In R. v. Nedelcu, a 2012 case arising from a tragic drinking and driving involved motorcycle crash, the defendant was challenged by an answer he gave in a prior proceeding. Here is what the courts said about that.
One evening, while at the Brampton Brick Company where he worked, Marius Nedelcu took his co-worker, Vicente Perdon, for a ride on his motorcycle. Perdon was on the rear and not wearing a helmet. Within a few minutes the motorcycle struck a curb. Perdon flew off of the motorcycle, sustained a head injury and permanent brain damage.
Nedelcu suffered minor injuries and spent the night in hospital, and was charged criminally with dangerous driving causing bodily harm and impaired driving causing bodily harm. In addition to the criminal charges Nedelcu was sued civilly by Perdon and his family.
THE CIVIL PROCEEDING DISCOVERIES
In civil proceedings there is a set of rules, conveniently referred to as the Rules of Civil Procedure. The Rules allow for examination for discovery of a party. Examinations are made under oath and parties being examined are required, indeed compelled, to answer the questions put to them. And the questions can be broad, intended to be for fact-finding purposes perhaps beyond what one my think is germane.
Nedelcu’s examination for discovery took place before the trial of his criminal charges.
About the evening at the Brampton Brick Company, Nedelcu gave evidence he had no memory of the time between 5:00 p.m. when he got off work and late the next morning when he was released from hospital. The motorcycle crash had occurred at about 6:30 p.m.
CHARTER PROTECTIONS
I expect that Nedelcu’s lawyer at the examinations for discovery told him that he must answer the questions put to him as required by the Rules, but most importantly, that the answers he gave could not be used against him in the criminal trial because of the protections afforded by section 13 of the Charter of Rights and Freedoms.
Section 13 of the Charter contains the right of a witness in a proceeding against self-incrimination. To some extent it is the made in Canada version of American Fifth Amendment rights concerns. In the United States, a witness may refuse to answer a question on the grounds that it may tend to self-incriminate. In contrast, a witness in a Canada must answer a question put to him, but cannot have that answer held against him in a separate proceeding, except in the case of perjury.
Section 13 reads as follows: “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.”
THE CRIMINAL PROCEEDINGS
At Nedelcu’s criminal trial he gave evidence that included a description of the motorcycle ride and the reasons for the crash; that Perdon had grabbed his shoulder causing him to lose control of the motorcycle, a possibly innocent explanation for the crash, and clearly different from the “I don’t remember” answer he gave at civil discoveries.
The Crown prosecutor had a transcript of Nedelcu’s examination for discovery and sought to use Nedelcu’s answers in the civil proceeding to challenge his credibility in the criminal trial. The trial judge allowed the Crown to use the transcript to cross-examine Nedelcu, despite the protestations of his defence lawyer. The court held that since the Crown sought to use the evidence to impeach Nedelcu and not to incriminate him, that Nedelcu would not be afforded the protections provided by section 13 of the Charter.
THE ONTARIO COURT OF APPEAL
Nedelcu appealed the ruling. The Court of Appeal considered whether Nedelcu’s evidence on his examination for discovery in the related civil action could be put to him in cross-examination at the criminal trial. In finding in favour of Nedelcu and ordering a new trial, Justice Armstrong, writing for the court, relied on the 2005 decision of the Supreme Court of Canada in R v Henry, in which Justice Binnie, writing for the court (and I am paraphrasing here), recognized that: the right against self-incrimination is a cornerstone of our criminal law; that incriminating evidence means “something” from which a judge or jury may infer guilt; that section 13 of the Charter is a statutory protection against compulsory self-incrimination; and that distinguishing between using a witness’ evidence from a prior proceeding for the purpose of impeachment, but not for the purpose of proving the offence being tried is unworkable.
The Court of Appeal got it right. The protections provided by section 13 of the Charter must be broadly interpreted and purposively applied. The alternative is that the protections have no teeth, and the truth seeking function of the justice system will ultimately be impaired. The idea that a trier or fact, a judge or jury, will not take an extremely negative view of a witness caught lying on the stand, and that the lie will not influence the ultimate determination of guilt beyond a reasonable doubt is simplistic.
THE SUPREME COURT OF CANADA
The Crown appealed the Court of Appeal’s decision to the Supreme Court. In a six to three ruling in favour of the Crown, the court, led in this ruling by Justice Moldaver, ignored its prior decision in Henry, and came back to say that a trial court could parse between admitting the use of prior testimony for the purpose of impeachment and not for the purpose of proving the offence.
Writing for the majority of the court, Justice Moldaver held that section 13 of the Charter (and I paraphrase again) was not meant to protect a witness from the use by the Crown of evidence which “could” be incriminating if the Crown took extra steps to make it so, but only evidence which “would” prove an element of the offence charged. The clarity and predictability fostered by Henry were gutted. Recognizing the narrowest of distinction that this creates Justice Moldaver went on to say that while the approach might impinge “ever so slightly” on clarity and predictability, that clarity and predictability should not extend section 13 protections beyond their intended purpose.
I think, with great respect Justice Moldaver, that answer too narrowly constricts a Charter protection. Maybe it is just the way he phrased it.. The Charter is a codification of the protections enjoyed by people against the actions and power of the state. It is intended to be applied broadly and purposively, with any ambiguity to go in favour of the individual. It recognizes that the state has almost unlimited resources in contrast to the very limited resources of an individual. Clarity and predictability are necessary. The intended purpose of section 13 is to support the truth-seeking function of the justice system, so that a witness in one proceeding can be candid and truthful in answering questions, and not have that testimony used against him at a later proceeding.
Imagine the chilling effect on witnesses absent that protection. Why would a witness be candid and truthful in any proceeding if he knew that the evidence given would come back to haunt him. Witnesses will clam up. As much as a witness, like Nedelcu for example, is required to answer questions put to him in civil examinations for discovery, the incidence of “I don’t remember” will increase in the face of this new risk.
THE PRESUMPTION OF INNOCENCE AND THE RIGHT TO SAY NOTHING
Notwithstanding that an accused person may have committed the act charged, it is the Crown’s job to prove the offence. Except in very limited circumstances, an accused person has no role in his own prosecution. And it is the duty of a criminal defence lawyer to make use of every tool available to defend his or her client. The presumption of innocence demands no less. Trial fairness requires it. What constitutes incriminating evidence has been very narrowly defined by Justice Moldaver in Nedelcu, perhaps unacceptably so.
So what? Nedelcu got caught in a lie and was called to the carpet. His workmate was catastrophically injured and he caused it. He’s guilty. But that’s not the question we should be asking. The important questions are what Nedelcu would have said at his civil examination for discovery had he known the evidence he gave might come back to haunt him, and whether the trier of fact, the judge or jury, in the criminal trial made an inference from Nedelcu being caught in the lie that led to the finding of guilty.
We don’t know, and we can’t know, and for that reason, the broader interpretation of section 13, as set out in Henry, must be the right one.
Fortunately, Supreme Court Justice LeBel, writing for the three dissenting judges in Nedelcu, recognized that parsing an accused person’s testimony to distinguish what is incriminating and what is not is unworkable, and that any evidence of a witness from a prior proceeding that may help the Crown in proving its case is subject to section 13 protections.
I think Nedelcu is not the final word.
BUT WHAT ABOUT “…OR FOR THE GIVING OF CONTRADICTORY EVIDENCE”?
What if Justice Moldaver is right? Doesn’t this answer simply say that a witness in multiple proceedings must be consistent in giving evidence?
Section 13 of the Charter prevents the Crown from using incriminating evidence from a prior proceeding to incriminate a witness in another proceeding. Was Nedelcu’s discovery answer incriminating or was it just different?
At examination for discovery Nedelcu said he did not remember what happened at the time of the crash. At his criminal trial he said Perdon had grabbed his shoulder causing him to lose control of the motorcycle. Objectively, neither answer was incriminating. They were just different, contradictory. Standing alone, the first answer would require other evidence, perhaps from other witnesses, to incriminate, and the second would require contradictory evidence, perhaps from another witness, in order to incriminate.
Nedelcu gave two contradictory answers to the same question at two different proceedings. They were both given under oath. Neither answer tended to be incriminatory. He was challenged with the contradiction by the Crown at his criminal trial. The Supreme Court of Canada, the highest court in the land, tells us that the Charter permits the use of the contradictory evidence in order to challenge Nedelcu on the two different answers.
And that’s the final answer…for now.
R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311