R v. Nedelcu, 2012 SCC 59, is a recent Supreme Court of Canada decision which clarifies the scope of the right against self-incrimination, protected by section 13 of the Charter. The case considers the question of whether and to what extent evidence obtained in civil proceedings is admissible at subsequent criminal proceedings. In cases involving both a criminal and a civil action, lawyers must be able to advise clients about the potential implications evidence given at one proceeding may have on the other proceeding. Nedelcu is instructive in assisting both civil and criminal counsel in providing such advice.
The defendant in this case, Marius Nedelcu, was involved in a motorcycle accident. Nedelcu was the driver of the motorcycle and suffered minor injuries following the accident; Nedelcu’s passenger was seriously injured. A civil and a criminal proceeding against Nedelcu followed the accident. The civil proceeding was heard before the criminal proceeding. During his examination for discovery in the civil proceeding, Nedelcu testified that he had no memory of the night of the accident. At the subsequent criminal trial, Nedelcu gave a detailed account of the events of the evening of the crash. Following this admission, the Crown cross-examined Nedelcu on the inconsistencies between his civil and criminal testimonies, and successfully impeached his credibility. The jury in the criminal case found Nedelcu’s evidence to be unreliable, and he was convicted of dangerous driving causing bodily harm.
Nedelcu appealed the conviction, on the grounds that his civil discovery testimony could not be used to incriminate him at a subsequent criminal proceeding, as this would be in breach of section 13 of the Charter. The Court of Appeal for Ontario accepted Nedelcu’s argument, set aside the conviction, and ordered a new trial. The Crown appealed to the Supreme Court.
Supreme Court Ruling
Both the majority and the dissent of the Supreme Court accepted that evidence given at civil discovery must be treated as “compelled” for the purpose of the section 13 analysis, notwithstanding that Nedelcu was not testifying under a subpoena. The Court split 6 to 3 on the issue of whether Nedelcu’s compelled discovery testimony could be considered “incriminating” for the purpose of section 13 of the Charter, with the majority holding that it was proper for the Crown to use Nedelcu’s prior testimony to impeach his credibility.
A large part of the debate between the majority and the dissent in this case centered around the issue of whether the quid pro quo inherent in section 13 of the Charter was engaged. Both the majority and dissent rely on the Supreme Court of Canada’s earlier decision in R v. Henry, 2005 SCC 76. In Henry, the unanimous Court characterized the trade-off inherent in section13 as follows: when a witness compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination (the quid), the state offers protection against the subsequent use of that evidence against the witness in exchange for the witness’ full and frank testimony (the quo) [paragraph 33].
The Supreme Court in Nedelcu split on whether there was any quid in this case. Justice Moldaver, writing for the majority, held that the use of previous compelled testimony to impeach credibility only was a proper use of the evidence, and was not precluded by section13 of the Charter. This conclusion was based on Justice Moldaver’s definition of “incriminating evidence”:
 In my view, [incriminating evidence] 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 of more of the essential elements of the offence for which the witness is being tried.
At his examination for discovery in the civil proceeding, Nedelcu stated that he remembered nothing about the accident. Justice Moldaver held that this non-evidence or “I…remember nothing” testimony given by Nedelcu could not aid in proving any element of the criminal offence, and therefore was not “incriminating” for the purposes of section 13. As Justice Moldaver put it, “rejection of an accused’s testimony does not create evidence for the Crown” [paragraph 23].
The dissent disagreed with this characterization of “incriminating evidence.” Justice LeBel, writing for the dissent, found that the use of such evidence to impeach credibility could not be considered innocent or innocuous:
 ...Any evidence that may assist the Crown in proving its case, including evidence impeaching the credibility of the accused, will have an incriminating effect and must therefore be subject to section 13 protection.
Because the prior inconsistent statements in Nedelcu clearly assisted the Crown in its case, Justice LeBel held that section 13 protected such statements from disclosure. He would have dismissed the appeal and ordered a new trial, in which the Crown would not be allowed to cross-examine Nedelcu on the prior compelled testimony.
Practice Considerations Arising from R. v. Nedelcu
In circumstances where a civil proceeding occurs first, and a criminal proceeding second, the ruling in Nedelcu suggests that the protection against incrimination within section 13 of the Charter is potentially engaged. However, Nedelcu is clear that this constitutional protection is far from absolute. First, if there are any inconsistencies between the civil and criminal testimonies, the Crown may cross-examine on those inconsistencies for the purpose of impeaching credibility, even if the earlier testimony was compelled. This would likely not be favourable to the accused, since, in practice, an impeachment of credibility can greatly assist the Crown in proving its case. Justice LeBel pointed out that this may have a chilling effect on examinations for discovery in civil cases where a criminal case is pending, and may result in accuseds being less than forthright in their civil testimony out of fear that any later modification in their evidence will prejudice their position in the criminal trial. Justice Moldaver, however, disagreed that the majority’s ruling could cause such a result, as section 13 will continue to protect those individuals who wish to tell the truth, and will be detrimental only to those who are “bent on giving false testimony” [paragraphs 40-41]. It remains to be seen whether such a “chilling effect” predicted by Justice LeBel will become part of civil litigation, however, civil counsel should certainly be aware that any evidence given by their client in the civil action can be used against him or her, albeit in a limited way, in a potential criminal proceeding.
Another danger is that the prior evidence which is introduced for the purpose of impeaching credibility may be prejudicial. Consider a case where an accused admits at a civil proceeding that she ran a stop sign, and at the criminal proceeding she for whatever reason denies this. The Crown, following Nedelcu, would be permitted to introduce the prior inconsistent statement to impeach credibility but not for the truth of its contents. However, because of the nature of the evidence in such a case, there is a real danger that, if the evidence is allowed, the trier of fact may inadvertently and improperly consider the evidence for the truth of its contents. The concern is arguably heightened in jury trials. In such cases, counsel should consider raising the argument that, quite apart from protection granted by section 13, such evidence should not be admitted even for the sole purpose of impeaching credibility as its probative value is outweighed by its potential for prejudice.
Finally, Justice LeBel in the dissenting opinion disagrees with the majority decision on the account that its ruling is bound to increase the number of unnecessary evidence voir dires, as trial judges will now have to determine whether a prior testimony is in fact “incriminating.” This could lead to further delays within the criminal process. Justice Moldaver, for the majority, responded to this concern, suggesting that the added requirement of determining whether evidence is incriminating is not a complicated exercise for the trial judge, especially since it involves no element of discretion. Again, it remains to be seen whether such evidence voir dires will become overwhelming. Criminal counsel should be prepared for the potential of such voir dires when seeking invoke the protection of section 13 of the Charter.
Potential implications for civil counsel
Counsel in civil cases where there is a criminal proceeding on the same subject matter have long been aware that they must pay close attention to the evidence given in a preceding criminal trial. Since section 13 of the Charter protects incriminating evidence, evidence given at criminal trial and convictions are admissible, generally speaking, at a subsequent civil proceeding, since that latter proceeding does not involve criminal punishment (see for instance Knutson v. Saskatchewan Registered Nurses Association,  S.J. No. 603 (Saskatchewan Court of Appeal)). Since the burden of proof is higher in criminal cases than in civil cases, the outcome of a criminal proceeding will give civil counsel a good indication as to the likely result of the subsequent civil proceeding.
Potential implications for criminal counsel
Because Nedelcu markedly limits the scope of the protection afforded by section 13 of the Charter, criminal counsel must now also be aware of how evidence obtained in civil proceedings can be used in a subsequent criminal case. Above all, Nedelcu suggests that both criminal and civil counsel must be careful and diligent when representing a client who is facing jeopardy in both the criminal and civil context.