Court headnote

R. v. Nedelcu
Collection
Supreme Court Judgments
Date
2012-11-07
Neutral citation
2012 SCC 59
Report
[2012] 3 SCR 311
Case number
34228
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 34228
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311
Date: 20121107
Docket: 34228
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

Court headnote

R. v. Nedelcu Collection Supreme Court Judgments Date 2012-11-07 Neutral citation 2012 SCC 59 Report [2012] 3 SCR 311 Case number 34228 Judges McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache On appeal from Ontario Subjects Constitutional law Notes SCC Case Information: 34228 Decision Content SUPREME COURT OF CANADA Citation: R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311 Date: 20121107 Docket: 34228 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

R. v. Nedelcu

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