu’s “I . . . remember
nothing” testimony from his discovery could not have been used by the Crown to
prove or assist in proving one or more of the essential elements of the
criminal charges he was facing — dangerous driving causing bodily harm and
impaired driving causing bodily harm. I say “on its own” because in theory, if
the Crown were able to prove that Mr. Nedelcu had concocted his discovery
evidence with a view to deliberately misleading the court and obstructing the
course of justice, that finding would constitute evidence of consciousness of
guilt from which the trier of fact could, if it chose to, infer guilt.
[21]
But realistically, that scenario is one with
which we need not be concerned. Any attempt on the Crown’s part to convert Mr.
Nedelcu’s “non-incriminating” evidence from the discovery into potentially
“incriminating evidence” at his criminal trial would trigger the application of
s. 13 and the protection afforded by it. And that would be self-defeating. It
would disentitle the Crown from being able to use Mr. Nedelcu’s
“non-incriminating” discovery evidence for impeachment purposes — the sole
purpose of the exercise. In short, the Crown would know that it could not
suggest in cross-examination that the prior evidence had been concocted, nor
could it lead any evidence to that effect.
[22]
The mere possibility that evidence, which is
otherwise “non-incriminating”, can be converted into “incriminating” evidence
if the Crown were to take the added steps needed to make it so, is not enough
to trigger the application of s. 13 . The use of Mr. Nedelcu’s discovery
evidence to test his credibility, and nothing else, could not convert his
discovery evidence into incriminating evidence. The discovery evidence would
retain its original characteristics and it would not become evidence from which
the triers of fact could infer guilt.
[23]
While it is true that Mr. Nedelcu’s inconsistent
discovery evidence might lead the triers of fact to reject his trial testimony,
rejection of an accused’s testimony does not create evidence for the Crown —
any more than the rejection of an accused’s alibi evidence does, absent a
finding on independent evidence, that the alibi has been concocted. (See R.
v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 61-67.) As Arbour
J. observed at para. 67 of Hibbert:
A
disbelieved alibi is insufficient to support an inference of concoction or
deliberate fabrication. There must be other evidence from which a reasonable
jury could conclude that the alibi was deliberately fabricated and that the
accused was involved in that attempt to mislead the jury.
[24]
In the present context, it would of course be
incumbent on trial judges to provide juries with clear instructions as to the
use they could make of the evidence given at the prior proceeding, similar to
the instructions that trial judges have been providing in cases where an accused
has given alibi evidence. Thus, in Mr. Nedelcu’s case, unless he were to adopt
his discovery evidence, the jury would be told that they could not use his
discovery evidence for its truth, but only to test his credibility and for no
other purpose. The jury would also be told that if they were to reject Mr.
Nedelcu’s trial evidence, they could not use that rejection to bolster the
Crown’s case. They would simply remove Mr. Nedelcu’s evidence from their
consideration. To convict, the jury would have to be satisfied, on the basis
of the remaining evidence, that the Crown had proved its case beyond a
reasonable doubt.
[25]
In sum, I am satisfied that the use of Mr.
Nedelcu’s non-incriminating discovery evidence for impeachment purposes, and
nothing else, could not and did not trigger the application of s. 13 .
[26]
In my respectful view, Henry could not
have meant something different. In concluding that a witness’s testimony from
a prior proceeding could not be used to impeach that witness in a subsequent
proceeding, the Court must have been referring to “incriminating evidence”
being used for that purpose; it could not have been referring to
“non-incriminating” evidence since s. 13 does not concern itself with that type
of evidence.
[27]
To take an obvious example, assume that at a
prior proceeding, a witness has testified, as part of the narrative, that she
got up at 10:00 a.m., had breakfast, went to the corner store for a paper and
then returned home. Assume further that none of that information has any
bearing on the crime of robbery she is alleged to have committed at 5:00 p.m.
later that day. At her subsequent robbery trial, some three years later, she
states in chief that she awoke at noon, had nothing to eat and stayed home
until 3:00 p.m. As for the robbery itself, she admits to having been at the
robbery scene but claims that she could not have been the robber because she
was wearing a pink coat that day and all of the witnesses have described the
robber as wearing a black coat.
[28]
On that example, surely the Crown would not be
precluded, on the basis of Henry, from cross-examining on the apparent
inconsistencies relating to her morning activities, with a view to testing the
witness’s powers of recollection and hence, the overall credibility and
reliability of her testimony — particularly as to her ability to remember what
she was wearing at the time of the robbery. Using non-incriminating evidence
for impeachment purposes does not engage s. 13 . And I do not read Henry
as holding otherwise, even though some of the language used could leave that
impression. At para. 50, Binnie J. states: “. . . the prior compelled
evidence [of the witness] should, under s. 13 . . ., be treated as inadmissible
in evidence against the accused, even for the ostensible purpose of challenging
his or her credibility, and be restricted (in the words of s. 13 itself) to ‘a
prosecution for perjury or for the giving of contradictory evidence’” (italics
in original).
[29]
While Justice Binnie speaks only of “prior
compelled evidence”, s. 13 is concerned with prior “incriminating evidence”
that has been compelled. It should not be interpreted as referring to
“compelled” evidence of any kind — and certainly not compelled evidence
that was neither incriminating at the time it was given nor incriminating at
the witness’s subsequent trial. Using Justice Binnie’s definition of
“incriminating evidence” as “something ‘from which a trier of fact may infer
that an accused is guilty of the crime charged’” (Henry, para. 25), Mr.
Nedelcu’s discovery evidence fails to meet that test.
[30]
In this case, the Crown sought to use Mr.
Nedelcu’s “non-incriminating” prior discovery evidence to impeach him. The use
of his non-incriminating discovery evidence for that purpose did not convert it
into incriminating evidence, i.e., evidence that the Crown could use, if
permitted to do so, to prove or assist in proving one or more of the essential
elements of the offences upon which Mr. Nedelcu was being tried. As such, s.
13 was not engaged. There was no “quid” and, therefore, no “quo”
for the state to honour.
[31]
My colleague, Justice LeBel, takes issue with my
conclusion that s. 13 is not engaged here. He maintains that I have
misconstrued Henry and misinterpreted s. 13 . He predicts that the
interpretation of s. 13 to which I ascribe will lead to confusion and
unpredictability. Courts will be inundated with time-consuming voir dires;
the scope of s. 13 will be rendered dubious in theory and uncertain in
practice; and the objective of the quid pro quo, which is to encourage
full and frank testimony, will be undermined.
[32]
I propose to address each of these concerns in
brief compass.
[33]
But first, let me deal with the suggestion that
the way in which I interpret s. 13 was not raised by any of the parties or
interveners and that it is “entirely contrary to Crown counsel’s submissions
before this Court” (para. 127).
[34]
At para. 56 of their factum, Ms. Fairburn and
Mr. Schwartz, on behalf of the Crown, wrote:
Mr. Nedelcu’s discovery evidence would not even
have the potential to incriminate. Properly conceptualized, his discovery
evidence was non-evidence: I remember nothing. Query whether at common
law he could have asserted his silence in relation to this non-evidence. What
is incriminating about remembering nothing? Nothing. If the Henry
interpretation of s. 13 extends even to non-evidence, through the conduit of
compulsion, with great respect, this signals a need for change. [Italics in
original; underlining added; footnote omitted.]
[35]
My reasons address this very issue. They make
clear that Henry did not extend the protection of s. 13 to
non-incriminating evidence — and that those who believed it had were mistaken.
While some might like to read the words “incriminating evidence” out of s. 13 ,
the Court in Henry did no such thing.
[36]
Turning to my colleague’s prediction that the
construction I place on s. 13 will lead to uncertainty and time-consuming voir
dires, unlike my colleague, I expect that trial judges will have little
trouble discerning whether evidence given by the accused as a witness in a
prior proceeding is “incriminating” evidence — that is, evidence that the Crown
could use, if permitted to do so, to prove guilt.
[37]
Under the test I have proposed, trial judges are
not given a discretion. The only added burden on the court will be to qualify
the evidence as incriminating or not — hardly a difficult or time-consuming
task. Where the evidence the Crown seeks to introduce could be used by the
Crown, if it were permitted to do so, to prove guilt — i.e., to prove or assist
in proving one or more of the essential elements of the offence for which the
witness is being tried — it is not admissible under s. 13 for any purpose
(other than a prosecution for perjury or giving contradictory evidence).
[38]
In sum, far from opening the voir dire
floodgates, I am confident that trial judges will have little difficulty
deciding whether evidence put forward by the Crown meets the test for
“incriminating” evidence as I have defined it.
[39]
That brings me to the last of my colleague’s
concerns — that in construing s. 13 as I have, the objective of the quid pro
quo, which is to encourage full and frank testimony, will be undermined.
[40]
With respect, I do not agree. Full and frank
testimony presupposes a witness who wants to tell the truth but is afraid to do
so lest the evidence be used to incriminate him at a subsequent proceeding. It
does not presuppose a witness who is bent on giving false testimony.
[41]
Be that as it may, on my construction of s. 13 ,
neither the truthful witness nor the perjurer need be concerned that any
incriminating evidence given by them at a prior proceeding will be used against
them, for any purpose, at a subsequent proceeding (the perjurer need only fear
a prosecution for perjury or for giving contradictory evidence). Thus, the
witness who sincerely wants to tell the truth — that is, make full and frank
disclosure — need not fear any repercussions. He or she will gain the full
protection of s. 13 , and the bargain contemplated by s. 13 will have
been fulfilled.
[42]
I do not gainsay the possibility that construing
s. 13 as I have may impinge ever so slightly on the clarity and predictability
that my colleague considers all-important. Clarity and predictability are
laudable goals, to be sure — but they should not be pursued at the expense of
rewriting s. 13 to remove critical words that alter the meaning of the section
and impermissibly extend its protection beyond its intended purpose.
[43]
I would accordingly allow the appeal, set aside
the order for a new trial and restore the guilty verdict on the charge of
dangerous driving causing bodily harm.
The
reasons of LeBel, Fish and Cromwell JJ. were delivered by
[44]
LeBel J. (dissenting) — The
right against self-incrimination is a principle that lies at the heart of our justice
system and is enshrined in the Canadian Charter of Rights and Freedoms .
A specific form of protection against self-incrimination is the right against
testimonial self-incrimination provided for in s. 13 of the Charter .
Section 13 protects a witness who gives evidence in any proceeding from
having that evidence used against him or her in a subsequent proceeding. This Charter
guarantee has engendered many decisions of this Court, the latest significant
pronouncement being R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609.
[45]
The Crown asks this Court to reconsider the s.
13 principles it unanimously espoused in Henry. For the reasons that
follow, I would decline to do so. I would therefore dismiss the appeal.
I. Introduction
[46]
This appeal arises out of a guilty verdict for
dangerous driving causing bodily harm ((2007), 60 M.V.R. (5th) 186). The
Ontario Court of Appeal set aside the respondent’s guilty verdict and ordered a
new trial on the basis of this Court’s decision in Henry (2011 ONCA 143,
276 O.A.C. 106).
[47]
At his criminal trial, the respondent was
cross-examined on inconsistent statements he had previously made during
discovery in a tort action brought against him in relation to the same
incident. After his cross-examination, it became clear to all the parties,
including the respondent’s own counsel and the trial judge, that the
respondent’s entire testimony was unreliable and had to be disregarded. He was
found guilty on one count of dangerous driving.
[48]
The issue is whether, at his criminal trial, the
Crown could cross-examine the respondent on statements he had made during
discovery in a civil action without infringing his right against
self-incrimination. In my view, the Court of Appeal correctly applied Henry in
holding that the respondent could not be cross-examined on these statements.
Therefore, the appeal must be dismissed.
II. Facts
[49]
The respondent and the victim worked together.
After work one evening, at around 6:30 p.m., the respondent took the victim for
a ride on his motorcycle on their employer’s property. The motorcycle crashed
into a curb, and both the victim and the respondent were thrown from it. The
victim was not wearing a helmet, and the accident caused him permanent brain
damage. The respondent sustained minor injuries and was hospitalized overnight.
[50]
The respondent was charged with dangerous
driving causing bodily harm and impaired driving causing bodily harm. The
respondent was also sued in a civil action by the victim and his family. He was
examined for discovery as part of the civil proceedings. During his examination
for discovery, he testified that he had no memory of the events from 5:00 p.m.
on the day of the accident to the following day at 11:00 a.m., when he woke up
in the hospital. Fourteen months later, at his criminal trial, however, he gave
a detailed account of the accident and the events leading up to it.
[51]
The Crown sought leave to cross-examine the
respondent on his discovery evidence. After a voir dire, the trial judge
ruled that the discovery evidence could be put to the respondent in
cross-examination for the purpose of impeaching his credibility. The respondent
was ultimately found guilty of dangerous driving causing bodily harm. On the
basis of Henry, the Ontario Court of Appeal overturned the trial judge’s
ruling, set aside the respondent’s conviction and ordered a new trial.
III. Judicial History
A. Superior Court of Justice
(1) The Charge
[52]
The respondent testified in his own defence. In
his testimony, he gave a detailed account of the events of that day leading up
to and during the accident. In cross-examination, on being asked about his
memory of the events, he stated, “I have a recollection about 90, 95 percent”
(A.R., vol. II, at p. 215).
[53]
Before Crown counsel began her
cross-examination, a police officer handed her a transcript of the respondent’s
examination for discovery from the civil proceeding, apparently provided by the
victim’s counsel. The transcript indicated that the respondent had denied
remembering anything about the accident in his discovery evidence:
Q. And when did you first see Victor on July
30th, 2004?
A. When I see him?
Q. The first time.
A. I don’t see him in that night. He come
around 5 o’clock, but I don’t remember nothing from before that, so I--last
things I remember was 5 o’clock when I finish one job on the line. I don’t
remember when I was going to the shop. I don’t--don’t remember when I was
putting my tools away. I don’t remember when we’re drinking after.
Q. Do you have any memory after 5--or, sorry.
What is your first memory after 5 o’clock p.m. on July 30th?
A. Eleven o’clock next day when I was in the
hospital.
Q. So, July 31st?
A. Exact.
Q. Eleven o’clock in the morning or the
evening?
A. In
the morning when I get out from the ER. Shortly after that, they take me out
of--from the--10:30, 11. I’m not sure. [A.R., vol. I, at p. 99]
[54]
At the conclusion of her cross-examination, and
based on the inconsistent evidence regarding the respondent’s memory of the
events, Crown counsel sought leave to cross-examine the respondent on his discovery
evidence.
(2) Ruling on the Voir
Dire (Ontario Superior Court of Justice (2007), 41 C.P.C. (6th) 357)
[55]
After reviewing this Court’s decision in Henry,
the trial judge found that s. 13 protection applies only in relation to prior
compelled testimony and cannot be invoked if the prior testimony was given
voluntarily.
[56]
In determining whether the respondent’s
discovery evidence was compelled, he noted that parties to a civil action in
Ontario are obligated to attend examinations for discovery and provide answers
under oath, and that discovery evidence is therefore statutorily compelled
evidence under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
However, in his view there was a difference between evidence given in a civil
proceeding and in a criminal proceeding.
[57]
According to the trial judge, the differences in
character, purpose and philosophy between civil and criminal proceedings must
be taken into account when applying the Charter to exclude evidence
obtained in a civil action. While civil discovery is meant to eliminate issues
not seriously contested, to ensure that all relevant evidence is disclosed and
to expose groundless claims, criminal investigations have “a public,
justice-oriented purpose” (para. 24).
[58]
The trial judge quoted with approval a passage
from British Columbia Securities Commission v. Branch, [1995] 2 S.C.R.
3, in which this Court had stated that, to qualify as having a “valid public
purpose”, compelled testimony in a criminal context must be aimed at obtaining
evidence in furtherance of the prosecution (para. 24). Referring to this
Court’s decision in Henry, he stated that s. 13 must be analyzed
purposefully, within the context of the “bargain” at its heart, known as the “quid
pro quo”, which protects a witness who is compelled to testify. He
explained the quid pro quo as follows: “. . . when a person is compelled
to testify in a court proceeding and exposes himself to the risk of
self-incrimination, the section provides protection against the subsequent use
of his evidence against him” (para. 13). In his view, however, “[t]he
fact-gathering discovery exercise, although statutorily compelled, lacks the
State-compelled incriminatory features discussed in [Henry]” (para. 26).
He therefore concluded that s. 13 of the Charter did not protect the
accused from the use of discovery testimony to impeach his credibility, as
there was no quid pro quo with the state:
Mr.
Nedelcu’s prior discovery testimony is potentially relevant to the issue of his
credibility as it seems to contradict his testimony at trial. It is deemed to
be a verbatim account of what he said at his examination for discovery, in that
it is certified by a qualified court reporter to be an accurate transcription
of his words. He has not taken the position that transcription of his testimony
on discovery is inaccurate. The use the Crown seeks to make of the evidence is
the permitted one of assessing credibility only and not the prohibited purpose
of incrimination. Accordingly, I have found its use is not prohibited by s. 13
of the Charter . [para. 49]
In the trial judge’s
view, therefore, the use of the respondent’s prior evidence to assess
credibility was permissible under s. 13 . I note that the Crown concedes that
the trial judge erred in his approach to s. 13 . The parties agree that s. 13
is engaged when evidence is compelled in any proceeding, regardless of
whether the evidence elicited in the first proceeding assists the Crown: see
A.F., at paras. 44-47, and R.F., at para. 30.
[59]
Finally, the trial judge noted that excluding
the evidence of a prior inconsistent statement in this case could lead to
“significant mischief” (para. 50). It would allow the accused to tender
different evidence in his civil and criminal trials: “With impunity, he could
tailor his evidence to suit his needs in each particular proceeding” (para.
50).
[60]
Accordingly, the trial judge granted the Crown’s
application to cross-examine the respondent on his civil discovery evidence.
(3) Verdict ((2007), 60 M.V.R. (5th) 186)
[61]
The trial judge acquitted the respondent on the
impaired driving charge but found him guilty of dangerous driving causing
bodily harm. With respect to the effect of the Crown’s cross-examination on the
respondent’s credibility, the trial judge said,
Counsel for Mr. Nedelcu concedes the
obvious about his client’s credibility. At trial, Mr. Nedelcu recited a second
by second account of the motorcycle ride, the route they took, their speeds at
several locations, when and where he changed gears, when he applied the brakes
and the manoeuvres he undertook when he felt the bike going down. He attributed
the cause of the accident to Mr. Perdon, whom he said grabbed his shoulder, and
leaned in the wrong direction. However, upon his examination for discovery in
the related civil action brought by Mr. Perdon, Mr. Nedelcu testified he
had no recollection of anything whatsoever about the ride between when they got
on the bike and his waking up the next morning in the hospital.
. . .
Thus,
I have no difficulty acceding to his counsel’s position that Mr. Nedelcu’s
entire testimony should be considered unreliable. I disbelieve his evidence of
the events before and during the motorcycle ride and his evidence does not
leave me with a reasonable doubt about his guilt on either charge . . . .
[paras. 13 and 15]
B. Ontario Court of Appeal (2011 ONCA 143, 276 O.A.C.
106)
[62]
The Court of Appeal began its analysis by noting
that the latest guidance on s. 13 from this Court was in Henry, in which
the Court had reviewed its s. 13 jurisprudence. It noted that, in Henry,
the Court had quoted a passage from Dubois v. The Queen, [1985] 2 S.C.R.
350, at p. 358, to the effect that the purpose of s. 13 is to protect
individuals from being indirectly compelled to incriminate themselves,
therefore ensuring that the Crown will not be able to do indirectly what s. 11 (c)
of the Charter prohibits.
[63]
Armstrong J.A., writing for the Court of Appeal,
noted that, in Henry, this Court had abandoned the distinction made in
the earlier cases between prior testimony used to incriminate an accused and
prior testimony used to impeach the credibility of an accused because that
distinction was unrealistic. Further, according to Henry, only compelled
evidence is protected by s. 13 .
[64]
As to whether the respondent had been
“compelled” to testify on his examination for discovery, Armstrong J.A.
concluded that he had been. Although the respondent could have taken steps to
avoid testifying by seeking a stay of the civil action or an adjournment of the
examination for discovery until the conclusion of the criminal prosecution, the
Court of Appeal noted that such requests are granted only in exceptional
circumstances, none of which existed in the present case.
[65]
In the Court of Appeal’s view, the trial judge
had erred in his analysis of the quid pro quo. Armstrong J.A. stated
that there is nothing in the jurisprudence to suggest that s. 13 protection is
only engaged when a witness’s prior testimony “assisted the Crown” (para. 31).
If that were the case, the section would apply only to proceedings in which the
Crown was a party. However, s. 13 specifically states that protection is
afforded to “[a] witness who testifies in any proceedings”.
[66]
The Court of Appeal also found that the respondent
had not given his discovery evidence “to further his own private interest in a
civil action against him”, as the trial judge had characterized it. The
respondent was a defendant in a civil suit against him and, as such, he “was
compelled to testify on the examination for discovery solely for the benefit of
the plaintiffs” (para. 32).
[67]
Relying on statements made by the majority in R.
v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, and by the dissent in Dubois,
the Court of Appeal held that the distinction between criminal and non-criminal
interrogatories was not relevant to the appeal and that it was unnecessary to
consider whether such a distinction was supported by the cases referred to by
the trial judge.
[68]
Finally, the Court of Appeal rejected the Crown’s
argument that the observations made by Binnie J. in Juman v. Doucette,
2008 SCC 8, [2008] 1 S.C.R. 157, at para. 41, were determinative of the appeal.
Although, in Juman, this Court had quoted the voir dire reasons
of the trial judge in the case at bar, Armstrong J.A. noted that Juman
was decided in the context of determining the scope of the implied undertaking
rule in British Columbia. Armstrong J.A. pointed out that this Court was
discussing general categories of exceptions to the implied undertaking rule.
The fourth category, under which this trial decision was quoted, was entitled
“Impeaching Inconsistent Testimony”. There was no reference to the Charter
at this point in the judgment, and in fact, he noted, there was no Charter
issue before this Court in Juman at all. The Court of Appeal concluded
that, since this Court did not address s. 13 in Juman, “[t]here is
nothing in Juman which alters the ratio in Henry and therefore
there is nothing that alters its application to this case” (para. 45).
[69]
The Court of Appeal allowed the appeal, set
aside the respondent’s conviction and ordered a new trial.
IV. Analysis
A. Issues and Positions of the Parties
[70]
The Crown makes two main submissions. First, the
Crown contends that Henry should not apply to this case, because the
respondent’s civil discovery evidence was not “compelled” within the meaning of
Henry. In the alternative, it submits that Henry should be
overturned and that this Court should restore the distinction between using
prior testimony to impeach credibility and using it to incriminate.
[71]
The respondent, not surprisingly, maintains that
the approach in Henry applies to this case, because he was compelled to
give evidence on discovery. He also submits that Henry should not be
revisited.
[72]
Therefore the two issues for this Court to
decide are whether the respondent was “compelled” within the meaning of Henry
to give discovery evidence in relation to his civil case, and whether this
Court should overturn Henry or somehow revisit the principles laid out
in that case.
[73]
For the reasons that follow, I conclude that the
respondent was compelled to give evidence at his civil discovery within the
meaning of Henry and that Henry ought not to be altered or
overturned. I would therefore dismiss the appeal.
B. Constitutional Guarantee Against Self-Incrimination
[74]
The guarantee against self-incrimination is one
of the fundamental principles of our criminal justice system. As Binnie J.
noted in Henry, at para. 2, it has its historical roots in “the
revulsion that was felt over the ancient courts of Star Chamber, which would
detain suspected enemies of the state on mere suspicion, compel them to swear
an oath, and then require them on pain of punishment to answer questions”: see
D. M. Paciocco and L. Stuesser, The Law of Evidence (6th ed.
2011), at p. 283. Today, the right against self-incrimination is intimately
linked to the right to stand silent in the face of one’s accuser, to the
presumption of innocence and to the notion that the Crown must prove its case
beyond a reasonable doubt without any assistance from the accused.
[75]
Self-incrimination can be of two types:
testimonial and non-testimonial. Testimonial self-incrimination refers to using
oral evidence of the accused against the accused, either by forcing the accused
to testify at his or her own trial (covered by s. 11 (c) of the Charter ),
or by using prior testimony of the accused in another proceeding (embodied in
s. 13 of the Charter ). Non-testimonial self-incrimination refers to the
proffering of other types of incriminating evidence by the accused, such as
blood or breathalyzer samples: see, e.g., Attorney General for Quebec
v. Begin, [1955] S.C.R. 593; Curr v. The Queen, [1972] S.C.R. 889.
In the instant case, we are concerned with testimonial self-incrimination,
specifically the right enshrined in s. 13 .
[76]
Before the Charter came into force, the
protection against testimonial self-incrimination was provided for in s. 5 of
the Canada Evidence Act, R.S.C. 1985, c. C-5 . Section 5 currently
states:
5. (1) No
witness shall be excused from answering any question on the ground that the
answer to the question may tend to criminate him, or may tend to establish his
liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where
with respect to any question a witness objects to answer on the ground that his
answer may tend to criminate him, or may tend to establish his liability to a
civil proceeding at the instance of the Crown or of any person, and if but for
this Act, or the Act of any provincial legislature, the witness would therefore
have been excused from answering the question, then although the witness is by
reason of this Act or the provincial Act compelled to answer, the answer so
given shall not be used or admissible in evidence against him in any criminal
trial or other criminal proceeding against him thereafter taking place, other
than a prosecution for perjury in the giving of that evidence or for the giving
of contradictory evidence.
[77]
Therefore, s. 5(1) obliges a witness to answer
any question put to him or her, regardless of whether the answer will be
incriminating or give rise to civil liability. In exchange, however, s. 5(2)
offers protection against the subsequent use of that evidence to incriminate
the witness. This “bargain” is what has become known as the quid pro quo.
[78]
It is clear that the drafters of the Charter considered
s. 5 of the Canada Evidence Act when crafting s. 13 . As Binnie J. noted
in Henry, there is “a consensus that s. 13 was intended to extend s. 5
of the Canada Evidence Act ” (para. 23). Binnie J., relying on
statements in Dubois and Noël, also confirmed that s. 13 is not
limited to questions a witness might have been entitled to refuse to answer at
common law and that s. 13 is intimately linked, although not necessarily
limited to, the traditional role and function of s. 5 of the Canada Evidence
Act . Although s. 5(2) requires the witness to specifically invoke its protection,
s. 13 contains no such requirement. Therefore, s. 13 of the Charter is
broader in application than s. 5 of the Canada Evidence Act , as Arbour
J. noted in Noël, at para. 53:
[R.
v. Mannion, [1986] 2 S.C.R. 272,] is a case where it is unlikely that the
accused would have sought the protection of the Canada Evidence Act when
he gave his original evidence since that evidence did not “tend to criminate”
him when it was given. In that sense s. 13 is an expansion of the statutory
protection, and one fully in line with the broad constitutional protection
against compulsory self-incrimination. [Emphasis added.]
[79]
Section 13 of the Charter states:
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.
[80]
Henry is this
Court’s most recent significant pronouncement on s. 13 . To determine whether we
should revisit its approach requires a closer look at what the Court actually
decided in that case.
C. Henry
[81]
As I stated at the outset, s. 13 of the Charter
has proven difficult for courts to apply, and even this Court has struggled to
define its contours consistently. In the face of inconsistent jurisprudence,
this Court decided Henry in 2005. It was a unanimous decision and was
intended to outline a unified approach to s. 13 , one based on the historical
rationale underlying s. 13 — the quid pro quo.
[82]
In Henry, the appellants had told a
different story under oath in their retrial on a charge of first degree murder
than at their first trial five years earlier. They were cross-examined on these
prior inconsistent statements at the retrial and were again convicted of first
degree murder. They appealed, claiming that this use of prior statements
violated their s. 13 rights.
[83]
Binnie J., writing for the Court, began his
analysis by noting that “[t]he consistent theme in the s. 13 jurisprudence is
that ‘the purpose of s. 13 . . . is to protect individuals from being
indirectly compelled to incriminate themselves’” (para. 22, citing Dubois,
at p. 358). In setting the tone for the analysis that followed, he quoted
Arbour J. in Noël:
Section
13 reflects a long-standing form of statutory protection against compulsory
self-incrimination in Canadian law, and is best understood by reference to s. 5
of the Canada Evidence Act . Like the statutory protection, the
constitutional one represents what Fish J.A. called a quid pro quo: when
a witness who is compelled to give evidence in a court proceeding is
exposed to the risk of self-incrimination, the state offers protection against
the subsequent use of that evidence against the witness in exchange for his or
her full and frank testimony. [Emphasis added by Binnie J.; para. 21.]
[84]
With respect to its scope, Binnie J. noted that
s. 13 precludes the use of “incriminating evidence” given in one proceeding to
“incriminate that witness” in a subsequent proceeding. He explained the meaning
of “incriminating evidence” by quoting from R. v. Kuldip, [1990] 3
S.C.R. 618, at p. 633, in which the Court had described it as “something ‘from
which a trier of fact may infer that an accused is guilty of the crime
charged’” (para. 25).
[85]
Given the lack of clarity in the s. 13 cases at
the time, Binnie J. carefully reviewed this Court’s s. 13 jurisprudence. He
discussed each case’s ratio and considered whether it was in line with
the fundamental quid pro quo principle underlying s. 13 .
[86]
He first considered Dubois. In that case,
the accused had testified at his first trial and made certain admissions. On a
retrial for the same offence, he chose not to testify or to call any evidence.
The Crown sought to enter the testimony of the accused from his first trial as
evidence in the retrial. This Court concluded that to use the prior testimony
of the accused as evidence against him in his retrial would be a violation of
his s. 13 right.
[87]
Two main holdings came out of Dubois. The
first is that a retrial of the same offence is considered “other proceedings”
within the meaning of s. 13 . The second — and the one most relevant to this
appeal — is that “[t]he focus of the right is on the second proceedings, the
time at which the previous testimony is sought to be used, rather than the time
at which it is given” (p. 361). Therefore, the Court noted, although s. 13
refers to the notion of incrimination, the evidence in issue need not be
incriminating at the time it is given. In light of the purpose of the section,
the incriminating nature of the evidence must be evaluated only in the context
of the second proceeding. For the purposes of s. 13 , incriminating evidence is
any evidence the Crown tenders as part of its case against the accused.
[88]
Binnie J. noted that the outcome in Dubois
was correct, and declined to revisit it.
[89]
Binnie J. then considered R. v. Mannion,
[1986] 2 S.C.R. 272, in which the Crown had attempted to use the accused’s
prior inconsistent testimony from the first trial in the cross-examination of
an accused at a retrial. The accused had chosen to testify twice and had
changed his evidence from the first trial to the second. In Mannion, the
Court had held that the cross-examination on his prior evidence was improper.
[90]
Binnie J. noted that, in Mannion, the
Court had focused on the purpose of the cross-examination (incrimination)
rather than on the purpose of s. 13 (protection against compelled
self-incrimination). He stated that, although the Court had concluded that Dubois
dictated the outcome in Mannion, the Court had not commented on a key
distinction: Dubois was a compelled witness at the second trial (since he had
chosen not to testify), while Mannion had testified voluntarily at both trials.
[91]
This distinction was key to understanding the quid
pro quo principle underlying s. 13 , and therefore to understanding s. 13 ’s
proper application. Binnie J. explained it in this way, at para. 42:
In
Dubois, the prosecution sought to pre-empt the right of the accused not
to testify. The filing of the earlier testimony was compelled
self-incrimination. In Mannion, there was no such compulsion. The
accused freely testified at his first trial and freely testified at his second
trial. The compulsion, which lies at the root of the quid pro quo which
in turn lies at the root of s. 13 , was missing. Experience in the 20 years
since Dubois and Mannion were decided shows that taking our eye
off the underlying purpose of s. 13 has given rise to a number of distinctions
and sub-distinctions that in the end have proven unworkable.
One such unworkable
distinction was the one “between use of prior statements for the impeachment of
credibility and use of prior statements for the purpose of incrimination”
(para. 42).
[92]
In Henry, the Court overruled Mannion
for three main reasons. First, it had not been guided by the quid pro
quo principle underlying s. 13 . Second, failing to adhere to s. 13 ’s
purpose had created distinctions between impeachment of credibility and
incrimination that were unworkable in practice. In Henry, the Court did
away with those distinctions and properly returned the focus to the quid pro
quo: compelled testimony in exchange for s. 13 protection against
subsequent use of that testimony against the accused. Third, Mannion had
led to an unprincipled distinction between an accused who voluntarily testified
at his or her trial and retrial and an accused who was not an accused but a
compellable witness in the first proceeding. By returning to the quid pro
quo in Henry, the Court restored the balance: it strengthened a compellable
witness’s s. 13 protection while taking s. 13 protection away from an accused
who has volunteered evidence in his or her own defence (para. 60). This was
justified because, as Binnie J. noted,
[a]ccused
persons who testify at their first trial and then volunteer inconsistent
testimony at the retrial on the same charge are in no need of protection “from
being indirectly compelled to incriminate themselves” in any relevant sense of
the word, and s. 13 protection should not be available to them. [Emphasis
deleted; para. 47.]
[93]
Next, Binnie J. considered Kuldip, in
which the accused, as in Mannion, had volunteered inconsistent testimony
at his trial and at his retrial. In Kuldip, however, the Court had distinguished
Mannion on the basis that the Crown was seeking to cross-examine the
accused on his prior evidence for the purpose of impeachment and not for the
purpose of incrimination. On the basis of this distinction, the Court held in Kuldip
that the cross-examination was proper.
[94]
Binnie J. noted that the result in Kuldip was
correct, although not for the reasons stated by the Court. It was correct,
rather, because the quid pro quo was not engaged. He reiterated that the
distinction between using prior evidence to impeach credibility and using it to
incriminate posed problems in practice. In making the point, he quoted Martin
J.A. from the Court of Appeal’s decision in R. v. Kuldip (1988),
40 C.C.C. (3d) 11, at para. 35:
Furthermore,
in my view, where the prior evidence is used ostensibly to impeach the
accused’s credibility only, it nevertheless does assist the Crown in its case
and, in a broad sense, may help to prove guilt. It is often difficult to draw a
clear line between cross-examination on the accused’s prior testimony for the
purpose of incriminating him and such cross-examination for the purpose of
impeaching his credibility. If the court concludes on the basis of the
accused’s contradictory statements that he deliberately lied on a material matter,
that lie could give rise to an inference of guilt. [Quoting the Court of Appeal
decision, at p. 23.]
[95]
Indeed, in the instant case, the Crown submits
that a prosecution for perjury or the giving of contradictory evidence would be
“an inadequate remedy for an acquittal” (A.F., at para. 75 (emphasis
added)). In other words, if a trier of fact were deprived of hearing prior
inconsistent evidence given by an accused, an acquittal could result. The
Crown therefore acknowledges that even evidence used solely for impeachment
purposes can make the difference between a conviction and an acquittal. How,
then, can one say that such evidence is not “incriminating” within the meaning
of s. 13 ?
[96]
Binnie J. then considered Noël. In that
case, the accused had been a compellable witness at his brother’s murder trial
and had given evidence that implicated himself in the offence. When he was
subsequently charged, he testified in his own defence and denied any
involvement in the murder.
[97]
Arbour J., writing for the majority in Noël,
held that the cross-examination on the earlier evidence of the accused was
impermissible. In doing so, she put the emphasis of the analysis back on the quid
pro quo:
.
. . when a witness who is compelled to give evidence in a court
proceeding is exposed to the risk of self-incrimination, the state offers
protection against the subsequent use of that evidence against the witness in
exchange for his or her full and frank testimony. If the evidence proffered is
less than full and frank, the witness is subject to prosecution for perjury or
for the related offence of giving contradictory testimony. [Emphasis added;
para. 21.]
[98]
Binnie J. affirmed Noël. However, he distanced himself from Arbour
J.’s comment that the Crown could be permitted to cross-examine an accused on
prior testimony only “when there is no possibility that the jury could use the
content of the prior testimony to draw an inference of guilt, except to the
limited extent that a finding that the accused has been untruthful under oath
could be damaging to his defence” (Noël, at para. 54). Instead, Binnie
J. concluded that, for the purposes of s. 13 , prior compelled testimony
should “be treated as inadmissible in evidence against the accused, even for the
ostensible purpose of challenging his or her credibility, and be restricted (in
the words of s. 13 itself) to ‘a prosecution for perjury or for the giving of
contradictory evidence’” (para. 50).
[99]
Finally, Binnie J. considered R. v. Allen,
2003 SCC 18, [2003] 1 S.C.R. 223, a case with facts similar to those of Noël.
The Court had applied Noël in an oral decision without much discussion.
Like Noël, the decision was based on the quid pro quo and was
affirmed in Henry.
[100]
As can be seen, two major themes that are
directly relevant to this appeal emerge from Henry. The first is that s.
13 only applies in situations in which the quid pro quo is engaged.
Under s. 13, the quid pro quo refers to a witness’s compelled
evidence in exchange for a guarantee that the Crown will not use that evidence
against that person in another proceeding. The second theme is that the
distinction between using prior testimony to impeach credibility and using it
to incriminate the accused should be abolished. I will comment briefly on these
two points and how they apply to the case before the Court.
D. Compelled Testimony
[101]
One of the Crown’s main submissions is that the
respondent was not “compelled” to testify at his examination for discovery in
the civil action against him in the sense described in Henry. The Crown
argues that the respondent was not subjectively compelled, because he freely
decided to attend the discovery proceeding [A.F., at para. 36], and that he was
not objectively compelled, because he chose to file a statement of defence and
to therefore put himself “within the grasp of the procedural rules . . . that
would, only then, compel his evidence” (A.F., at para. 37).
[102]
Although Binnie J. did not fully canvass what
constitutes “compelled” evidence in the Henry sense, he did note that an
accused who chooses to testify freely at his or her first trial and then at a
retrial is not “compelled” and so does not qualify for s. 13 protection (para.
43). He also stated parenthetically that “[f]or present purposes, evidence of
compellable witnesses should be treated as compelled even if their
attendance was not enforced by a subpoena” (para. 34 (emphasis added)).
[103]
Binnie J.’s observation that evidence from an
accused who decides to testify is “voluntary” simply means that, because
accused persons have a right not to be called to testify in their own defence
under s. 11 (c) of the Charter , any accused who chooses to testify
waives his or her right not to be compellable. In contrast, a witness who
voluntarily gives evidence at someone else’s trial is not giving evidence
“voluntarily” within the meaning of Henry even if the witness decides to
testify on his or her own volition, for example, to assist the accused. The
difference is this: An accused who testifies voluntarily is waiving a
constitutional right by choosing to testify. Any other witness can otherwise be
compelled, meaning the witness is statutorily compellable regardless of whether
he or she “volunteers” to take the stand. This view is confirmed by Binnie J.’s
observation that “evidence of compellable witnesses should be treated as
compelled even if their attendance was not enforced by a subpoena.”
[104]
Therefore, whether the respondent freely decided
to attend the discovery proceeding is irrelevant. Whether a witness was
compelled should not be determined on a subjective standard. It would be
unprincipled to give a lesser degree of Charter protection to a witness
who testifies willingly than to a witness who must be subpoenaed or otherwise
forced to give evidence, if both could have been statutorily compelled to
testify in any event. Therefore, to determine whether the quid pro quo
is engaged in a particular case, the court should consider whether the witness
was statutorily compellable and not whether the witness felt subjectively
compelled to testify. The relevant question is this: Was the respondent
statutorily compelled to give evidence in the proceeding?
[105]
The Crown’s second argument on compulsion is
that the respondent was not objectively compelled because he chose to file a
statement of defence, and therefore that he voluntarily put himself within the
grasp of the powers of civil discovery.
[106]
This argument must also fail. First, as noted by
the intervener Advocates’ Society, the integrity of the civil discovery process could be
undermined if courts considered that those who defend civil actions are not
“compelled” for the purposes of s. 13. Parties facing criminal proceedings
might then find it advantageous not to co-operate in any civil action, thereby
forcing the other party to obtain a court order compelling their testimony on
discovery.
[107]
More importantly,
however, there is a principled reason why a defendant who gives evidence in a
civil discovery proceeding is “compelled” for the purpose of s. 13. Again, the
relevant question to ask is: Was the respondent statutorily
compelled to give evidence in the proceeding? In this case, rule 31.04(2) of the Rules of Civil
Procedure is the statutory authority that compels a defendant in a civil
action to be examined for discovery whether or not the defendant files a
statement of defence:
31.04 . . .
(2) A party who seeks to examine a
defendant for discovery may serve a notice of examination under rule 34.04 or
written questions under rule 35.01 only after,
(a) the
defendant has delivered a statement of defence and, unless the parties agree
otherwise, the examining party has served an affidavit of documents; or
(b) the defendant has been noted
in default.
[108]
Therefore, failing to file a statement of
defence does not allow the respondent to “avoid coming within the grasp of the
procedural rules . . . that would, only then, compel his evidence”, as the
Crown asserts (A.F., at para. 37). Had the respondent failed to file a
statement of defence, the plaintiff could have noted him in default and then,
under rule 31.04(2)(b),
obliged him to be examined for discovery. I note that whether
the plaintiff actually took the step of noting the respondent in default is
irrelevant. Just as it does not matter for the purposes of s. 13 that a witness
who can be statutorily compelled to testify chooses to testify uncoerced, it
does not matter that a plaintiff does not resort to the available statutory
powers to compel a defendant to be examined for discovery. In either case,
there is a statutory route by which to compel the witness to give evidence.
This is what makes a witness compellable. Whether or not that route is actually
taken does not change the fact that it was available and could have been
taken.
[109]
I conclude, therefore, that the respondent was
statutorily compellable, and therefore “compelled” within the meaning of Henry
and for the purposes of s. 13.
E. Should the Court Revisit Henry?
[110]
Henry makes it
quite clear that the distinction between using prior compelled testimony to
impeach credibility and using it to incriminate the accused is unworkable. Even
using so-called “innocent statements” to expose inconsistencies in the
testimony of an accused will, as Martin J.A. said in Kuldip, “assist the
Crown in its case and, in a broad sense, may help to prove guilt” (p. 23).
Counsel for the respondent summarized this concern in oral argument before this
Court: “. . . the distinction doesn’t really exist between incriminating and impeaching.
If you are impeaching, you are advancing the Crown’s case. There may be an
inference of consciousness of guilt” (transcript, at p. 52).
[111]
I agree that, in the context of s. 13, there can
be no such distinction in practice. Any evidence that may assist the Crown in
proving its case, including evidence impeaching the credibility of the accused,
will have an incriminating effect and must therefore be subject to s. 13
protection.
[112]
It seems evident, therefore, that this
distinction is not compatible with the underlying purpose of s. 13 . One need
only go back to the cases in which the distinction was maintained to see just
how inconsistently — and at times arbitrarily — it was applied in practice.
There were undoubtedly accused persons whose s. 13 Charter rights were
unduly diminished under this approach. It is for this reason that the Court
abolished this problematic distinction in Henry.
[113]
The concerns expressed in Henry with
respect to the difference between using prior compelled testimony to impeach
credibility and using it to incriminate still exist. Should this Court
nevertheless revisit Henry on this point?
[114]
In Ontario (Attorney General) v. Fraser,
2011 SCC 20, [2011] 2 S.C.R. 3, at para. 58, a majority of this Court endorsed
Binnie J.’s observation in Henry, at para. 44, that “[t]he Court should
be particularly careful before reversing a precedent where the effect is to
diminish Charter protection.” Further, the majority in Fraser noted
that this Court should not overturn one of its own decisions lightly,
especially if the decision represents the considered views of a firm majority
and is of “recent vintage” (para. 57). In Copthorne Holdings Ltd. v. Canada,
2011 SCC 63, [2011] 3 S.C.R. 721, Rothstein J., writing for the Court, cited Fraser
with approval and stated that “[b]efore a court will entertain reversing a
recently decided decision, there must be substantial reasons to believe the
precedent was wrongly decided” (para. 57).
[115]
In my view, there are no substantial reasons to
believe Henry was wrongly decided. Nor are there any compelling or
principled reasons to reintroduce the distinction between impeachment and
incrimination, thereby reducing the scope of s. 13 of the Charter . Henry
is a fairly recent, unanimous decision of this Court, which has largely been
welcomed by the profession for providing predictability and simplifying the law
in this area: see, e.g., H. Stewart, “Henry in the Supreme Court of
Canada: Reorienting the s. 13 Right against Self-incrimination” (2006), 34 C.R.
(6th) 112; P. Sankoff, “R. v. Nedelcu: The Role of Compulsion in
Excluding Incriminating Prior Testimony under Section 13 of the Charter ”
(2011), 83 C.R. (6th) 55.
[116]
Nothing has changed since Henry, and it
should not be revisited.
F. Problem of Conflicting Testimony: Does Henry Apply?
[117]
The soundness of the Henry decision has
now been reaffirmed. There seems to be an argument, however, that the case at
bar is an unforeseen consequence of Henry and that Henry cannot
possibly apply given the rather blatant inconsistencies in the respondent’s
testimony.
[118]
The Crown submits that providing s. 13
protection for compelled testimony for all purposes allows accused persons to
tailor their evidence as they see fit and therefore impedes the truth-seeking
function of a criminal trial.
[119]
The response to this argument is that, in
adopting the Charter , we chose as a society to balance the truth-seeking
function of a criminal trial against the rights of the accused. Every day, this
function is balanced against other important objectives, such as preserving the
repute of the administration of justice by excluding unconstitutionally
obtained evidence.
[120]
The point here is that s. 13 is but one example
of how the truth-seeking function of a criminal trial is not pursued at all
costs. In this case, s. 13 dictates that the truth-seeking function of the
trial give way to the right of the accused against self-incrimination. This
limitation must be considered in light of the greater balancing of interests
embodied in the Charter .
[121]
The intervener Attorney General of Quebec also
expresses concerns about the truth-seeking function of a trial and puts forward
an alternative approach for determining whether an accused can be
cross-examined on prior evidence. In the intervener’s view, a voir dire
should be conducted in every case to determine whether the probative value of
the prior evidence outweighs its prejudicial effects.
[122]
This approach raises at least three problems.
First, it adds a layer of complexity to an already complicated trial process.
Second, such an approach is not required by the Charter . Third, and most
importantly, the weighing proposed by the intervener would have the effect of
compromising the s. 13 rights of the accused in some cases. The approach
proposed by the Attorney General of Quebec is therefore incompatible with Henry.
[123]
A further point is what I would describe as the
trial judge’s desire to avoid an unpalatable result. At para. 18 of his voir
dire reasons, he acknowledged that the respondent’s evidence seemed to meet
the Henry requirement of compellability; however, in his view, to apply Henry
without considering the context “could easily give rise to a form of
philosophical and practical dissonance that seems rather awkward, and perhaps
even perverse, in the result”. And he made the following observation at para.
50: “. . . if the introduction of the evidence is denied, a significant
mischief could ensue. . . . With impunity, [the accused] could tailor his
evidence to suit his needs in each particular proceeding.” Similarly, the Crown
asks in its factum, “Why would s. 13 of the Charter . . . protect [the
respondent] from impeachment in circumstances where there is clear evidence
that he has lied under oath?” (para. 48).
[124]
This Court was fully alive to this issue in Henry.
By eliminating the distinction between impeachment and incrimination, the Court
explicitly opened the door to this kind of result:
.
. . prior compelled evidence should, under s. 13 . . ., be treated as
inadmissible in evidence against the accused, even for the ostensible
purpose of challenging his or her credibility, and be restricted (in the
words of s. 13 itself) to “a prosecution for perjury or for the giving of
contradictory evidence”. [Italics in original; underlining added; para. 50.]
Therefore, this case
falls squarely within the expected outcomes of Henry.
[125]
As Binnie J. noted in Henry, prior
compelled evidence can be used in “a prosecution for perjury or for the giving
of contradictory evidence”. Laying criminal charges for perjury is the
appropriate way to deal with witnesses who “tailor [their] evidence to suit
[their] needs in each particular proceeding” without diluting the Charter rights
of the accused. This approach maintains respect for the administration of
justice while fully preserving the s. 13 right of the accused. The protection
afforded by s. 13 is not lost when a witness gives what is perceived to be
dishonest testimony. Although the quid pro quo is meant to encourage
full and frank evidence, it is not a “contract” with a witness that can be
nullified if the witness lies under oath: see Noël, at para. 24.
G. Reinterpretation and Reversal of Henry
[126]
I have had the benefit of reading Moldaver J.’s
reasons, and with respect, I cannot agree with his interpretation of Henry.
[127]
First, this proposed reading of Henry is
unsupported by the Court’s reasons in that case. Second, his interpretation
was not raised by any of the parties or interveners. Indeed, it is entirely
contrary to Crown counsel’s submissions before this Court. The Crown
acknowledged that it could not succeed without departing from its own
understanding of Henry, with which I agree. In counsel’s own words:
And
Ontario is here today appreciating and letting me say right now that Henry
creates a formidable hurdle on this appeal. I am not oblivious to that fact.
[Emphasis added; transcript, at p. 2.]
[128]
Third, my colleague’s approach dilutes Henry.
As I stated earlier in these reasons, Henry has been lauded as a
decision that brought predictability and clarity to a previously murky area of
law. This interpretation of Henry will again send the application of s.
13 into a state of confusion. It will cause uncertainty regarding the
s. 13 rights of an accused.
[129]
I am not aware of any decision since Henry
in which a court has inquired into whether the statements of an accused were
“innocent” or “incriminating” in order to determine whether s. 13 applied.
Courts will now have to conduct voir dires to make this determination,
which will both encumber the trial process and render the scope of s. 13
dubious in theory and uncertain in practice. Such uncertainty undermines the
objective of the quid pro quo, which is to encourage full and frank
testimony. Without knowing in advance how their evidence might be used in
future proceedings, witnesses will undoubtedly be less likely to display
candour, a consequence that is completely at odds with what this Court sought
to accomplish in Henry. This will also undoubtedly reduce the scope of
the s. 13 protection that previously compelled witnesses have had since Henry.
[130]
In Henry, Binnie J. recognized the
importance of ensuring predictability in the application of s. 13 . He
concluded his reasons by stating that the approach he proposed would avert the
“unpredictability inherent in sorting out attacks on credibility from attempts
at incrimination” (para. 60). In my view, my colleague’s opinion reintroduces
uncertainty by resurrecting the abandoned distinction, for s. 13 purposes,
between “innocuous” and “incriminating” evidence. Witnesses will be less
likely to testify truthfully if they do not know, when called to testify,
whether and to what extent the evidence they give will be admissible against
them in future proceedings.
[131]
The focus of Henry is on compulsion, not
on the nature of the statements. My colleague rightly points out that s. 13
refers to using “incriminating statements” to “incriminate”. However, this
Court found in Henry that drawing a distinction between using prior
compelled evidence to impeach and using it to incriminate was unrealistic.
Likewise, Binnie J. implicitly found that the distinction between
“incriminating statements” and “innocuous statements” was unrealistic, as he
stated at para. 45:
In Noël, it will be recalled, the
Court identified permissible cross-examination by reference to testimony “innocuous”
when made at the initial trial and “innocuous” when used at the retrial,
opening up consideration of various combinations and permutations of
statements innocuous/incriminating, incriminating/innocuous and
incriminating/incriminating, an exercise in classification that when argued on
a question by question basis can become both protracted and somewhat
unpredictable, as an examination of the questions at issue in the present
appeal illustrates. [Emphasis added.]
Therefore, parsing an
accused person’s testimony to distinguish what is “incriminating” from what is
“innocuous” in order to determine on what parts of his or her testimony the
accused may be cross-examined might result in a “protracted” and “unpredictable”
classification exercise. This is the approach the majority endorses, and in my
view, it is directly at odds with Henry.
[132]
My colleague appears willing to recognize and
reaffirm a departure from the strict words of s. 13 in the case of prior
compelled evidence on the basis of Henry: such evidence cannot be used for
any purpose. However, he does not seem willing to acknowledge that a
departure from the strict words of s. 13 is also warranted — and Binnie J.
stated as much in Henry — with respect to the kind of evidence that will
give rise to the quid pro quo. This departure is necessary because the
same practical difficulties that arise when determining what constitutes
“impeachment” and what constitutes “incrimination” also arise when determining
what is “incriminating” evidence and what is “innocuous” evidence.
[133]
In the case at bar, Crown counsel
unintentionally, yet convincingly, demonstrated in her submissions at trial
that the distinction proposed in my colleague’s reasons, though attractive in
theory, is unworkable in practice:
MS. PRENGER: . . . And how at the end of the
day, I think it’s in Kuldip where they essentially say, you know, if it
goes so -- and I think this is perhaps your point, Your Honour. When it
goes so to the heart of credibility, it can’t help the forward journey of
incrimination because one links into the other.
THE COURT: Uh huh.
MS. PRENGER: And perhaps with Mr. Nedelcu’s
case, when there is such a huge, what I would respectfully suggest, is a huge
contradiction, and even though it goes directly towards credibility, as per Henry
now, it could still, to a degree, be given some weight towards incrimination.
THE COURT: There’s an analogy in the case of
alibi evidence. There’s a case called Pearce . . . .
MS. PRENGER: M’hmm.
THE COURT: . . . that says if you simply don’t
believe the alibi, that goes to credibility but if you feel the accused
concocted the alibi, then that goes to the question of guilt.
MS. PRENGER: Right.
THE COURT: So it can be used as positive
evidence of guilt.
MS. PRENGER: Right.
THE COURT: And here you’re saying if it’s --
it’s so big . . .
MS. PRENGER: So aggravating.
THE COURT: It’s so big a difference it obviously
goes to credibility but can also be used to imply guilt. Is that what
you’re saying?
MS.
PRENGER: That would be my position and I think that’s what Henry
suggests, that there can be a root there. [Emphasis added; A.R., vol. III, at
pp. 49-51.]
[134]
If this Court is prepared to say that once s. 13
is engaged, no use of an accused person’s prior testimony is permissible
because of the unrealistic distinction between impeachment and incrimination,
then, by logical extension, the same must be said about the distinction between
innocuous and incriminating evidence. If “innocuous” statements can be used at
a subsequent trial to “impeach” the accused, as the majority contends, then
that “innocuous” statement could have the effect of incriminating, since it has
already been determined in Henry that the distinction between
impeachment and incrimination is unrealistic in the context of s. 13 . It is
incongruous to accept that one distinction is unrealistic for the purpose of
determining whether s. 13 applies, but not the other.
[135]
The examples given by my colleague in his
reasons illustrate how difficult it is to distinguish “innocuous” evidence from
“incriminating” evidence, especially given that “[t]he focus of the right is on
the second proceedings, the time at which the previous testimony is sought to
be used, rather than the time at which it is given” (Dubois, at p.
361). His explanation of those examples is reminiscent of the rationalization
in pre-Henry cases with respect to whether the purpose of the
cross-examination was impeachment or incrimination. This seems to take us back
to where we were before Henry.
[136]
Although my colleague is correct to say that
rejecting an accused person’s testimony does not create evidence for the Crown,
impeaching an accused lends support to the Crown’s position and may assist in
proving guilt. That was the whole point of eliminating the distinction between
impeachment and incrimination in Henry, and Binnie J. made this
clear at para. 35 when he endorsed the view of Martin J.A. in Kuldip:
Kuldip can be
seen as an attempt by the Court to put the brakes on Mannion, but in its
unwillingness to reconsider its reasoning in Mannion, the Court was
required to resort to reliance on the sometimes difficult distinction between
the purposes of impeachment of credibility and incrimination. Although this
distinction is well established in the law (see, e.g., R. v. Calder,
[1996] 1 S.C.R. 660, at para. 25), its practicality in this particular
context is frequently questioned. It is worth setting out in full what was said
by Arthur Martin J.A., writing in Kuldip, when it was before the
Ontario Court of Appeal:
Furthermore, in my view, where
the prior evidence is used ostensibly to impeach the accused’s credibility
only, it nevertheless does assist the Crown in its case and, in a broad sense,
may help to prove guilt. It is often difficult to draw a clear line between
cross-examination on the accused’s prior testimony for the purpose of
incriminating him and such cross-examination for the purpose of impeaching his
credibility. If the court concludes on the basis of the accused’s
contradictory statements that he deliberately lied on a material matter, that
lie could give rise to an inference of guilt. [p. 23] [Emphasis added.]
[137]
I acknowledge that the facts of this case are
not favourable to the accused. However, the case must be decided by applying
the principles laid out in Henry, not by attempting to carve out an
exception that is manifestly incompatible with Henry in order to arrive
at a desired result.
H. This Court’s Comment in Juman
[138]
Finally, I wish to briefly address the Crown’s
argument that this Court’s comment in Juman provides the answer to the question
before us.
[139]
In Juman, the Court was considering the
scope of the implied undertaking rule in British Columbia. The question for the
Court was under what circumstances, if any, information in discovery
transcripts could be used for a purpose other than that of the civil action in
question.
[140]
Binnie J., writing for the Court, noted that the
implied undertaking rule is a “recognition of the examinee’s privacy interest”
but that this privacy interest is not absolute (para. 30). He then cited several
exceptions of compelling public interests that could “trump” an examinee’s
privacy interest. At para. 41, he noted that one such exception is “where the
deponent has given contradictory testimony about the same matters in successive
or different proceedings”. In making this point, Binnie J. quoted the
trial reasons in the instant case: “Any other outcome would allow a person
accused of an offence ‘[w]ith impunity [to] tailor his evidence to suit his
needs in each particular proceeding’ (R. v. Nedelcu (2007), 41 C.P.C.
(6th) 357 (Ont. S.C.J.), at paras. 49-51).”
[141]
The Court of Appeal in the instant case
correctly noted that Juman was not a s. 13 case. Although s. 13 had been
raised at other stages in the litigation, by the time it was heard in this
Court, s. 13 was no longer at issue. Therefore, the fact that Binnie J. quoted
the trial judge’s reasons cannot be taken as an endorsement of the trial
judge’s approach to s. 13. The words in Juman illustrate a point related
to the implied undertaking rule only. They do not suggest that s. 13 protection
should be diminished in the case of an accused who makes inconsistent
statements.
[142]
In fact, Binnie J. specifically noted that there
was no Charter issue before the Court and that any use of discovery
transcripts in a criminal context would have to take into consideration the Charter
rights of the accused:
If
criminal charges are brought, the prosecution may also compel a witness to
produce a copy of the documents or transcripts in question from his or her
possession by a subpoena duces tecum. The trial judge would then
determine what, if any, use could be made of the material, having
regard to the appellant’s Charter rights and any other relevant
considerations. None of these issues arise for decision on the present
appeal. [Emphasis added; para. 57.]
[143]
Although there may be exceptions to the implied
undertaking rule that include the giving of contradictory testimony, this does
not mean that those same exceptions will apply to the s. 13 rights of an
accused. A civil procedure rule cannot be compared to a constitutional
guarantee. They involve different interests and have different degrees of
flexibility.
[144]
As noted by the Court of Appeal below, there is
nothing in Juman that alters the ratio of Henry. Juman is
of no assistance in this case.
V. Conclusion
[145]
I would dismiss the appeal.
Appeal allowed, LeBel, Fish and Cromwell JJ. dissenting.
Solicitor for the appellant: Attorney
General of Ontario, Toronto.
Solicitors for the respondent: Schreck
Presser, Toronto.
Solicitor for the intervener the Attorney
General of Quebec: Attorney General of Quebec, Québec.
Solicitors for the intervener the Advocates’
Society: Borden Ladner Gervais, Ottawa; Sack Goldblatt Mitchell,
Toronto.
Solicitors for the intervener the Criminal Lawyers’
Association (Ontario): Stockwoods, Toronto.