This appeal addressed the issue of whether an individual’s evidence on his examination for discovery in a related civil action can be used in cross-examination at his criminal trial. The appellant took one of his co-workers for a ride on his motorcycle. The motorcycle hit a curb and both men were ejected. The appellant suffered only minor injuries, but his co-worker, who had not been wearing a helmet, suffered permanent brain damage. In examination for discovery in a civil action brought against him by the co-worker’s family, the appellant indicated that he had no memory of events from prior to the motorcycle ride to the following day when he woke up in the hospital. However, at his subsequent criminal trial, he gave detailed testimony regarding the motorcycle ride and the accident. The trial judge ruled that his discovery evidence from the civil action was admissible for the purpose of impeaching his credibility. He was convicted of dangerous driving causing bodily harm.
The Court of Appeal unanimously allowed the appeal, finding that it turned on the Supreme Court of Canada’s holding in R. v. Henry that prior compelled testimony was, under both s. 13 of the Charter and s. 5(2) of the Canada Evidence Act, inadmissible against the accused in further proceedings, with the exception of a prosecution for perjury, even for the limited purpose of challenging credibility. It rejected the argument by the Crown that the appellant’s evidence on examination for discovery was not compelled because he could have sought either an adjournment of the discovery or a stay of the civil action until the criminal trial had concluded. It noted that these are only granted in exceptional circumstances, none of which were present here.
The Court also held that the trial judge erred in finding that the appellant was not entitled to the protection against self-incrimination because his testimony was given in the context of a civil action which was not for the purposes of assisting the Crown. The trial judge had concluded that for this reason, the quid pro quo underlying the protection against self-incrimination was not present. In finding that this protection should not be so narrowly restricted, the Court noted that there is nothing in the s. 13 jurisprudence which suggests that it is only engaged where a witness’s prior testimony assisted the Crown, and, rather, that the section refers to “[a] witness who testifies in any proceedings”. The Court also disagreed with the trial judge’s characterization of the appellant’s giving of evidence in the civil action as furthering his own private interest, noting that he was the defendant in that action.
The Court distinguished this situation from the “implied undertaking rule” at issue in Juman v. Doucette, [2008] 1 S.C.R. 157. In that case, the plaintiffs in a tort action, a child who had suffered a seizure while at a daycare and her parents, were permitted to provide the transcript of the defendant childcare worker’s evidence given on examination for discovery to the police, for the purposes of a criminal investigation against her. The Court noted that there was no Charter issue at stake in those circumstances, as there was a distinction between the use of the evidence for investigative purposes and its use in a criminal trial if charges had been subsequently laid. They found it had no relevance to the appeal. The Court set aside the conviction and ordered a new trial.
February 24, 2011
Link to Decision
Julia Wilkes
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