It is quite common for motor vehicle accidents involving serious injuries to result in both criminal charges and charges under the Highway Traffic Act, as well as a civil trial. And although there are several differences in criminal and civil proceedings (notably, with respect to different opposing parties, the standard of proof, and the disclosure of evidence), the Canadian system of justice generally acknowledges that when the same evidence is re-litigated in another court, it is a waste of resources and creates a risk of inconsistent results and thus offends the administration of justice. As a result, someone who pleads guilty to charges in connection with a car accident in a criminal proceeding faces the risk that their guilty plea and conviction will be accepted as evidence of their admission of liability in a related civil proceeding. For this reason, it is extremely important for anyone who is facing criminal charges, such as impaired driving or dangerous driving, to immediately consult with an experienced criminal lawyer, not only to obtain strong representation on their criminal charges but also to prevent a potentially negative outcome in their civil action from affecting their criminal case and vice versa.

A recent case, R. v. Nedelcu, addressed the question of whether a defendant’s evidence in his examination for discovery in a related civil matter could be used as evidence and in cross-examination in his criminal trial. The deciding issue at the heart of this case is whether the Crown can cross-examine the accused in a criminal trial regarding inconsistent statements given in a prior action, without infringing on their right against self-incrimination.

The civil and criminal proceedings both arose from a Brampton motorcycle accident that resulted in permanent brain damage for the passenger on a motorcycle, Vincente Perdon. The driver, Marius Nedelcu, was giving his co-worker, Mr. Perdon, a ride on his motorcycle after work, when he crashed into a curb, causing both men to be thrown from the bike. Mr. Nedelcu was charged with dangerous driving causing bodily harm and impaired driving causing bodily harm. He was also sued for damages by Mr. Perdon and his family, in a civil action. Mr. Nedelcu was convicted of dangerous driving and acquitted on the charge of impaired driving. He subsequently appealed his dangerous driving conviction.

Mr. Nedelcu’s examination for discovery in his civil proceeding took place before the trial of his criminal matter. During his examination for discovery in the civil lawsuit, the defendant testified that he had no memory of the events surrounding the accident after he awoke in the hospital where he had been taken for treatment of his minor injuries. However, one year later in his criminal trial, the defendant gave a detailed account of the day of the accident, including a recollection of his day at work as well as an in-depth description of the ride with his co-worker, including exactly how the accident occurred. In cross-examination, he admitted that he had 90 to 95 percent memory of the circumstances surrounding the accident. Following cross-examination, a copy of the transcript from the civil proceeding was presented to the court and Crown counsel requested leave to cross-examine Mr. Nedulcu for the purpose of impeaching his credibility based on the contradictions in his testimony.

In deciding whether the defendant’s evidence given in the related civil action could be used in his cross-examination in the criminal trial, the trial judge considered section 13 of the Canadian Charter of Rights and Freedoms as well as relevant provisions within the Rules of Civil Procedure. Section 13 of the Charter states that “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.” However, the trial judge concluded that the Charter did not protect the defendant from using his testimony to challenge his credibility, noting that there is no “quid pro quo” arrangement between the Crown and the civil courts. Further, the judge asserted that the defendant did not give his evidence under compulsion or assist the Crown in furthering justice, which may have earned him protection against using that evidence against him. Rather, the evidence in his examination for discovery was given in a civil action in which the Crown is uninterested and not involved; and also, the evidence was given to further Mr. Nedelcu’s own interests. Therefore, the trial judge held that the accused’s evidence from the examination for discovery could be used to challenge his credibility at his criminal trial.

In R. v. Nedelcu (2011), the accused appealed the trial judge’s 2007 decision and the Ontario Court of Appeal set aside Mr. Nedelcu’s conviction and ordered a new trial. The Court decided that the Crown’s reliance on the Supreme Court decision in Juman v. Doucette did not apply in this case because the facts in Juman did not address a Charter issue, rather, the Court’s decision to allow the police and the Crown to obtain a transcript from a civil proceeding was for investigative purposes, not about the use of the transcript in a criminal trial. In Juman, the court gave Vancouver police and the Attorney General access to transcripts from a civil action against a childcare worker for her alleged negligence in causing brain injury to a 16-month-old child in her care. The appeal court in Nedelcu also found that the trial judge erred in his application of s. 13 of the Charter when he stated, “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.” Rather, the Court of Appeal cited R. v. Henry and asserted that the prior compelled evidence should be treated as inadmissible evidence against the accused, even for the purpose of challenging his credibility and should be limited to a prosecution for perjury or for the purpose of giving contradictory evidence.

In R. v. Nedelcu (2012), with three judges dissenting, the Supreme Court of Canada set aside the Court of Appeal’s order for a new trial and restored the guilty verdict on the charge of dangerous driving. This decision was based on the following argument. Although Mr. Nedelcu was compelled to testify at the examination for discovery in his civil action, because the evidence he gave at the time was non-incriminating evidence, the use of such evidence for impeachment purposes does not trigger the application of s. 13 of the Charter. Incriminating evidence is evidence provided in a prior proceeding by a witness that the prosecution could later use to prove guilt if it were permitted to do so. The fact that the Crown may possibly convert otherwise non-incriminating evidence into incriminating evidence if it takes additional steps to do so, is not sufficient to trigger section 13. In the case of Nedelcu, the Court found that the use of the accused’s discovery evidence only for the purpose of testing his credibility does not in itself convert this evidence into incriminating evidence. However, one of the arguments posited by a dissenting judge, Justice LeBel, is that the prior inconsistent statements made by Mr. Nedelcu clearly assisted the Crown in proving its case and therefore s. 13 should apply in protecting his statements from disclosure.

The implications arising from this case, for situations where a civil proceeding precedes a criminal trial, is that a person who gives incriminating evidence is protected under s. 13 of the Charter, whether or not the evidence is deemed to be truthful. Further, the evidence from a prior proceeding cannot be used against them in a subsequent proceeding, except in the case of a perjury charge. However, this protection is not unqualified or absolute, and a trial judge must decide whether evidence presented by the Crown meets the definition of ‘incriminating’ evidence. Also, one of the dangers of allowing the Crown to bring up inconsistencies in testimony as evidence, argued by Justice LeBel, is that the defendant in a civil proceeding who has a criminal trial pending may not be forthright in their civil testimony in the fear that any changes in their statements may be introduced in the criminal trial with the purpose of challenging their credibility.

At Kruse Law, we take great care to properly advise our clients who have both criminal and civil cases pending, to ensure that they are fully prepared for, and understand how testimony in their civil proceeding may influence their criminal trial. If you are facing criminal charges for a driving related offence, contact a skilled lawyer at Kruse Law to ensure a thorough and prudent defence that fully considers your best interests with respect to your criminal and civil proceedings.

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