Court of Appeal for Ontario
Date: 2026-02-10 Docket: COA-25-CR-1196
Lauwers, Sossin and Pomerance JJ.A.
Parties
Between:
His Majesty the King — Respondent
and
Kishoyian Kipusi — Appellant
Counsel
Kishoyian Kipusi, acting in person
Sonya Shikhman, as duty counsel
Kevin Rawluk, for the respondent
Heard: January 7, 2026
On appeal from the convictions entered by Justice Julie Bourgeois of the Ontario Court of Justice, on April 25, 2025, and from the sentence imposed on August 12, 2025.
Pomerance J.A.:
I. OVERVIEW
[1] The appellant, Kishoyian Kipusi was convicted of four counts of criminal harassment and one count of breach of release conditions and received a conditional sentence of 5 months followed by 15 months of probation. He appeals his convictions, and alternatively appeals his sentence. For the reasons that follow, I would allow the appeal of his convictions and order a new trial.
[2] Dr. Julian Gojer, a forensic psychiatrist, conducted a court ordered assessment of the appellant on the question of whether he was not criminally responsible by reason of mental disorder ("NCR"). Dr. Gojer concluded that there was not sufficient evidence to ground an NCR defence.
[3] During the assessment process, the appellant made various statements to Dr. Gojer. The Crown sought to introduce those statements at the appellant's trial. Unfortunately, no one adverted to the fact that these were "protected statements" for purposes of s. 672.21 of the *Criminal Code*, R.S.C. 1985, c. C-46, and were presumptively inadmissible, subject to certain exceptions.
[4] The proceedings gave rise to unfairness in three respects:
(1) There was no voir dire to determine admissibility of the protected statements and, if admissible, the limited use to which they could be put;
(2) The Crown called Dr. Gojer to testify about the appellant's statements before putting the statements to the appellant in cross-examination, thereby failing to comply with ss. 10 and 11 of the *Canada Evidence Act*, R.S.C. 1985, c. C-5 (the "CEA");
(3) The Crown failed to advise the defence that it would be seeking to introduce the protected statements. In the result, the appellant did not know the full extent of the case he had to meet when he made the decision to testify at his trial.
[5] In the result, the verdicts cannot stand, and a new trial must be ordered.
[6] I will explain this conclusion in the reasons that follow.
II. BACKGROUND
a. Dr. Gojer Prepares a Report
[7] The controversy pivots on a report that Dr. Gojer authored, as part of a court ordered assessment of the appellant pursuant to s. 672.11(b) of the Criminal Code, to evaluate whether the appellant was NCR (the "Gojer Report"). Dr. Gojer concluded that the appellant was not NCR. This report, which contained various statements the appellant made to Dr. Gojer, was filed with the court and made an exhibit at trial.
b. The Appellant Retains New Counsel
[8] Shortly thereafter, the lawyer who was representing the appellant was removed from the record. The appellant retained new counsel to represent him at the trial. That lawyer was not aware of Dr. Gojer's report. The Crown did not disclose this report to counsel. Nor did the Crown advise that it would seek to cross-examine the appellant on statements contained in the Gojer Report if he took the stand to testify.
c. Counsel Requests a Mistrial
[9] The appellant testified in his own defence, and cross-examination began.
[10] The Crown then announced that it was seeking to introduce the testimony of Dr. Gojer. The Crown's stated reason for doing so at that time is not entirely clear on the record before this court. [^1] Counsel for the appellant sought a mistrial on the basis that Dr. Gojer's report had not been disclosed. The appellant's lawyer also argued that Dr. Gojer was a person in authority, such that the court was required to conduct a voir dire into the voluntariness of the statements.
d. The Mistrial is Denied
[11] The trial judge rejected the request for a mistrial, finding that the appellant would have been aware that he spoke to Dr. Gojer, and that the report did not fall within the scope of the Crown's disclosure obligation. As she put it:
From what I understand in this case as well, what is the disclosure request of the initial disclosure might not have triggered the flag from the virtual Crown's responsible for the disclosure to see this as perhaps something additional to be disclosed in the sense of something that is – that could have been helpful, of course, but not in the sense of an elem [sic] – it is not a natural element of disclosure in this case as a result of the history of how this report became in the hands of the parties. I am satisfied that Mr. Kipusi would have known that he participated in that. I agree with defence, however, that it does not automatically makes it such that the – he would know the implication of that, I totally agree with that. But at – that it would at least been obvious that it exists. This is more than just the information being available or part of the public record, it is on this information on this matter. So, I think it – the court information is so clear that it cannot be said that it is a surprise. It is a surprise for this counsel because it was, as I said, misplaced. But it does not make it a disclosure item or obligation on the Crown so, I cannot say that there was a breach as a result. In relation to – so, I suppose that ends the – because there was no breach.
e. Dr. Gojer Testifies
[12] The mistrial having been denied, the Crown called Dr. Gojer to testify as an expert in forensic psychiatry. The Crown asked Dr. Gojer to opine on whether the appellant was NCR. The Crown then elicited evidence of statements the appellant made to Dr. Gojer. After Dr. Gojer testified, the Crown's cross-examination of the appellant resumed.
f. Reasons for Judgment
[13] The trial judge rejected the appellant's testimony, citing, as part of her analysis, the inconsistencies between the appellant's trial testimony and the statements he made to Dr. Gojer. This is revealed in the following passages:
In cross-examination he testified that he first realized she did not want contact with him after he received papers from the police while at the hospital in May 2023. But there was no name on the papers so, he did not know it was related to [the complainant]. Then he goes on to say he was in a psychosis at the time but he gave those papers to his lawyer. However, he was not understanding what was happening around him. This is all contrary to the information he gave Dr. Gojer about his release conditions.
The relationship was clearly over by at least September 1st, 2023. She did not respond to any of his letters or voicemails during that period of time and there could be no confusion about the end of their relationship, at least by then. She did not respond to any of his letters or messages. Mr. Kipusi attempts to draw a romanticized picture of their relationship. The voicemails he left for her seem to run afoul such romance. He also tries to justify his actions by his mental state at the time or plainly, blaming his lawyer at the time, that he did not know who the court document related to. I reject his evidence. This is also contrary to what he told Dr. Gojer.
In addition, he testified that the voice told him his personal belongings were in that white car and that he felt something on his left shoulder pushing him towards that car but he did not know she was in the car and did not see her in the car. This is the type of testimony that could raise concerns about criminal responsibility. But I do not accept his evidence. I accept Dr. Gojer's evidence that he did not tell him he heard voices that night. [Emphasis added.]
III. THE ISSUES
[14] This case turns on the following issues:
(1) Did the trial judge err in permitting the Crown to lead evidence of the appellant's statements made to Dr. Gojer without conducting a voir dire on the admissibility of the protected statements?
(2) Did the trial judge err in permitting the Crown to lead evidence of the appellant's statements to Dr. Gojer before those statements were put to the Appellant in cross-examination; and
(3) Did the trial judge err in failing to grant a remedy for the failure of the Crown to disclose that it intended to use Dr. Gojer's testimony to impeach the appellant's credibility?
IV. ANALYSIS
a. Leading Protected Statements Without a Voir Dire
[15] The statements made by the appellant to Dr. Gojer were "protected statements", pursuant to s. 672.21 of the Code. That section provides as follows:
672.21 (1) In this section, protected statement means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
(a) determining whether the accused is unfit to stand trial;
(b) making a disposition or placement decision respecting the accused;
(c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;
(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;
(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or
(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.
[16] These were statements "made during the course and for the purposes of an assessment or treatment directed by a disposition". In the ordinary course, such statements are not admissible as evidence against an accused person, though there are some exceptions. Among them is that stated in s. 672.21(3)(f), which permits introduction of statements for the purpose of "challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously": *R. v. G. (B.)*, [1999] 2 S.C.R. 475, at para. 72.
[17] When this exception applies, the protected statements may only be used for impeachment purposes. They cannot be used to prove guilt. Unlike other statements of an accused person, which are admissible for their truth, s. 672.21(3)(f) provides protected statements are exclusively admissible to demonstrate inconsistency and thereby challenge the credibility of the trial testimony.
[18] As with all presumptively inadmissible evidence, the admissibility of the protected statements in this case should have been the subject of a voir dire: see generally *R. v. Sadikov*, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 30-31. There was no such voir dire in this case. Instead, the Crown was permitted to lead Dr. Gojer's evidence without any discussion of the limitations on what the witness could say, or how the evidence could be used. Dr. Gojer was qualified as an expert in the area of forensic psychiatry, he expressed the opinion that the appellant was not NCR, and he testified about various statements the appellant made to him.
[19] In the absence of a proper voir dire, the trial judge did not assess whether the appellant's statements to Dr. Gojer qualified for the statutory exception, which required that the statements be inconsistent with his trial testimony "in a material particular". Furthermore, while the trial judge appeared to use the Gojer statements for impeachment purposes -- she cited apparent inconsistencies between those statements and the appellant's trial testimony -- there was no express acknowledgement that the statements were not admissible for their truth and could not be used as a "make-weight" to buttress the case for the prosecution.
b. Failure to Comply with Section 11 of the CEA
[20] The appellant's trial unfolded in an unorthodox fashion. The appellant testified in chief. During cross-examination, the Crown interrupted the defence case and called Dr. Gojer to testify. The purpose for calling Dr. Gojer remained unclear.
[21] During submissions on the mistrial application, the Crown stated that the appellant's testimony "clearly raise[d] the issue of NCR". The Crown sought to proffer Dr. Gojer as an expert witness in the area of forensic psychiatry. However, the appellant did not advance an NCR defence at trial. The appellant put his mental state in issue to some extent when he testified that he had heard voices. Yet, if the Crown's true motive for calling Dr. Gojer was to counter an NCR defence, the evidence would not have been called during the case for the defence, mid-way through cross-examination of the appellant.
[22] If, conversely, the Crown was calling Dr. Gojer merely to introduce the appellant's prior statements, there was no need for Dr. Gojer to have been qualified as an expert. In that scenario, Dr. Gojer was a "fact" witness -- attesting to what was said -- rather than an expert offering a specialized inference opinion. As a fact witness, Dr. Gojer's credentials, and his qualification as an expert were beside the point. The Crown having qualified Dr. Gojer as an expert, there was a risk that his credentials might imbue his testimony with an aura of infallibility: *White Burgess Langille Inman v. Abbott and Haliburton Co.*, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17.
[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 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 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), 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.
[29] By calling Dr. Gojer first, and conducting the cross-examination of the appellant second, the Crown in this case put the cart before the horse. Dr. Gojer's evidence was admissible to prove the statements, in the event that the appellant did not acknowledge making them. If, however, the appellant acknowledged making the statements, as he ultimately did in cross-examination, the evidence proving the statements would have been unnecessary.
[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.
[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] 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] 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] 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] 2 S.C.R. 350, and *R. v. P. (M.B.)*, [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), 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.
DISPOSITION
[45] For these reasons, I would allow the appeal, quash the appellant's convictions and order a new trial.
Released: February 10, 2026 "P.D.L."
"R. Pomerance J.A."
"I agree. P. Lauwers J.A."
"I agree. L. Sossin J.A."
[^1]: The record before this court did not contain complete transcripts of all of the proceedings at trial. It did, however, include: examination-in-chief, cross-examination, and re-examination of the appellant; examination-in-chief and cross-examination of Dr. Gojer; and submissions made on the mistrial application.