The Respondent, Marius Nedelcu, had been convicted of dangerous driving causing bodily harm and impaired driving causing bodily harm after a serious motorcycle accident in which his passenger sustained a brain injury. The matter was the subject of both civil and criminal proceedings, in which Mr. Nedelcu gave inconsistent testimony. In civil examination for discovery, he claimed that he had no memory of the accident. In the criminal trial, he testified in detail and claimed to remember 90 to 95 percent of what happened. The question on appeal was whether the conviction violated Mr. Nedelcu’s right not to have inconsistent incriminating testimony from another proceeding used against him in a criminal proceeding.
The majority of the Supreme Court of Canada found that inconsistent testimony might render the accused’s version of events less believable, but that alone does not make it “incriminating” testimony within the meaning of Section 13 of the Charter of Rights and Freedoms. The Crown was therefore free to introduce prior inconsistent testimony from the accused in order to call his credibility into question:
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”.
Three Supreme Court justices dissented from this conclusion, arguing that the compellability of testimony which tends to impeach credibility should be grounds to consider that testimony “incriminating.” Nevertheless, the narrow definition of “incriminating evidence” adopted by the majority will now open the door to compellable testimony being used against accused persons in future criminal trials.
Decided by the Supreme Court of Canada on November 7, 2012.
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