November 24th, 2012
Protection against self-incrimination is one of the fundamental principles of the criminal justice system. You are probably familiar with the phrase, “pleading the fifth,” which refers to the Fifth Amendment in the American Constitution and provides testimonial immunity for an accused individual. There is no equivalent to the Fifth Amendment in Canada; however, a witness who is compelled to testify is protected under s. 13 of the Charter from having any incriminating statements “used to incriminate that witness in any other proceedings.” R v Henry,  3 SCR 609 [Henry], acknowledged that the history of this right is linked to “the general revulsion against the practices of the Star Chamber,” an ancient high court of England, which was infamous for its use of oppressive tactics to obtain admissions from accused persons.
While the principles behind s. 13 are well established, there was considerable confusion about how it should apply in practice until the Supreme Court of Canada (“SCC”) handed down its decision in Henry. However, the clarity provided by that case appears to have been displaced by the SCC’s most recent decision on the matter in R v Nedelcu,  3 SCR 311 [Nedelcu]. This case arose out of a tragic accident where Nedelcu lost control of a motorcycle while riding with his co-worker. The co-worker was not wearing a helmet and suffered permanent brain damage as a result. Nedelcu was charged with impaired driving and dangerous driving causing bodily harm. The victim’s family also sued for damages in tort. On examination for discovery for the civil claim, Nedelcu claimed that he had no memory of events.
The Lower Court Decisions
At the criminal trial, Neldecu provided a detailed account of the accident. The Crown sought leave to cross-examine Nedelcu on evidence given during the examination for discovery. During the voir dire, the trial judge found that while attendance at the discovery was statutorily compelled pursuant to Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194, the discovery lacked the “state-compelled incriminatory features” that were necessary to engage s. 13. As a result, the Crown was permitted to use the evidence in cross-examination to challenge Nedelcu’s credibility. The trial judge subsequently convicted him on the second charge. The Court of Appeal disagreed with the trial judge’s analysis of compellability, allowed the appeal and ordered a new trial.
Revisiting R v Henry
Before diving into the SCC’s decision in Nedelcu, it is useful to revisit its earlier decision in Henry. In that case, the appellant testified voluntarily at his retrial for the charge of first-degree murder and provided a different story than what he provided under oath at the first trial. The Crown obtained leave to cross-examine the appellant on his prior inconsistent statement and as a result he was convicted. On appeal, the SCC took the opportunity to clarify the confusion surrounding the application of s. 13.
Of primary concern was the issue as to when the protection afforded by s. 13 should be extended to an accused. Binnie J concluded that the purpose of s. 13 cannot be understood in isolation from s. 5 of the Canada Evidence Act, RSC, 1985, c C-5, which requires a witness to answer all questions, including those that are incriminating. However, where a witness objects to answering a question out of fear of incrimination, s. 5(2) provides that the answer “shall not be used or admissible in evidence” at any other criminal proceeding. Binnie J characterized this exchange as a quid pro quo. The “quid” being that a witness is compelled to answer any question that is put to him in exchange for the “quo” that the answer will not be used in any subsequent proceedings. Thus, to determine whether s. 13 is engaged, one must simply determine whether the elements of the quid pro quo are present.
In addition, Binnie J also re-considered a distinction that had developed in case law regarding the use of prior inconsistent statements. In R v Kuldip,  3 SCR 618, the SCC held that while a prior testimony could not be used at a retrial to incriminate an accused, the Crown was permitted to introduce the testimony on cross-examination for the purpose of impeaching the accused’s credibility. Recognizing concerns about the unworkable nature of this distinction, Binnie J rejected this approach and held that, where the quid pro quo of s. 13 applies, the Crown should not be permitted to use prior compelled testimony for any reason. The rejection of this distinction is important to keep in mind when considering the majority’s reasons in Nedelcu.
The SCC’s Decision
On appeal, the SCC was required to consider whether the Crown was entitled to “cross-examine the respondent on statements he had made during discovery in a civil action without infringing his right to self incrimination.” The court unanimously agreed that for the purposes of s. 13, Nedelcu had been “statutorily compellable to testify at his examination for discovery in the civil action.” However, they parted company in regards to how Henry should be interpreted and whether s. 13 should even apply to the facts of this case.
The Majority Reasons
Writing for the majority, Moldaver J held that “there was no ‘quid’ for there to be a ‘quo’.” As a result, the respondent’s s 13 rights were never engaged. Moldaver J’s analysis turned on the meaning of incriminating evidence—the “quid”—and whether Nedelcu’s testimony at the examination for discovery could be characterized as such. He characterized incriminating evidence as that which captures “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.” The emphasis here is on the incriminating nature of the evidence, and not simply on the fact that it was compelled. For the majority, this approach ensures that the focus of the analysis remains properly directed towards the purpose of s. 13.
Moldaver J also acknowledged that the law clearly indicates that evidence may be considered incriminating at the time the Crown seeks to use the evidence in a subsequent hearing, rather than the time the evidence was initially given. This point emphasize that there may be times when seemingly exculpatory evidence “may become ‘incriminating evidence’ at the subsequent proceeding, thereby triggering the application of s. 13.”
In the view of the majority, the facts of this case did not entitle Nedelcu to the protection of s. 13 of the Charter because his statement that he could not remember anything from the night of the accident could not be used to prove his guilt at trial. While Moldaver J recognizes that the introduction of Nedelcu’s “inconsistent discovery evidence might lead the triers of fact to reject his trial testimony,” he maintained that a rejection is not sufficient to transform the statement into an incriminating one for the purposes of s. 13.
In contrast to the majority’s narrow construction of s. 13, LeBel J advocated for a much fuller expression of the accused’s right to be protected from self-incrimination. According to the dissent, the Court of Appeal correctly applied Henry in rejecting the Crown’s application to cross-examine the accused on the statements made at the examination for discovery.
LeBel J’s analysis is informed by the idea that truth-seeking function of the trial must “give way to the right of the accused against self-incrimination.” He found that the facts of this case fall within the range of outcomes anticipated by Henry, where the court noted that the use of prior compelled evidence should be restricted to “a prosecution for perjury or for the giving of contradictory evidence.” LeBel J agreed with Binnie J’s suggestion that the best way to deal with a witness who lies under oath is through criminal charges for perjury because “this approach maintains respect for the administration of justice while fully preserving the s. 13 right of the accused.”
A return to an unworkable distinction?
The heart of the disagreement here turns on whether the court in Henry intended to exclude non-incriminating statements from the revised approach to s. 13. Moldaver J appears to answer this question in the affirmative in Nedelcu when he states that “s. 13 does not concern itself with that type of evidence.” LeBel J, on the other hand, argues that “the focus of Henry is on compulsion, not on the nature of the statements.”
While both justices make compelling arguments, I am more convinced by LeBel J’s interpretation because it appears to provide a more clear and logical interpretation of the Henry decision. By reviewing Moldaver J’s reasons in considerable detail, he reveals some logical inconsistencies that make the majority’s position more difficult for me to accept. Most significantly, LeBel J points out that by inquiring into the purpose of the prior compelled statements, Moldaver J’s approach essentially displaces Henry’s rejection of the “unworkable distinction” between “prior compelled evidence that is used to impeach and using it to incriminate.” This approach is troubling for LeBel J because it dilutes the “clarity and predictability” that Henry introduced into this “previously murky area of law.”
In support of the majority’s position, Moldaver J contends that if one looks to the wording of s. 13, it is clear that it is directed towards “incriminating evidence” rather than “any evidence.” As a result, he finds that Henry could not have intended for s. 13 to apply in cases where the prior compelled evidence is not found to be incriminating. LeBel J takes issue with this approach because Moldaver J accepts the conclusion in Henry, which states that prior compelled evidence cannot be used for any purpose. As LeBel J points out in this later case, the conclusion in Henry departs from the strict words of s. 13. Nonetheless, Moldaver J “does not seem willing to acknowledge that a departure from the strict words of s. 13 is also warranted…with respect to the kind of evidence that will give rise to the quid pro quo.” According to Lebel J, “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.”
By re-focusing the analysis on the content of the statements, rather than on the question of compellability, Moldaver J’s analysis effectively returns us to the unworkable distinction that Binnie J sensibly eliminated in Henry. As a result, the Crown in Nedelcu was entitled to introduce prior compelled statements to impeach the accused’s testimony, which ultimately assisted the Crown in proving his guilt. This use of Nedelcu’s testimony demonstrates the difficulty of drawing a bright line between using evidence for the purpose of impeachment and incrimination. As LeBel J rightly points out, the effect of this testimony undermines the “whole point of eliminating the distinction” in the first place.
Developing clarity and predictability in the law are laudable goals to ensure that citizens fully understand their rights and obligations. These goals are arguably even more important within the context a criminal case, where an accused’s liberty interests are at stake. The court in Henry addressed these concerns by developing an approach to s. 13 that was sensitive to the need to fully protect an accused’s right against self-incrimination whenever that person has been compelled to testify at a prior proceeding. Moldaver’s J’s return to the “unworkable distinction” in Nedelcu rolls back this protection by making it less clear as to when prior compelled testimony may be admissible at an accused’s own trial.[filed: List of cases]