Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Soosay, 2023 ABCA 23, January 25, 2013, the accused was charged with murder. At his trial, the Crown sought to cross-examine him in relation to evidence he gave at the preliminary inquiry of a co-accused. The Alberta Court of Appeal indicated that the Crown “told the trial judge the purpose of cross-examination on the preliminary hearing transcript was to highlight some of the inconsistencies between the appellant’s evidence at trial and his evidence as a witness in his brother’s preliminary inquiry” (at paragraph 3).

The trial judge allowed the cross-examination and the accused was convicted.  He appealed from conviction, arguing that the cross-examination offended section 13 of the Charter, which states:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

The appeal was dismissed.  The Court of Appeal concluded that “the trial judge correctly stated and applied the law” (at paragraphs 14 to 16):

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 Henry2005 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.

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.

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.