After work one evening, N took the victim for a ride on his motorcycle on their employer’s property. The motorcycle crashed into a curb, causing the victim permanent brain damage. N sustained minor injuries and was hospitalized overnight. N was charged with dangerous driving causing bodily harm and impaired driving causing bodily harm. He was also sued in a civil action by the victim and his family. During his examination for discovery in the civil matter, N testified that he had no memory of the events from the day of the accident until he woke up in the hospital the following day. At his criminal trial, however, N gave a detailed account of the events leading up to and during the accident. Having been granted leave to cross-examine N on his discovery evidence, the Crown asked N about his memory of the events. N stated, “I have a recollection about 90, 95 percent”. N’s trial testimony was found to be unreliable and he was found guilty of dangerous driving causing bodily harm. The Court of Appeal allowed N’s appeal. The trial judge’s ruling was overturned, the conviction was set aside and a new trial was ordered.
Held (LeBel, Fish and Cromwell JJ. dissenting): The appeal should be allowed, the order for a new trial set aside, and the guilty verdict on the charge of dangerous driving causing bodily harm restored.
Per McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and Karatkatsanis JJ.:
Although N was statutorily compellable and therefore compelled for the purpose of s. 13 of the Charter to testify at his examination for discovery in the civil action, the use of his non-incriminating discovery evidence for impeachment purposes could not and did not trigger the application of s. 13. Section 13 is not directed to “any evidence” the witness may have been compelled to give at the prior proceeding, but to incriminating evidence.
Incriminating evidence is 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 or more of the essential elements of the offence for which the witness is being tried. Where the evidence given by the witness at the prior proceeding could not be used by the Crown at the subsequent proceeding to prove the witness’s guilt on the charge for which he or she is being tried, the prior evidence is not “incriminating evidence”.
The mere possibility that evidence, which is otherwise “non-incriminating”, can be converted into “incriminating” evidence if the Crown were to take the added steps needed to make it so, is not enough to trigger the application of s. 13. The use of N’s discovery evidence to test his credibility, and nothing else, could not convert his discovery evidence into incriminating evidence. The discovery evidence would retain its original characteristics and it would not become evidence from which the triers of fact could infer guilt.
While it is true that N’s inconsistent discovery evidence might lead the triers of fact to reject his trial testimony, rejection of an accused’s testimony does not create evidence for the Crown — any more than the rejection of an accused’s alibi evidence does, absent a finding on independent evidence, that the alibi has been concocted.
On this construction of s. 13, neither the truthful witness nor the perjurer need be concerned that any incriminating evidence given by them at a prior proceeding will be used against them, for any purpose, at a subsequent proceeding for anything other than perjury.
While this approach might impinge ever so slightly on clarity and predictability, clarity and predictability should not be pursued at the expense of rewriting s. 13 to remove critical words that alter the meaning of the section and impermissibly extend its protection beyond its intended purpose. Trial judges will have little difficulty deciding whether evidence put forward by the Crown meets the test for “incriminating” evidence as defined. It would of course be incumbent on trial judges to provide juries with clear instructions as to the use they could make of the evidence given at the prior proceeding.
On its own, N’s discovery testimony could not have been used by the Crown to prove or assist in proving one or more of the essential elements of the criminal charges he was facing. While his inconsistent discovery evidence might lead the triers of fact to reject his trial testimony, rejection of an accused’s testimony does not create evidence for the Crown.
Per LeBel, Fish and Cromwell JJ. (dissenting): The right against self-incrimination lies at the heart of our justice system and is enshrined in the Canadian Charter of Rights and Freedoms. It is intimately linked to the right to stand silent in the face of one’s accuser, to the presumption of innocence and to the notion that the Crown must prove its case beyond a reasonable doubt without any assistance from the accused.
Section 13 only applies when the quid pro quo is engaged: a witness’s evidence is compelled in exchange for a guarantee that the Crown will not use that evidence against that person in another proceeding is engaged. The focus of the s. 13 analysis should be on compulsion. Evidence should be treated as compelled where there is a statutory route by which the witness could be compelled to give evidence. Whether or not that route is actually taken does not change the fact that it was available and could have been taken. It would be unprincipled to give a lesser degree of Charter protection to a witness who testifies willingly than to a witness who must be subpoenaed or otherwise forced to give evidence, if both could have been statutorily compelled to testify in any event.
Similarly, the focus should not be on the nature of the statements. While s. 13 refers to using “incriminating statements” to “incriminate”, parsing an accused person’s testimony to distinguish what is “incriminating” from what is “innocuous” in order to determine on what parts of his or her testimony the accused may be cross-examined might result in a protracted and unpredictable classification exercise. That distinction is just as unworkable as the previously abolished distinction between using prior compelled testimony to impeach credibility and using it to incriminate the accused. It is especially difficult to draw that distinction because the focus of the right against self-incrimination is on the second proceedings, the time at which the previous testimony is sought to be used, rather than the time at which it is given. Any evidence that may assist the Crown in proving its case will have an incriminating effect and must therefore be subject to s. 13 protection.
The protection afforded by s. 13 is not lost when a witness gives what is perceived to be dishonest testimony. Although the quid pro quo is meant to encourage full and frank evidence, s. 13, in the context of the greater balancing of interests embodied in the Charter, dictates that the truth-seeking function of the trial give way to the right of the accused against self-incrimination. The quid pro quo is not a “contract” with a witness that can be nullified if the witness lies under oath. Prior compelled evidence can be used in a prosecution for perjury or for the giving of contradictory evidence. Laying criminal charges for perjury is the appropriate way to deal with witnesses who tailor their evidence to suit their needs in each particular proceeding without diluting the Charter rights of the accused. This approach maintains respect for the administration of justice while fully preserving the s. 13 right of the accused. It also avoids the need to conduct a voir dire, which would encumber the trial process, render the scope of s. 13 dubious in theory and uncertain in practice, discourage full and frank testimony, and reduce the scope of the s. 13 protection that previously compelled witnesses have had since R. v. Henry, 2005 SCC 76 (CanLII), 2005 SCC 76,  3 S.C.R. 609.
In this case, N was statutorily compellable to be examined for discovery, and therefore “compelled” within the meaning of Henry and for the purposes of s. 13. Whether he freely decided to attend the discovery proceeding is irrelevant because Rule 31.04(2) of the Ontario Rules of Civil Procedure compels a defendant in a civil action to be examined for discovery. Failing to file a statement of defence would not have allowed N to avoid coming within the grasp of the procedural rules that would compel his evidence, so whether he was actually noted in default is irrelevant. Despite the rather blatant inconsistencies in his testimony, s. 13 dictates that the truth-seeking function of the trial give way to the right of the accused against self-incrimination.