Simon's Megalomaniacal Legal Resources

Criminal - Right to Silence (2)

. R. v. KipusiIn R. v. Kipusi (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions for "four counts of criminal harassment and one count of breach of release conditions".

Here the court considers the right to silence (and it's tactical factors), and it's relation to failures to disclose:

[34] The decision to testify is one of the most significant decisions undertaken by an accused individual in a criminal case. An accused person enjoys the right to silence and cannot be compelled to testify. When an accused person chooses to waive the right to silence, and offer testimony, the accused is exposed to challenge by way of cross-examination. In order for a decision to testify to be informed, the accused must understand the case that he or she has to meet. That includes disclosure of evidence that might be used for impeachment purposes.

[35] For example, before making a decision to testify, an accused person is entitled to know whether his or her criminal record will be introduced under s. 12 of the CEA, or whether the trial judge will exercise a discretion to exclude all or some of the accused’s prior convictions. In R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, the Supreme Court stressed the importance of the accused having this information before deciding to testify. As summarized in the recent case of R. v. Hussein, 2026 SCC 2, at para. 50:

In R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, this Court held that an accused is entitled to a ruling on their Corbett application at the close of the Crown’s case, before they decide whether to testify (para. 7). The extent to which an accused’s criminal record is admissible encompasses part of the case to be met by the accused. Knowledge of the case to be met is a principle of fundamental justice protected by s. 7 of the Charter (para. 6).

[36] In Underwood, at para. 5, the court stressed that when an accused is deciding whether or not to testify, the accused “should know as much as possible about the consequences of that decision in advance of having to make it.” At para. 6, the court described the “case-to-meet” principle as a fundamental tenet of the criminal justice system, firmly rooted in the common law and an integral part of the principles of fundamental justice, which are protected by s. 7 of the Canadian Charter of Rights and Freedoms: Underwood, citing R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451. It is part of the broader principle against self-incrimination, which has its roots in the presumption of innocence and the power imbalance between the state and the individual: Underwood, at para. 6, citing Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, and R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 578.

[37] In a similar vein, an accused is entitled to know what, if any, bad character evidence might be in the possession of the Crown before deciding to testify. Where the Crown is in possession of bad character evidence, fairness dictates that the accused be aware that such evidence might be tendered if he or she puts character in issue: R. v. Hutter (1993), 1993 CanLII 8478 (ON CA), 16 O.R. (3d) 145 (C.A.), at pp. 153-54.

[38] In these instances, the question is not whether the accused knows, in the abstract, that the evidence exists. In the criminal record context, the accused likely knows what his or her prior convictions are. Similarly, the accused may be conscious of his or her prior acts of bad character. The pertinent question is whether the accused is aware of the risk that the evidence will be introduced against him or her at his or her trial.

[39] So too here, the question on the mistrial application was not whether the appellant was aware of the statements that he made to Dr. Gojer. He knew that he made certain statements to Dr. Gojer. The question was whether the appellant was aware that the Crown might introduce the statements he made to Dr. Gojer in an attack on the appellant’s credibility. The need for such disclosure was important here, given that Dr. Gojer’s report related to an issue that was not raised at the trial. The appellant did not advance an NCR defence, and therefore had no reason to expect that the Crown would lead evidence that he was not NCR. The subject matter of Dr. Gojer’s report was not, on its face, relevant to the material issues at trial.

[40] Additionally, the statements were themselves presumptively inadmissible as protected statements, as per the analysis set out above. This was another reason why neither the appellant nor his counsel would have contemplated that the Crown would rely on the Gojer Report, absent a voir dire to determine admissibility.

[41] In the result, when the appellant decided to testify, he did not know of the full range of potential consequences of that decision. He was not apprised of the case he had to meet, and the case that would be levelled against him if he took the witness stand.

[42] Thus, contrary to the trial judge’s finding, the failure to disclose the Crown’s intended use of the Gojer Report did have the potential to adversely impact on the fairness of the trial. By the time the Crown sought to introduce Dr. Gojer’s testimony, the appellant had already testified in-chief, a decision that could not be undone.

[43] It does not necessarily follow that a mistrial was the appropriate remedy. It is well settled that a mistrial is a drastic remedy, that is not to be granted lightly. It should be granted only as a last resort, where no remedy short of that relief will adequately redress the actual harm occasioned: R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. J.H., 2020 ONCA 165, at para. 61. It was open to the trial judge to consider a lesser remedy, such as the exclusion of Dr. Gojer’s evidence from the trial evidence, on the basis that its probative value was outweighed by its prejudicial effect.

[44] All of this is hypothetical, given that the trial judge found no actionable non-disclosure. Suffice to say, even if the non-disclosure, standing alone, did not call for a remedy at that stage of the process, the combined effect of the non-disclosure and the additional errors discussed above compels the conclusion that the appellant did not have a fair trial. The appellant was not aware that the Crown would call Dr. Gojer; Dr. Gojer’s testimony was not subject to a voir dire on admissibility; and Dr. Gojer’s testimony was introduced before the appellant was given an opportunity to admit to the statements in question. The appellant is, in my view, entitled to a new trial.