In ALG Blog

Section 13 of the Charter is Canada’s version of a constitutional guarantee against self-incrimination. It is meant to encourage people to testify without fear that they will hang themselves with their testimony. But for a long time, no one knew what the rule meant. It had a checkered history as a civil libertyJudges’ efforts to interpret it spawned unworkable tests.

Seven years ago in R. v. Henry the Supreme Court of Canada swept away the confusion. It declared all prior compelled testimony “off limits” in subsequent proceedings. Then at the end of 2012, it took a step back. In Nedelcuit exhumed an old test, drawing a line between evidence used to “impeach” and evidence used to “incriminate.” It narrowed the circumstances in which prior testimony qualifies for constitutional protection…and replaced a simple constitutional rule with a complex one.

After a serious motorcycle accident, Nedelcu faced criminal charges and a civil suit. At his examination for civil discovery, he said he had no memory of the events. At his criminal trial fourteen months later, he gave a detailed account of the accident. The Crown cross-examined Nedelcu on the inconsistency. Unsurprisingly, the trial judge convicted him.

When the case reached the Supreme Court of Canada, the Court split in a 6-3 ruling. The majority and minority disagreed on when prior compelled testimony becomes “incriminating” and engages s. 13 of the Charter. The majority (Moldaver J.) resuscitated the distinction between incrimination and impeachment that the Court abandoned in Henry. It held that prior testimony used only to impeach is admissible. Prior testimony that incriminates is not. Because the Crown used Nedelcu’s discovery evidence to test his credibility and nothing else, his prior testimony was not incriminating evidence.[1] In reaching this conclusion, the Court discarded a sound legal principle without technically overruling it.

Is the parrot dead or resting?

Henry was a decisive interpretation of s. 13. Normally, the Court will not reverse a decisive ruling unless there is a substantial likelihood it is wrongly decided. By framing its decision as an “explanation” rather than a reversal, the Nedelcu Court avoided this high threshold. The Court minimized its departure from Henry by focusing on one part of the definition of “incriminating evidence” – at the expense of the rest. The Henry definition included evidence used for the purpose of challenging credibility and was intended to be expansive.

The Court’s analytical acrobatics avoided the difficult question: was the Henry test actually wrong? Lawyers, lower court judges and academics say no. Had the Supreme Court addressed this question — put to it by the Crown on the appeal – it would have been forced to say no as well.

Admittedly, applying Henry would have led to an unpalatable outcome. It would have allowed a liar to change his story without consequence at his trial. Of course he could have been prosecuted for giving contradictory evidence, but this would not have satisfied those who dislike the s.13 civil liberty in the first place.


The “new” test creates procedural uncertainty

This test will be tricky to apply. It is a gift to the Crown and a minefield for the defendant who testifies. The inherent blurriness of the rule means it will be hard to warn clients in advance how a judge will view their prior evidence – or how a Crown will make use of it.  This makes it hard to advise clients that testifying in civil or other proceedings before their criminal trial is smart or safe. In many cases, delay or avoidance will serve the defendant (but not the administration of justice). Previously this was just not true.


Henry, we hardly knew ya

More than one cynic has suggested that all the fuss is misplaced. We should save our outrage for the idiots who lie under oath and skew the result for truthful litigants. Those who make this point tend to forget that there is a cost to every civil liberty. The right to privacy is enjoyed by both drug dealers and the rest of us. The right to counsel is invoked by the guilty and the innocent alike. The Charter of Rights is not an optional honour code available only to the most deserving.  The sooner this becomes an accepted truth the easier it will be to accept the boundaries the constitutional rule of law imposes. Nedelcu could easily have been prosecuted for an offence related to his apparent testimonial dishonesty without messing up an important constitutional rule.


[1] The minority (LeBel J.) rejected the distinction between “incrimination” and “impeachment,” finding this test was overly complex and potentially unfair to an accused. It found the majority decision incompatible with Henry. Does your head hurt yet?

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