I really hate giving mea culpas. Just ask the partners of this law firm; or my wife! It therefore struck me like a Monday morning insurer's audit when I realized that the Supreme Court of Canada had recently meddled in, and reversed, a decision that I commented favourably upon in this Newsletter just over a year ago.
In our Winter 2011 edition, I wholeheartedly embraced the Ontario Court of Appeal's decision in R. v. Nedelcu (2011), 7 M.V.R. (6th) 10 and suggested that this well-reasoned judgment provided the green light for civil litigants to stop delaying their lawsuits because of a fear that the tortfeasor/accused might somehow have their examination for discovery evidence turned against them at a subsequent criminal trial.
At the time, I remarked that the Court of Appeal's decision made sense from a review of s. 13 of the Charter of Rights and Freedoms (i.e., the right against self-incrimination) and of the "deemed undertaking rule" in the Rules of Civil Procedure. It more importantly also encouraged our slow-as-molasses civil litigation process to pick up the pace as parties would no longer be at the mercy of waiting for an outcome from the similarly snail-paced criminal justice system. All of that advice is now, quite unfortunately, out the window.
A brief reminder of the facts: Nedelcu consumed alcohol before taking a passenger on his motorcycle and severely injuring him in an ensuing accident. Nedelcu was sued civilly and charged criminally. At his examination for discovery, he deposed that he did not have any memory of the events leading up to the accident whereas at the later trial, he testified the opposite. Through some dubious route, the transcript from that earlier discovery became available at the criminal trial and was used, in part, to convict Nedelcu. The Court of Appeal reversed the conviction on account of the law described above.
The Supreme Court provided the final word on this case in its late 2012 judgment that was split 6-3. Moldaver J., for the majority, in my respectful submission, tiptoed around the wording of s. 13 of the Charter in order to justify restoring the original conviction at trial.
Specifically, the majority of justices created a distinction between "incriminating" and "non-incriminating" evidence when considering the scope of the Charter's protections against being compelled to provide evidence against one's self. As the discovery transcript in this case was only used to impeach Nedelcu's credibility at trial, and was not used to bolster the Crown's substantive case against him, these justices found that no constitutional rights had been violated.
The majority went on to propose that trial judges will have little difficulty distinguishing between "incriminating" and "non-incriminating" evidence when determining what compelled civil evidence should be permitted in criminal proceedings. That is an amusing comment considering how much ink was spilt over the past half-century over the interpretation of "but for" in tort cases.
The minority, per LeBel J., quite correctly pointed out that the distinction raised is a superficial one that will only confuse and delay trials. The minority also pointed out that the proper course for dealing with those who lie under oath is not to compromise the well-founded principles of our constitution, but rather to initiate separate criminal perjury charges.
The take home message? First, I still hate giving mea culpas. Second, insurance counsel and adjusters alike should once again be cautious about providing their insureds for discovery while criminal charges are ongoing. To do otherwise would risk short-selling the insured who, it must be recalled, is owed a duty of loyalty by the insurer and its chosen counsel.
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