SCC articulates rule on testimonial self-incrimination

On Wednesday a 6 – 3 majority of the Supreme Court of Canada held that section 13 of the Charter does not prevent a Crown prosecutor from using prior compelled testimony for impeachment purposes if the testimony does not prove or assist in proving one or more essential elements for which the witness is being tried.

The accused crashed a motorcycle. His passenger sued and the police laid dangerous driving and impaired driving charges. On discovery in the civil matter the accused said he had no memory of the events of the day. At his criminal trial the accused gave a detailed account of the events of the day. The Court granted the Crown leave to cross-examine the accused on his discovery testimony. The Crown successfully discredited the accused based on his conflicting testimony.

The majority, in a judgment written by Justice Moldaver, held that use of the discovery testimony for impeachment purposes did not breach the accused’s rights under section 13 because the discovery evidence was not “incriminating.”

Justice LeBel, for the minority, strongly criticized the majority for causing an unprincipled departure from the Court’s unanimous 2005 judgment in R v Henry. This departure, he argued, will invite uncertainty in criminal matters and discourage full and frank testimony. The latter issue was of interest to the Advocates’ Society, who argued in intervention that a bright-line rule is needed to protect the integrity of the civil discovery process.

R v Nedelcu, 2012 SCC 59 (CanLII).

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