Court of Appeal for Ontario

Date: 2025-10-24

Docket: M56249 (C68514)

Panel: Huscroft, Dawe and Wilson JJ.A.

Parties

Between

His Majesty the King Applicant (Respondent/Moving Party)

and

Harris Nnane Respondent (Appellant/Responding party)

Counsel

Karen Papadopoulos, Jeremy Streeter and Eunwoo Lee, for the moving party

Nader Hasan and Spencer Bass, for the responding party

Scott Hutchinson and Tara Boghosian, for the intervener Justice Dirk Derstine

Heard: October 15, 2025

Decision

By the Court:

[1] This court dismissed a motion to introduce fresh evidence and dismissed the appeal in R. v. Nnane, 2024 ONCA 841, 174 O.R. (3d) 241 (Dawe J.A. dissenting). The appellant appealed to the Supreme Court as of right, and in the context of that appeal brought an additional fresh evidence application.

[2] On April 30, 2025, the Supreme Court made the following order:

In accordance with s. 46.1 of the Supreme Court Act, the motion to adduce further evidence is remanded to the Court of Appeal for Ontario for determination.

The record of the appellant's motion to adduce further evidence is sealed until further order of this Court or of a judge of the Court of Appeal for Ontario.

The appeal is held in abeyance pending the decision of the Court of Appeal for Ontario on the motion to adduce further evidence.

[3] The further evidence the appellant seeks to have admitted in his appeal is affidavit evidence from an eyewitness who did not testify at trial. In support of his application to adduce this evidence, he relies on an affidavit from his former trial and appellate counsel, Dirk Derstine, who was appointed a judge of the Superior Court after his affidavit was submitted. The Crown seeks to cross-examine both affiants.

[4] The appellant opposes the Crown's request to cross-examine Justice Derstine. Justice Derstine was permitted to intervene on this motion and also opposes the Crown's request.

The Parties' Submissions

[5] Section 683(1)(b)(ii) of the Criminal Code, R.S.C., 1985, c. C-46 authorizes appellate courts to make orders for the examination of witnesses. While the decision to order cross-examination of an affiant on a fresh evidence application is discretionary, there is no question that cross-examination is the norm, including when counsel have submitted affidavits. This happens routinely where ineffective assistance of counsel is raised as a ground of appeal and the appellant's former trial counsel has submitted an affidavit. All that is different in this case is that the appellant's former counsel is now a Superior Court justice.

[6] The Crown seeks to cross-examine Justice Derstine to explore statements in his affidavit that it says are difficult to reconcile with his conduct as trial and appeal counsel. The Crown expects to argue that Justice Derstine made a strategic decision not to pursue the evidence of the eyewitness at the preliminary hearing, at trial, or on appeal. The Crown notes that Justice Derstine has acknowledged meeting with the eyewitness before the hearing of Mr. Nnane's appeal to this court.

[7] The appellant argues that the Crown intends to challenge the credibility of Justice Derstine's evidence, and that this would undermine public confidence in the administration of justice. The appellant submits that although in R. v. Wolf, 2007 ONCA 327, this court permitted a sitting judge to be cross-examined on his actions as Crown counsel, the court noted that the examination sought only to test the reliability of the judge's memory, rather than his credibility.

[8] The appellant says that written interrogatories should be used in this case – at least initially – and if they prove insufficient the Crown could then move for cross-examination. The intervener adopts the same position.

Discussion

[9] This is not a case involving judicial immunity. The Crown does not seek to cross-examine Justice Derstine in relation to acts taken within his judicial role. That would clearly be off-limits, and no one suggests otherwise: see MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 828-33; R. v. Swaine, 2025 ONCA 614, at paras. 8-9. The Crown seeks to cross-examine Justice Derstine only on his affidavit detailing his conduct as counsel – conduct that pre-dates his appointment to the Superior Court and has nothing to do with his judicial function.

[10] The intervener asserted at several points in his factum and in oral argument that the Crown has not articulated a "good faith" basis for its proposed cross-examination of Justice Derstine. The short answer to this submission is that it is not required to do so at this stage: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 52. The ordinary consequence of a decision to submit affidavit evidence is that the affiant must submit to cross-examination. There is no basis to assert that the cross-examination that has not yet occurred is unnecessary, nor is there any basis to impugn the Crown's conduct in seeking to cross-examine.

[11] The decision in Wolf does not determine the outcome of this motion. The court's remarks in that case concerning credibility were descriptive: credibility was not in issue. Wolf does not stand for the proposition that judges are not amenable to cross-examination about matters prior to their judicial appointments if credibility is in issue.

[12] In any event, as the Crown argues, although reliability and credibility are distinct concepts the distinction may be artificial in the context of a cross-examination. Cross-examination designed to test reliability may give rise to concerns about credibility that then must be explored. In short, reliability and credibility are not silos.

[13] Assuming that written interrogatories are permitted by s. 683(1)(b)(ii) – a matter raised in Wolf but not determined – we do not accept that they are a substitute for cross-examination. Nor do we accept that the court should require written interrogatories prior to permitting cross-examination and permit cross-examination only if written interrogatories prove inadequate. This would unduly extend the proceedings, and it is not clear how the court would determine whether cross-examination remained necessary in any event. Moreover, requiring written interrogatories prior to cross-examination would undermine the efficacy of any subsequent cross-examination by precluding the Crown from following up on contentious answers spontaneously.

[14] The appellant and the intervener argued that rule of law values are at stake on this motion. We agree, but in our view those values are not served by shielding members of the judiciary from cross-examination concerning actions taken prior to their appointment as judges.

[15] We appreciate the concerns about the appearance of cross-examining a judge and the need to maintain the dignity of judicial office. However, the law officers of the Crown can be expected to conduct the cross-examination in the best traditions of the office of the Attorney General, fairly and respectfully. We are confident that they will do so.

[16] The motion is granted. Cross-examination will proceed in accordance with the procedure and schedule established in consultation with ACJO Fairburn, who is managing the appeal.

Released: October 24, 2025

"Grant Huscroft J.A."

"J. Dawe J.A."

"D.A. Wilson J.A."

Publication Note

[1] These reasons were released only to the parties and intervenor on October 24, 2025, to allow for further submissions on whether r. 27(10) of the Criminal Appeal Rules or any other provision or principle prohibited the publication of this judgment at this time, and, if so, when the judgment could be published, if at all. The parties both took the position that no provision or principle prohibited the publication of this judgment at this time. The intervenor took no position. As a result, this court ordered the publication of this judgment on November 5, 2025.