Self-incriminating evidence at insured’s civil trial discovery cannot be used at insured’s criminal trial

An Ontario Court of Appeal decision in R. v. Nedelcu has provided a “strong message” that self-incriminating evidence given during an examination for discovery at an insured’s civil trial cannot be introduced at the insured’s criminal trial concerning the same matter.
“Adjusters and defence counsel can take solace in the fact that they can proceed through the discovery process [of the civil trial] with far less concern about potentially prejudicing their insured’s interests in an ongoing criminal action,” Paul E.F. Martin, an associate at Dutton Brock LLP, wrote in an article for the winter edition of Dutton Brock’s eCounsel.
“Of course though, a case-by-case analysis should nevertheless take place to ensure that there are no other problems associated with giving discovery evidence [at a civil trial], such as the possibility of inadvertently assisting the police investigation against the insured/accused if the transcript was somehow released, as was the case in Nedelcu.”
Martin noted the Appeal Court rejected the argument that the insured had control over evidence provided at his or her examination for discovery. Such control, the argument continues, meant the insured gave such evidence voluntarily, thus making it admissible in the criminal trial.
“The court correctly provided a strong message that evidence adduced at an examination for discovery is compellable in all circumstances,” Martin wrote. “Consequently, it cannot be introduced at the criminal trial even if the purpose of that evidence is merely to discredit credibility without opposing the substantive facts.”