Friday, February 25, 2011

Can evidence on examination for discovery in a related civil action can be put to an accused in cross-examination at the accused's criminal trial

R. v. Nedelcu, 2011 ONCA 143 says no:

[46] The trial judge in this case concluded his review of the application of s. 13 of the Charter as follows at para. 49:

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.

[47] With respect, the trial judge erred in the above conclusion. This case turns on what Binnie J. said in the concluding sentence of para. 50 of Henry:

[T]he prior compelled evidence should, under s. 13 as under s. 5(2) [of the Canada Evidence Act], be treated as inadmissible in evidence against the accused, even for the ostensible purpose of challenging his or her credibility, and be restricted (in the words of s. 13 itself) to "a prosecution for perjury or for the giving of contradictory evidence".

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