Civil Evidence in a Criminal Proceeding

King v. Drabinsky, 2008 ONCA 566 (CanLII)

[14] Thus, under the Fifth Amendment, a defendant who is facing both civil litigation and criminal charges in the U.S. has the option either to waive his or her right to silence and to testify in the civil proceeding or to refuse to testify and run the risk of an adverse inference. In Canada, the testimony of a person who chooses to testify in a civil proceeding cannot be used as part of the prosecution's case against that person as an accused in any later criminal proceeding. However, any evidence that same person voluntarily gives in the civil proceeding may be used to cross-examine that person on a prior inconsistent statement should he or she testify as an accused at the subsequent criminal trial. See R. v. Henry, 2005 SCC 76 (CanLII), [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 202 C.C.C. (3d) 449.

[18] Regarding both their natural justice and meaningful opportunity defences, the appellants attempt to distinguish Levy on two bases. First, they argue that since the appellants were criminally charged in Canada, they did not have a meaningful choice to defend the U.S. proceedings. Charter protection was not available to them, the appellants say, because the Charter does not apply extraterritorially; any evidence they gave in the U.S. could be used against them in the Canadian criminal proceeding. Second, they argue that the extent of their self-incrimination would have exceeded the parameters found acceptable in Levy because, in this case, it would have been necessary for the appellants to give detailed evidence about their due diligence. Such detail would have provided the Canadian prosecution with a virtual discovery of the defence position that would have otherwise been unavailable, resulting in derivative evidence, and would have caused unfair prejudice. For the reasons that follow, I do not accept either argument.