R. v. Nedelcu and the law against compelled evidence and weakens then right against self-incrimination

Yesterday the Supreme Court of Canada released the judgement of R. v. Nedelcu 2012 SCC 59 that clarifies what the right against self-incrimination under section 13 of the Charter of Rights and Freedoms really means.   This is a crucial case for criminal defence lawyers to understand and appreciate its’ consequences.

Can a person be cross-examined on previous compelled inconsistent statements?

In R. v. Nedelcu, the Court had to decide whether a person facing criminal charges can be cross-examined on previous inconsistent statements provided at an examination for discovery in a civil lawsuit.   In this case, the accused stated under oath at his civil examination for discovery that he  he had no memory of the events from the day of the accident until he woke up in the hospital the following day.

However, at his criminal trial, the accused gave a detailed account of the events leading up to and during the accident.  The Crown sought to cross-examine him upon this apparent contradiction in evidence and the trial judge permitted them to do so.  The Ontario Court of Appeal overturned the conviction that resulted and ordered a new trial.

Yes, it’s permissible to cross-examine on prior evidence from civil examinations.

The Supreme Court of Canada allowed the appeal and held that in instances of this nature, it is permissible to cross-examine an individual on prior evidence at civil examinations since it did not explicitly offend the right and “self-incrimination” as it strictly only spoke to a person’s credibility.   Although the evidence at the prior proceeding could not be used by the Crown to prove a person’s guilt, prior evidence per se is not “incriminating” and therefore not subject to the protection of section 13 of the Charter notwithstanding that such inconsistencies may indirectly lead the judge or jury to conclude the evidence is not worthy of belief and find that person guilty.

The dissent of Fish. J.

In a strong dissent by Fish, LeBel, and Cromwell, the justices point out three significant practical and principled problems with the approach adopted by majority:

[…] First, it adds a layer of complexity to an already complicated trial process. Second, such an approach is not required by the Charter. Third, and most importantly, the weighing proposed by the intervener would have the effect of compromising the s. 13 rights of the accused in some cases. The approach proposed by the Attorney General of Quebec is therefore incompatible with Henry.

This decision is an essential case for lawyers to understand, particularly for those offering advice to client’s who may also face civil lawsuits from their alleged acts.  For criminal defence lawyers, it may be prudent to advise clients in these situations to act quickly on their criminal trials so as to pace ahead of any civil examination discoveries.  Similarly, it would be wise to work with the client’s civil counsel in seeking adjournments of the civil proceedings until the completion of the criminal matter if possible.