Résumé des principes découlant de la protection contre les témoignages incriminants

R v Soosay, 2023 ABCA 23

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[14]           Cross-examining to incriminate is distinct from cross-examining to impeach credibility. The majority in Nedelcu highlights that distinction and clearly states that only incriminating evidence will trigger s 13 protection; s 13 is not triggered simply by compelled evidence of “any kind” nor does it extend protection to non-incriminating evidence: Nedelcu at para 29. “Incriminating evidence" is "something ‘from which a trier of fact may infer that an accused is guilty of the crime charged'": Nedelcu at para 29, citing R v Henry, 2005 SCC 76 at para 25, [2005] 3 SCR 609. Discerning (i.e., “parsing”) whether evidence in a prior proceeding meets that threshold and is “incriminating” in the above sense is not unusual in criminal trials.

[15]            The appellant’s evidence about his shirt was similar to the evidence discussed in Nedelcu, where the accused had no memory of specific events at the preliminary inquiry but recalled those same events in detail at the trial. In this case, at the preliminary inquiry, the appellant did not recall where he left his shirt. At his trial, the appellant had a significantly enriched memory about the shirt. The trial judge did not find evidence about the shirt to be material. It did not factor into his analysis beyond the stated concern – if the appellant was not consistent on minor, less relevant, or irrelevant details, the trial judge may not be able to trust him on more important issues.

[16]           In our view, the trial judge correctly stated and applied the law. Section 13 is directed at the use of earlier evidence after its character has been assessed in the proceeding in which a party seeks to use it. The trial judge was careful to consider the impugned evidence considering s 13 and its stated purpose. His reasons for allowing the evidence are found at para 602:

[…]

•      s. 13 applies to a witness who was “compelled” to testify in prior proceedings; Mr. Soosay was subpoenaed to testify in the PS Preliminary Inquiry and his trial is an “other proceeding” within the meaning of s. 13.

•   s. 13 does not immunize from cross-examination on all evidence given in the prior proceeding (it is not a “blanket” immunity).

•   s. 13 does immunize from having “incriminating evidence” given in the prior proceeding used to “incriminate that witness” in the subsequent proceeding.

•   “the time for determining whether the evidence given at the prior proceeding may properly be characterized as ‘incriminating evidence’ is the time when the Crown seeks to use it at the subsequent hearing:” Nedelcu at para 16.

•      “incriminating evidence” is evidence that the Crown could use, if permitted, to prove guilt, evidence that could be used to prove or to assist in proving an essential element of the charged offence: Nedelcu at paras 9, 10.

•      evidence that could be used only for the purpose of causing the trier of fact to reject an accused’s trial testimony does not, by itself, create “incriminating evidence” for the Crown (rejected evidence is not evidence of guilt): Nedelcu at paras 21-23.

•   hence, the use for the purpose of impeachment alone of non-incriminatory evidence given in the prior proceeding is not forbidden by s. 13: Nedelcu at para 25.

•      […] cross-examination of Mr. Soosay by the Crown respecting the areas of Mr. Soosay’s PS Preliminary Inquiry testimony I permitted did not allow the Crown to use “incriminating evidence.” The evidence did not concern the facts material to the charge faced by Mr. Soosay and his defence to that charge, and was relevant for purposes of impeachment only.