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Evidence - CEA - Cross-Examination [CEA s.10-11]. R. v. Kipusi
In 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 considered CEA s.10 ['Cross-examination as to previous statements'] and s.11 ['Cross-examination as to previous oral statements'], regarding the need to 'put the statements to' the witness before they were impeached on them:[23] It may be that the Crown was attempting to prove inconsistent statements that the Crown intended to use in cross-examination. Yet, if the statements were to be used for impeachment purposes, it was incumbent upon the Crown to first put those statements to the appellant so that he could: (a) testify about whether he made those statements; and (b) offer an explanation for any apparent inconsistencies.
[24] The trail judge’s approach ran afoul of s. 11 [SS: 'Cross-examination as to previous oral statements'] of the CEA, which provides:11 Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement. [25] Section 10 [SS: 'Cross-examination as to previous statements'] of the same Act provides:10 (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit. [26] Sections 10 and 11 set, as a precondition to admission of extrinsic evidence of either an oral or written statement, the requirement that the cross-examiner give the witness notice of the statement. This provides the witness with the opportunity to explain or elaborate on the statement either in cross-examination or re-examination.
[27] Section 11 of the CEA requires that counsel in cross-examination advise the witness of the time, place and person involved in the prior statement and draw the witness’ attention to the substance of the statement. This includes when the witness is the accused. As Rosenberg J.A. held in R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 518, similar requirements apply whether the prior statement is oral as when it has been reduced to writing.
[28] Section 11 is rooted in considerations of trial economy, and fairness to the adversary and to the witness: Pargelen, at p. 520. If the witness, including an accused witness, admits to having made the statement, there is no need to call extrinsic evidence to prove the statement.
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[30] A trial judge retains a discretion to admit extrinsic evidence notwithstanding non-compliance with s. 11 of the CEA. However, caution is warranted when the evidence is proffered by the Crown against an accused witness: Pargelen, at p. 525. One of the factors to consider is whether, at the time the accused testified, he or she was aware, through Crown disclosure, of the nature of the proposed reply evidence: Pargelen, at p. 525. That condition was not met in this case. I will turn to that now.
c. Failing to Grant a Remedy for Non-Disclosure
[31] The Crown did not disclose Dr. Gojer’s report to the defence. As the trial judge observed, this was not a typical disclosure problem. In denying a mistrial, the trial judge found that the report did not fall within the scope of conventional disclosure obligations and, further, that the appellant was well aware that he had spoken to Dr. Gojer for purposes of an NCR assessment. On this basis, the trial judge held that the appellant could not have been surprised by the introduction of Dr. Gojer’s evidence at the trial. The report was filed as an exhibit in the trial record.
[32] With respect, the reasoning on the mistrial application misses the point. The issue was not whether the appellant knew that he had participated in the assessment. He was clearly aware of that. The question is whether the appellant knew that the Crown was going to use the statements made to Dr. Gojer to impeach the appellant’s credibility. This was part of the case that the appellant had to meet. The appellant was entitled to know that the Crown would use the Gojer statements when he made the critical decision whether or not to testify at his trial.
[33] In other words, the issue is not disclosure of the report per se. The issue is disclosure of the Crown’s intention to use the report to contradict the appellant’s version of events should he testify, given that the appellant did not advance an NCR defence and the Gojer Report consisted of protected statements.
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