CITATION: R. v. Nedelcu, 2011 ONCA 143
DATE: 20110224
DOCKET: C48500
COURT OF APPEAL FOR ONTARIO
Weiler, MacPherson and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marius Nedelcu
Appellant
P. Andras Schreck and Candice Suter, for the appellant
Michal Fairburn, for the respondent
Heard: October 4, 2010
On appeal from the conviction imposed by Justice Terrance O’Connor of the Superior Court of Justice dated December 14, 2007.
ARMSTRONG J.A.:
INTRODUCTION
[1] This appeal turns on a single issue – whether the appellant’s evidence on his examination for discovery in a related civil action can be put to him in cross-examination at his criminal trial. The trial judge, after considering s. 13 of the Canadian Charter of Rights and Freedoms and the relevant provisions of the Rules of Civil Procedure, held that such evidence could be introduced for the purpose of impeaching the appellant’s credibility. The reasons for this ruling were reported at 2007 9887 (ON SC), 41 C.P.C. (6th) 357.
[2] Section 13 of the Charter provides:
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.
[3] For the reasons that follow, I would allow the appeal.
THE FACTS
[4] The appellant was employed at the Brampton Brick Company as a millwright. His fellow employee, Vicente Perdon, was employed as an electrician.
[5] At about 6:30 p.m. on July 30, 2004 at the conclusion of a day’s work, the appellant took Mr. Perdon for a ride on his motorcycle on the property of Brampton Brick. Mr. Perdon was on the rear of the motorcycle. He was not wearing a helmet. The motorcycle crashed into a curb on a roadway adjacent to a parking lot. Both the appellant and Mr. Perdon were ejected from the motorcycle.
[6] Mr. Perdon suffered permanent brain damage. The appellant suffered minor injuries and was hospitalized overnight.
[7] The appellant was charged with dangerous driving causing bodily harm and found guilty of that offence. He was acquitted of the charge of impaired driving causing bodily harm. He was sentenced to a conditional sentence of two years less one day followed by three years’ probation and a two year driving prohibition. He appeals his conviction.
[8] The appellant was sued in a civil action by Mr. Perdon and his family. He was examined for discovery on September 12, 2005. When asked about the state of his memory at the relevant time of the accident, he testified that he had no memory of events from 5:00 p.m. to the following day at 11:00 a.m. when he woke up in the hospital.
[9] The following is an excerpt of the appellant’s evidence given on examination for discovery:
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.
Q. And what do you remember at 11 o’clock in the morning? How do you remember that time?
A. Was the nurse--I was thirsty and the nurse gave me a stick with water, the most stick--how you say? They have, like---
[10] About 14 months later, the appellant testified at his criminal trial on November 23 and 24, 2006. In his trial evidence, he gave a detailed account of giving Mr. Perdon a ride on his motorcycle on July 30, 2004 and the subsequent accident.
[11] The trial judge described the evidence of the appellant as follows at para. 11 of the reasons for the ruling:
At trial, Mr. Nedelcu gave lengthy and detailed evidence about his day at work, his preparation for the ride with Mr. Perdon as his passenger, and a second-by-second account of the entire trip up and down and around the parking lot. This ride culminated with his losing control of the bike, the bike toppling over and skidding into the curb, at which point he and Mr. Perdon flew into the air. His chronology included estimates of speed, the manoeuvres he took to try to control the bike and the exact points at which he applied the brakes. His description of these events, which took no more than five minutes of actual time, consumed approximately 34 pages of transcript of his examination-in-chief.
[12] In cross-examination, the appellant was asked about his memory on the day of the accident and he responded: “I have a recollection about 90, 95 percent.”
[13] At the commencement of the Crown attorney’s cross-examination of the appellant, a police officer handed her a transcript of the appellant’s examination for discovery – apparently provided by counsel for Mr. Perdon in the civil proceedings. At the conclusion of the cross-examination, she advised the trial judge that she was seeking leave to cross-examine the appellant on his discovery evidence.
[14] A copy of the transcript was given to defence counsel who reviewed it during a brief adjournment. A voir dire followed. The trial judge ruled that the discovery evidence could be put to the appellant for the purpose of impeaching his credibility.
THE TRIAL JUDGE’S RULING
[15] The trial judge began his analysis by reference at para. 14 of his reasons to the judgment of the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609:
The important result that emerges from Henry for application to Mr. Nedelcu’s situation is that the s. 13 protection clearly applies only in relation to prior compelled testimony. It cannot be invoked where prior testimony was given voluntarily. [Emphasis in original.]
After stating the above proposition, he asked himself the question, was Mr. Nedelcu’s discovery testimony compelled?
[16] The trial judge acknowledged that parties to a civil action in Ontario are obligated to attend examinations for discovery and answer relevant questions under oath. Referring to the Rules of Civil Procedure, he characterized discovery testimony at para. 18 as “statutorily compelled evidence”.[^1] That said, the trial judge concluded at the same paragraph of his reasons:
However, such a determination fails to take into account the fundamental differences that exist between civil and criminal interrogatories. Without this type of contextual consideration, the crossover between the two domains could easily give rise to a form of philosophical and practical dissonance that seems rather awkward, and perhaps even perverse, in the result.
[17] It was the trial judge’s opinion at para. 20 that “[c]ivil, criminal and quasi-criminal interrogatories differ in character, purpose and philosophy”, and that such differences need to be taken into account when applying the Charter to exclude evidence obtained in a civil action.
[18] The trial judge emphasized at para. 24 the information-gathering purpose of discovery evidence, which he contrasted with the “public, justice-oriented purpose” of a criminal investigation. He quoted from Securities Commission v. Branch et al, 1995 142 (SCC), [1995] 2 S.C.R. 3 at para. 8:
In applying this test, the Court must first determine the predominant purpose for which the evidence is sought. To qualify as a valid public purpose, compelled testimony in a criminal prosecution or prosecution under a provincial statute must be for the purpose of obtaining evidence in furtherance of that prosecution.
[19] On the basis of the above distinction between evidence given on discovery in a civil action and so-called “criminal interrogatories”, the trial judge concluded at paras. 25, 26 and 27 of his reasons:
[25] Given the preceding conceptual overview of the purpose and character of statutorily compelled discoveries and the contrasting criminal correlative, can a reasonable argument be made out that Mr. Nedelcu’s testimony should be granted the type of s. 13 protection described in Henry? In that case, Justice Binnie stressed the need for a consistent and purposeful analysis of s. 13 to avoid the earlier interpretive complications that accompanied the protection against self-incrimination. He said that s. 13 must be analyzed purposefully, always within the context of the quid pro quo – circumstances where the State offers subsequent use immunity to an accused in exchange for evidence directly compelled by the State:
¶ 59 … The present reasons endeavour to re-establish the core concept stated in Dubois that “the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves” (p. 358). To the extent statements in the other cases are inconsistent with the rationale of compulsion (the “quid pro quo”), they should no longer be regarded as authoritative.
[26] Situations that do not meet the quid pro quo rationale of compulsion would be inconsistent with the purpose and character of the prior compelled proceeding protected by Henry. The fact-gathering discovery exercise, although statutorily compelled, lacks the State-compelled incriminatory features discussed in that case.
[27] Thus, in my view, s. 13 of the Charter does not protect Mr. Nedelcu from the use of his discovery testimony to impeach his credibility. No bargain or quid pro quo with the State exists. He cannot now argue that he gave evidence under compulsion that assisted the Crown to further the ends of justice, thereby earning him protection against the use of that evidence contrary to his interests. On the contrary, he gave his discovery evidence to further his own private interests in a civil action against him, a proceeding in which the State was not involved, nor has any interest in the outcome.
[20] The trial judge also considered whether the deemed undertaking rule, r. 30.1.01(3) of the Rules of Civil Procedure, protected the appellant from the use of his discovery evidence in his criminal trial. He decided that the exception in r. 30.1.01(6), which permits the use of evidence obtained on discovery to impeach a witness in another proceeding, applied in this case. I have some doubt whether this rule can apply in these circumstances. However, the deemed undertaking rule is not in issue in this appeal.
ANALYSIS
Overview
[21] The Supreme Court’s last word on s. 13 of the Charter is Henry. In that case, the court reviewed its prior jurisprudence on s. 13 in Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, R. v. Mannion, 1986 31 (SCC), [1986] 2 S.C.R. 272, R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618, R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433 and R. v. Allen, 2003 SCC 18, [2003] 1 S.C.R. 223.
[22] Binnie J., writing for the court, referred to the section’s historical roots and purpose at para. 2 of Henry:
The right against self-incrimination is of course one of the cornerstones of our criminal law. The right to stand silent before the accusations of the state has its historical roots in the general revulsion against the practices of the Star Chamber, and in modern times is intimately linked to our adversarial system of criminal justice and the presumption of innocence. Section 13 of the Charter gives constitutional protection to a more specific privilege against testimonial self-incrimination. In Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, the Court stated at p. 358 that
the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. [Emphasis in Henry.]
[23] The court in Henry described the right protected in s. 13 as follows at para. 25:
Section 13 of the Charter precludes “incriminating evidence” given in one proceeding from being “used to incriminate that witness in any other proceedings”. Incriminating evidence means “something ‘from which a trier of fact may infer that an accused is guilty of the crime charged’”: Kuldip, at p. 633.
[24] The court at para. 22 of Henry also alluded to the rationale for the protection granted by s. 13 as described by Arbour J. in Noël at para. 21:
Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act [R.S.C. 1985, c. C-5]. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony. [Emphasis in Henry.]
[25] Most importantly, the court in Henry abandoned the distinction made in the earlier s. 13 cases between prior testimony being used to incriminate an accused and being used to impeach an accused’s credibility. The court concluded at paras. 49 and 50 that the distinction was unrealistic:
[49] Noël is a classic example of prosecutorial abuse of the very “bargain” s. 13 was designed to enforce. Noël was not on trial at the time he gave the testimony subsequently relied upon by the Crown. He was a compellable witness who at common law could have refused to answer the Crown’s questions that tended to show his guilt. He was compelled by s. 5(1) of the Canada Evidence Act to answer the incriminating questions, and in consequence he invoked the protection of s. 5(2). When s. 5(2) says “the answer so given shall not be used or admissible in evidence”, it means not to be used for any purpose, including the impeachment of credibility. We should affirm the correctness of the result in Noël on its facts.
[50] I would go further. Even though s. 13 talks of precluding the use of prior evidence “to incriminate that witness”, and thus implicitly leaves the door open to its use for purposes other than incrimination such as impeachment of credibility (as Kuldip accepted), experience has demonstrated the difficulty in practice of working with that distinction. If, as Noël held, and as Arthur Martin J.A. observed in Kuldip, the distinction is unrealistic in the context of s. 5(2) of the Canada Evidence Act, it must equally be unrealistic in the context of s. 13 of the Charter. Accordingly, by parity of reasoning, I conclude that the prior compelled evidence should, under s. 13 as under s. 5(2), 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”. [Emphasis in original.]
The Issues in this Case
[26] There are three issues raised in this appeal concerning the application of s. 13:
(i) Was the appellant compelled to testify on his examination for discovery?
(ii) Did the trial judge err in his analysis of the quid pro quo?
(iii) Is this appeal determined by the observation made by the Supreme Court in Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157?
(i) Was the appellant compelled to testify on his examination for discovery?
[27] The trial judge was satisfied that the appellant was compelled to attend his examination for discovery.[^2] Although counsel for the respondent says not much turns on it, she has raised this as an issue before us. Counsel appears to draw a distinction between “compelled” and “compellable”. She accepts that the appellant was compellable in respect of his attendance on discovery. However, she submits that steps could have been taken by the appellant to avoid testifying by seeking a stay of the civil action until the criminal prosecution was terminated. Alternatively, she submits he could have sought an adjournment of the examination for discovery until the conclusion of the criminal trial.
[28] The law in this province makes it clear that a stay of civil proceedings to await the outcome of a criminal prosecution is granted only in extraordinary or exceptional circumstances. See Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.) where this court said at p. 7:
The mere fact that criminal proceedings are pending at the same time as civil proceedings is not sufficient ground for a stay of the latter….Even the potential disclosure through the civil proceedings of the nature of the accused’s defence or of self-incriminating evidence is not necessarily exceptional. [Citations omitted.]
[29] In my view, the same rationale for denying a stay would apply to a request for an adjournment. There are no exceptional circumstances here.
(ii) Did the trial judge err in his analysis of the quid pro quo?
[30] Although the trial judge found that the appellant’s discovery evidence was compelled, he concluded that the appellant was not afforded the protection of s. 13 of Charter because his situation did not meet the quid pro quo rationale of compulsion. For convenience, I repeat here the trial judge’s conclusion on this issue at paras. 26 and 27 of his reasons:
[26] Situations that do not meet the quid pro quo rationale of compulsion would be inconsistent with the purpose and character of the prior compelled proceeding protected by Henry. The fact-gathering discovery exercise, although statutorily compelled, lacks the State-compelled incriminatory features discussed in that case.
[27] Thus, in my view, s. 13 of the Charter does not protect Mr. Nedelcu from the use of his discovery testimony to impeach his credibility. No bargain or quid pro quo with the State exists. He cannot now argue that he gave evidence under compulsion that assisted the Crown to further the ends of justice, thereby earning him protection against the use of that evidence contrary to his interests. On the contrary, he gave his discovery evidence to further his own private interests in a civil action against him, a proceeding in which the State was not involved, nor has any interest in the outcome.
[31] I agree with the submission of counsel for the appellant that there is nothing in the s. 13 jurisprudence that suggests the protection is only engaged where a witness’s prior testimony “assisted the Crown”. As counsel submits, if this were the case, the section would only apply in proceedings in which the Crown was a party. In my view, s. 13 cannot be so restricted in its reach. The protection in s. 13 refers to “[a] witness who testifies in any proceedings” (emphasis added).
[32] The trial judge’s analysis is also rooted in the premise that the appellant “gave his discovery evidence to further his own private interest in a civil action against him…” This statement mischaracterizes what, in fact, was happening. The appellant was a defendant in a civil action brought against him. He was not the plaintiff. He was compelled to testify on the examination for discovery solely for the benefit of the plaintiffs. He was not entitled to use his discovery evidence in the civil trial. If he wished his story told, he must step into the witness box at trial. From an evidentiary point of view, there is nothing that a witness can do on discovery to help his case. That the quid pro quo is more broadly based than suggested by the trial judge can be found in the following passage of Arbour J. at para. 22 of Noël:
When a witness provides evidence in any proceeding, whether voluntarily or under legal compulsion, he or she cannot refuse to answer a question that may tend to incriminate the witness, but is offered protection against the subsequent use of that evidence. The question before us is the extent of that protection. To answer that question, it is important to remember its root in the quid pro quo. The witness, now accused, gave something in exchange for the protection. This is what makes a statement given in a judicial proceeding different from a statement to a person in authority, which is governed by rules of admissibility that are relevant to the special concerns related to that type of statement, and also different from all other out-of-court declarations and admissions. [Emphasis added.]
[33] The broadly based reach of s. 13 can be found in MacIntyre J.’s dissent in Dubois at p. 384, which was quoted with approval by Arbour J. at para. 23 of Noël:
There is a social interest in encouraging people to come forward to give evidence, not only in court but on other occasions in the tribunals and proceedings referred to above. That interest is not served where witnesses in testifying expose themselves to the danger of self-incrimination because of such testimony. It is suggested that it was a recognition of this fact, together with a recognition of the inadequacy of the law relating to self-incrimination and the inadequacy of provincial powers in this respect that caused the framers of the Charter to include the very greatly strengthened Charter provisions relating to self-incrimination. [Emphasis added.]
[34] The “other occasions in the tribunals and proceedings referred to above” were included in the preceding paragraph of Dubois. They included royal commissions, statutory boards and tribunals, bankruptcy proceedings and other forms of judicial and quasi-judicial proceedings.
[35] For these reasons, the trial judge’s distinction between criminal and non-criminal interrogatories is not relevant to this appeal, and it is unnecessary for me to consider whether such a distinction is supported by the cases to which he referred.
(iii) Is the appeal determined by the observation made by the Supreme Court in Juman v. Doucette?
[36] Counsel for the respondent relies on the reasons of the Supreme Court in Juman at para. 41:
Another situation where the deponent’s privacy interest will yield to a higher public interest is where the deponent has given contradictory testimony about the same matters in successive or different proceedings. If the contradiction is discovered, the implied undertaking rule would afford no shield to its use for purposes of impeachment. In provinces where the implied undertaking rule has been codified, there is a specific provision that the undertaking “does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding”: see Manitoba r. 30.1(6), Ontario r. 30.1.01(6), Prince Edward Island r. 30.1.01(6). While statutory, this provision, in my view, also reflects the general common law in Canada. An undertaking implied by the court (or imposed by the legislature) to make civil litigation more effective should not permit a witness to play games with the administration of justice: R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76. Any other outcome would allow a person accused of an offence “[w]ith impunity [to] tailor his evidence to suit his needs in each particular proceeding” (R. v. Nedelcu (2007), 2007 9887 (ON SC), 41 C.P.C. (6th) 357 (Ont. S.C.J.), at paras. 49-51).
[37] Counsel submits that the above reference to this case is determinative of the appeal. I respectfully disagree. In Juman, the principal issue was the scope of the “implied undertaking rule” in British Columbia.
[38] In Juman, the appellant was a childcare worker who provided day-care service to a 16-month-old child. While in the appellant’s care, the child suffered a seizure. At a later time, the child was discovered to have suffered a brain injury. The child and her parents sued the appellant and others alleging that the child’s injury was attributable to the negligence of the appellant and others while in their care.
[39] The Vancouver Police conducted an investigation of the circumstances giving rise to the child’s injury. In aid of the investigation, the police and the Attorney General of British Columbia sought access to the appellant’s discovery transcript in the civil action. In November 2004, the appellant moved for an interlocutory injunction to prohibit the parties to the civil action from providing the discovery transcript to the police and for other related relief. The appellant’s discovery was not, in fact, commenced until June 2005 and was completed in September 2006.
[40] The chambers judge, inter alia, rejected the argument of the respondents that the implied undertaking rule did not apply to evidence of crimes.
[41] The British Columbia Court of Appeal allowed the appeal and permitted the plaintiffs to the lawsuit to provide copies of the discovery transcript of the appellant to the police. On appeal to the Supreme Court of Canada, the court canvassed the scope of the implied undertaking rule in British Columbia and in the other Canadian provinces including Ontario’s deemed undertaking rule. The court made explicit reference to r. 30.1.01(6), which, as indicated above, provides an exception to the deemed undertaking for the purpose of impeachment of a witness in another proceeding.
[42] It is in the above context that the court’s reference to this case must be read. The court in Juman was discussing general categories of exceptions to the implied undertaking rule. The fourth such category, under which the court’s comments appeared at para. 41, was “Impeaching Inconsistent Testimony”. There is no reference to the Charter at this point in the judgment.
[43] Indeed, there was no Charter issue in Juman. Although the appellant had raised before the chambers judge sections 7, 11(c) and 13 of the Charter, they were not in issue, or at least, not in serious issue on the appeal to the Supreme Court of Canada. Binnie J., writing for the court, said at para. 1 of his reasons:
The principal issue raised on this appeal is the scope of the “implied undertaking rule” under which evidence compelled during pre-trial discovery from a party to civil litigation can be used by the parties only for the purpose of the litigation in which it was obtained.
[44] In para. 54 of his reasons, Binnie J. observed that “[t]he appellant’s statutory or Charter rights are not in peril in the present appeal and her claims to Charter relief at this stage were properly dismissed.”
[45] The Supreme Court in Juman was not addressing the Charter issue in this case in para. 41 of its reasons for judgment. The decision was about whether and how the Vancouver Police and the Attorney General could obtain the transcript for investigative purposes, not about the use of that transcript in a criminal trial if charges were subsequently laid. There is nothing in Juman which alters the ratio in Henry and therefore there is nothing that alters its application to this case.
CONCLUSION
[46] The trial judge in this case concluded his review of the application of s. 13 of the Charter as follows at para. 49:
The use the Crown seeks to make of the evidence is the permitted one of assessing credibility only and not the prohibited purpose of incrimination. Accordingly, I have found its use is not prohibited by s. 13 of the Charter.
[47] With respect, the trial judge erred in the above conclusion. This case turns on what Binnie J. said in the concluding sentence of para. 50 of Henry:
[T]he prior compelled evidence should, under s. 13 as under s. 5(2) [of the Canada Evidence Act], 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”. [Emphasis in original.]
[48] In the result, I would allow the appeal, set aside the conviction and order a new trial.
RELEASED:
“FEB 24 2011” “Robert P. Armstrong J.A.”
“JCM” “I agree K.M. Weiler J.A.”
“I agree J.C. MacPherson J.A.”
[^1]: See rr. 31.03(1), 31.06(1), 31.07, 31.09, 34.01(1)(a), and 34.15.
[^2]: As already noted the Rules of Civil Procedure make that clear. Under r. 34.15 a party who fails to attend his or her examination for discovery or refuses to answer proper questions is subject to an order dismissing his or her action or striking his or her defence. A party who does not comply with an order of the court relating to his or her examination for discovery may also be found in contempt.