WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Citation: R. v. Desjourdy, 2012 ONCJ 648

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEVEN DESJOURDY

Before Justice T. Lipson

Reasons for Ruling released on October 15, 2012

C. Webb .................................................................................................................... for the Crown

W.V. Clifford and M. Edelson ....................................................... for the accused Steven Desjourdy

Lipson J.:

RULING ON CROWN APPLICATION TO CROSS-EXAMINE THE ACCUSED ON HIS PRIOR TESTIMONY

Background

[1] The accused, Steven Desjourdy, is employed by the Ottawa Police Service (OPS) and holds the rank of sergeant. He is charged with sexually assaulting the complainant S.B. The allegation arises out of an incident in the OPS cellblock on September 6, 2008 following S.B.’s arrest on a charge of public intoxication.

[2] S.B. was also charged with assault police. The Crown alleged that S.B. “mule kicked” and injured Special Constable Melanie Morris while she was searching S.B.in the same cellblock on September 6, 2008.

[3] S.B. was tried on the assault police charge by another judge of the Ontario Court of Justice who stayed her charge pursuant to s. 24(1) of the Charter after finding that S.B.’s sections 8 and 9 Charter rights had been violated. Sgt. Desjourdy testified as a Crown witness at the S.B. trial.

[4] In this application, the Crown seeks a ruling permitting cross-examination of Sgt. Desjourdy on his prior testimony in the S.B. prosecution should he testify in his own defence in these proceedings.

Positions of the parties

[5] The Crown submits that Sgt. Desjourdy’s testimony at the S.B. trial was not compelled. He was never required to attend court as a result of a Criminal Code court issued subpoena. Sgt. Desjourdy attended after receiving an “in-house” Ottawa Police Service court notification commonly referred to in the Ottawa courthouse as a “subpoena”. The Crown contends that the officer provided his evidence voluntarily. When Sgt. Desjourdy freely chose to become a police officer, he agreed to be bound by essential duties set out in section 42 of the Police Services Act, R.S.O 1990, c.P.15. Those duties include “laying charges and participating in prosecutions”. Testifying in court is an essential aspect of any police officer’s duties. The Crown contends that any alleged “compulsion” to testify was, in fact, “self-generated”. The mere possibility that the testimony Sgt. Desjourdy gave at the S.B. trial in fulfilling his voluntarily assumed statutory duty could later be used in an adversarial proceeding against him does not mean that he was coerced into giving his prior evidence. The Crown concedes that officers including Sgt. Desjourdy would feel obligated to testify, given the significant disciplinary consequences they potentially face under the Police Services Act if they do not fulfill their duty. It is submitted, however, that this does not make their evidence “coerced” or “compelled” within the meaning of section 13 of the Charter.

[6] The defence submits that should Sgt. Desjourdy testify in his own defence, he cannot be cross-examined on his prior testimony since that testimony was “compelled” and the use of such evidence against him would violate his right against self-incrimination protected by section 13 of the Charter. It is submitted that the accused was compelled to testify for the Crown in the S.B.prosecution by a ‘de facto’ subpoena issued to him by the OPS. In addition, he was statutorily compelled to attend pursuant to the Police Services Act under which he is bound as a police officer. It is submitted that once Sgt. Desjourdy was directed to testify at the S.B. trial, he had no real choice because of the serious disciplinary consequences had he not done so. It is also submitted that section 13 Charter rights are not modified or reduced for police officers and that Sgt. Desjourdy’s constitutional guarantees are not dependant on his current employment as a police officer.

The evidence on the application

[7] The court heard the testimony of Superintendant Michael Flanagan of the Ottawa Police Service and admitted documentary evidence relating to the central issue in this application of whether the testimony of Sgt. Desjourdy in the S.B. trial was compelled.

[8] It is common ground that Sgt. Desjourdy did not testify in the S.B. trial pursuant to a Criminal Code subpoena issued by a justice of the peace or a judge. Had Sgt. Desjourdy not attended to give attendance at the S.B. trial, the trial judge would not have had jurisdiction to issue a material witness warrant for his arrest.

[9] Instead, Sgt. Desjourdy received a written notification from the police court services case management section of the OPS (Exhibit A) that he was “required” to appear in court for the S.B. trial. On its face, this notification is referred to as a “subpoena” and has a “subpoena” number. The notification was sent by internal police e-mail to the officer. When the officer opened the message containing the notification, he was deemed by the OPS case management section to have been properly served. An accompanying attachment states that “your subpoena may reflect a multiple day trial.” Later the attachment reads “Members scheduled for annual leave that receive a court subpoena shall immediately, upon receipt, inform the Court Services section, in writing, (e-mail to Court Criminal Case Management) of this conflict in order to determine if his/her court attendance is required.”

[10] OPS Policy No. 6.02 (Exhibit D), in effect at the time of the S.B. trial, states: “Attendance at court is an important part of police work. Court attendance is part of a member’s duties, including proper preparation, appearance, deportment and timely attendance.” Under the title “Roles and Responsibilities”, the policy further reads “Members shall attend court under the direction of an ‘in-house’ electronic subpoena (approved by Case Management).” In the body of this policy directive the notification to attend court is referred to as a “subpoena to attend court” or “subpoena” or “subpoena for Criminal Court”.

[11] OPS Policy 6.03, (Exhibit I), also in effect at the time of the S.B. trial, tells officers who are lead investigators or officers in charge of a case (as was Sgt. Desjourdy in the S.B. prosecution) of their various responsibilities including attendance at court unless relieved of that responsibility by the Crown or a Judge. This policy document also refers to court notifications as “subpoenas”.

[12] An OPS General Order dated December 13 (Exhibit C) dealt with the procedure regarding a new procedure for receipt, acknowledgment of “e-mailed police subpoenas” and payment for court attendances. In this document the terms “subpoenas”, “police subpoenas for Criminal and POA Court”, “criminal subpoenas” are used interchangeably. This General Order replaced an earlier 1999 General Order (Exhibit B) which also referred to the court notifications from the OPS as “subpoenas” or “police subpoenas”.

[13] Exhibit E is an OPS court verification and payment form which requires the officer to list his or her respective “subpoena number”.

[14] Exhibit F is a photograph of a wooden box located in the Ottawa courthouse where officers are required to submit their “court slips with subpoenas” at each court attendance.

[15] Superintendant Flanagan has been employed by the Ottawa Police Service for approximately thirty years. He described the electronic e-mail process of court notification for OPS officers. He acknowledged that since 1999, Ottawa police officers are required to attend court not by means of a court issued Criminal Code subpoena but by police “in-house” e-mail notifications sent through the police criminal case management office located in the Ottawa courthouse. Since 2004 officers confirm service of any notification by simply opening up the email. These notifications are called “subpoenas” and have been “traditionally or historically” referred to by Ottawa police, judges, and lawyers as “subpoenas”. Civilian witnesses, on the other hand, are compelled to attend court by means of court issued subpoenas signed by a justice of the peace or a judge. Under the current system which also existed at the time of the S.B. prosecution, an officer who fails to attend court could not be the subject of a Criminal Code material witness warrant. However, the Ottawa Police Service Code of Conduct and the Police Service Act provide for disciplinary penalties for neglect of duty should an officer fail to attend court without a lawful excuse. Superintendant Flanagan agreed with the suggestion made by defence counsel that the Ottawa “police” subpoena issued to Sgt. Desjourdy was similar in “almost” all respects to a court issued subpoena. The witness opined that officers who receive a police subpoena are compelled to attend court and don’t have a choice as a result of force policy and the Police Services Act.

Self-incrimination and section 13 of the Charter

[16] The Crown’s application engages section 13 of the Charter and its interpretation by the Supreme Court of Canada.

[17] Section 13 provides:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[18] The underlying rationale for the existence of the Charter protection found in section 13 is described by Arbour J. in R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433 (S.C.C.) at para. 32 as follows:

When a witness provides evidence in any proceeding whether voluntary or under legal compulsion, he or she cannot refuse to answer a question that may tend to incriminate the witness, but is offered protection against the subsequent use of that evidence. The question before us is the extent of that protection. To answer that question, it is important to remember its root in the quid pro quo. The witness, now accused, gave something in exchange for the protection. This is what makes a statement given in a judicial proceeding different from a statement to a person in authority…and also different from all other out-of-court declarations and admissions.

[19] The leading case on the scope and protection afforded by section 13 is R. v. Henry, 2005 SCC 76, [2005] S.C.J No. 76 (S.C.C.) In Henry, the court was dealing with the retrial of an accused on the same indictment. The appellants in Henry argued that, notwithstanding the fact that they were not compelled to testify at their first trial, they ought nevertheless to have been protected as voluntary witnesses at their second trial from exposure to the contradictory evidence they gave at their first trial. The court held that, in such circumstances, s. 13 was not available to an accused who chooses to testify at his retrial on the same indictment.

[20] In R. v. Nedelcu, 2011 ONCA 143, [2011] O.J. No. 795 (C.A.) the accused had been a defendant in a civil action who was compelled to attend for examination for discovery and provide testimony concerning a motor vehicle accident he was involved in. At his criminal trial for dangerous driving, the trial judge admitted Nedelcu’s statement from the examination for discovery for the purpose of impeaching his credulity at the criminal trial. The Court of Appeal allowed the appeal and held that the accused was compelled to attend for examination for discovery and to provide evidence. This engaged the protection of section 13 of the Charter. Nedelcu is an important post Henry case not only for its result but also for the useful summary provided by Armstrong J.A. at paras. 21-25 describing the principles and underling policy of section 13 explained by the Supreme Court in Henry:

The Supreme Court's last word on s. 13 of the Charter is Henry. In that case, the court reviewed its prior jurisprudence on s. 13 in Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272, R. v. Kuldip, 1990 CanLII 64 (SCC), [1990] 3 S.C.R. 618, R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433 and R. v. Allen, 2003 SCC 18, [2003] 1 S.C.R. 223.

Binnie J., writing for the court, referred to the section's historical roots and purpose at para. 2 of Henry:

The right against self-incrimination is of course one of the cornerstones of our criminal law. The right to stand silent before the accusations of the state has its historical roots in the general revulsion against the practices of the Star Chamber, and in modern times is intimately linked to our adversarial system of criminal justice and the presumption of innocence. Section 13 of the Charter gives constitutional protection to a more specific privilege against testimonial self-incrimination. In Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the Court stated at p. 358 that

the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d) is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. [Emphasis in Henry.]

The court in Henry described the right protected in s. 13 as follows at para. 25:

Section 13 of the Charter precludes "incriminating evidence" given in one proceeding from being "used to incriminate that witness in any other proceedings". Incriminating evidence means "something 'from which a trier of fact may infer that an accused is guilty of the crime charged'": Kuldip, at p. 633.

The court at para. 22 of Henry also alluded to the rationale for the protection granted by s. 13 as described by Arbour J. in Noël at para. 21:

Section 13 reflects a long-standing form of statutory protection against compulsory self-incrimination in Canadian law, and is best understood by reference to s. 5 of the Canada Evidence Act [R.S.C. 1985, c. C-5]. Like the statutory protection, the constitutional one represents what Fish J.A. called a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony. [Emphasis in Henry.]

Most importantly, the court in Henry abandoned the distinction made in the earlier s. 13 cases between prior testimony being used to incriminate an accused and being used to impeach an accused's credibility. The court concluded at paras. 49 and 50 that the distinction was unrealistic:

Noël is a classic example of prosecutorial abuse of the very "bargain" s. 13 was designed to enforce. Noël was not on trial at the time he gave the testimony subsequently relied upon by the Crown. He was a compellable witness who at common law could have refused to answer the Crown's questions that tended to show his guilt. He was compelled by s. 5(1) of the Canada Evidence Act to answer the incriminating questions, and in consequence he invoked the protection of s. 5(2). When s. 5(2) says "the answer so given shall not be used or admissible in evidence", it means not to be used for any purpose, including the impeachment of credibility. We should affirm the correctness of the result in Noël on its facts.

I would go further. Even though s. 13 talks of precluding the use of prior evidence "to incriminate that witness", and thus implicitly leaves the door open to its use for purposes other than incrimination such as impeachment of credibility (as Kuldip accepted), experience has demonstrated the difficulty in practice of working with that distinction. If, as Noël held, and as Arthur Martin J.A. observed in Kuldip, the distinction is unrealistic in the context of s. 5(2) of the Canada Evidence Act, it must equally be unrealistic in the context of s. 13 of the Charter. Accordingly, by parity of reasoning, I conclude that the prior compelled evidence should, under s. 13 as under s. 5(2), be treated as inadmissible in evidence against the accused, even for the ostensible purpose of challenging his or her credibility, and be restricted (in the words of s. 13 itself) to "a prosecution for perjury or for the giving of contradictory evidence". [Emphasis in original.]

Analysis

[21] Was the testimony of Sgt. Desjourdy in the S.B. trial compelled and therefore protected by section 13 of the Charter?

[22] At the outset, I would note that the Crown’s case has concluded. Sgt. Desjourdy has not yet elected whether to testify or call other witnesses. Mr. Webb, on behalf of the Crown, brought this application on the basis of what he anticipates Sgt. Desjourdy’s defence may be should he testify. Crown counsel is of the view that there is potentially significant impeachment material from Desjourdy’s prior testimony at the S.B. trial should the accused choose to testify at his trial. Counsel for the Crown and defence agree that it is unnecessary for the court to examine Desjourdy’s testimony from the S.B. trial in order to properly rule on this application.

[23] Section 13 of the Charter does not explicitly refer to “compelled” testimony. However, in Henry, the Supreme Court of Canada held that section 13 provides protection against “compelled” testimony. The section gives constitutional protection to a specific privilege against testimonial self-incrimination. As pointed out by the authors of the Law of Evidence in Canada, 3rd edition, 2009, at page 513:

[Section 13’s] purpose , when viewed in the context of s. 11(c) and (d) is to protect individuals from being indirectly compelled to incriminate themselves, something that is expressly prohibited by s. 11 (c) and (d) of the Charter. Accused persons who choose to testify at both their first trial and their retrial are voluntary rather than compelled witnesses at both trials. There is no compulsion and no quid pro involved in their testimony... Underlying the Court’s conclusion in Henry is a clear policy concern. The Court acknowledged that to permit the accused to tailor their testimony at successive trials by preventing exposure to contradictions in their account would call into question the credibility of the trial process, a result far beyond the intended purpose of s. 13.

[24] I wish to set out in some detail the Crown’s argument. Mr. Webb takes the position that even though Sgt. Desjourdy was a Crown witness and not an accused when he gave his prior testimony, his evidence was, nevertheless, voluntary and not compelled. In fact, the Crown goes even further and contends that the officer’s testimony would have been voluntary, whether or not he was required to testify at the S.B. trial by a court issued subpoena. The Crown submits that when Sgt. Desjourdy freely chose to become a police officer, he did so with full knowledge of what that decision entailed. When he joined the police force and took his oath of office, he willingly agreed to be bound by his essential duties. Section 42 (1) (e) of the Police Services Act provides that two of the essential duties of police officers are “laying charges and participating in prosecutions”. To effectively fulfill this duty, police officers are required to testify in criminal court. Giving evidence in criminal court is a routine duty of any police officer. The Crown submits that, as a result, any alleged compulsion or coercion to testify is, in reality, “self-generated”. It is submitted that the fact that officers may face significant disciplinary consequences under the Police Services Act if they do not fulfill their duty to testify does not, in of itself, make their evidence coerced by the state within the meaning of section 13.

[25] In support of its position, the Crown relies on two section 7 Charter cases dealing with potentially self-incriminating notes kept by police officers and records kept by federally regulated fishermen. In R. v. Schertzer, [2007] O.J. No 3560 (S.C.J.) the trial judge held that even though there are severe punitive consequences under the Police Services Act that potentially apply to police officers who omit to create records or falsify their notes, this did not preclude a finding that the notes were not coerced. The trial judge held that the admission of the police notes did not violate the principle against self-incrimination. The Crown also relied on the Supreme Court of Canada decision in R. Fitzpatrick, (1995) 1995 CanLII 44 (SCC), 102 CCC 3d) 144 (S.C.C.) where it was held that the principle against self-incrimination did not prevent the prosecution from using reports that commercial fishers were required by statute to make and file with the government regarding the size of their catches, as evidence for the purpose of prosecuting the fishers for the offence of over-fishing. That is because fishers voluntarily assume the obligations and punishments of the regulatory regime in which they choose to participate.

[26] In urging this court to find that the prior testimony of Sgt Desjourdy was voluntary, the Crown referred to the same factors of an analytic framework used by the trial judge in Schertzer. Those factors were (i) the presence of state coercion (i.e. was the prior evidence compelled); (ii) the existence of an adversarial relationship; (iii) concerns regarding unreliable confessions; and (iv) the possibility of abusive state conduct.

[27] The Crown argues that the most critical factor favouring a finding that Sgt Desjourdy’s prior testimony was voluntary is the fact that there did not exist any adversarial relationship between Sgt. Desjourdy and the state at the S.B. trial. In fact, they were allies in the prosecution of S.B. Mr. Webb also submits that it seems “counterintuitive” that our system of justice should extend constitutional protection to a police officer who, while testifying as a prosecution witness, gives evidence that implicates him in criminal activity. It is also submitted that removing section 13 protection for prior testimony given by police officers and thereby exposing their prior evidence to scrutiny (in the unfortunate circumstances that is necessary) can only enhance the truthfulness and reliability of the evidence they give in criminal proceedings. As well, granting use immunity for police officer testimony can only exacerbate and perpetuate any alleged abuse of power by the state. It is submitted that most members of the public would be troubled at the prospect that the evidence that an officer gives to incriminate an accused could not be used against the officer if it turns out that the officer committed a criminal offence against that person.

[28] The nub of the Crown’s argument is that Sgt. Desjourdy’s personal decision to become a police officer several years ago should be considered as a concession that any testimony he gives as a police officer thereafter is voluntary rather than compelled. In effect, by joining the police force and thereby being duty bound to testify in criminal prosecutions, Sgt. Desjourdy gave up his protection against self-incrimination afforded by section 13 of the Charter.

[29] With respect, I reject the proposition advanced by the Crown that section 13 Charter rights are modified or reduced for police officers. In my view, the accused’s constitutional guarantees are not dependant on his current employment. Sgt. Desjourdy is not a member of a class of persons that have diminished section 13 rights. The Crown was unable to cite any authority where prior compelled testimony was exposed to cross-examination in the context of a criminal trial. The cases upon which the Crown relies upon deal with the issue of compellability in either the context of regulatory proceedings (Fitzpatrick) or procedural and section 7 legal rights regarding police notebook entries (Schertzer), as opposed to any criminal cases involving prior testimony.

[30] It is important to remember the context in which the accused’s claim arises. It is made pursuant to section 13 of the Charter which specifically addresses self-incrimination. In this case the section 13 protection claimed is in the context of a criminal case and the origin of the testimony from which the protection is claimed also arose from a criminal trial where the Crown called Sgt. Desjourdy to testify. Put simply, Schertzer and Fitzpatrick are section 7 Charter cases dealing with documents, not testimony. As the court explained in Fitzpatrick at para. 49:

The principle against self incrimination under section 7 of the Charter should not be understood to elevate all records produced under statutory compulsion to the status of compelled testimony at a criminal or investigative hearing.

[31] Section 13 of the Charter protects compelled testimony. I agree with the observation made by Justice Paciocco and Professor Stuesser in the Law of Evidence, 6th edition, 2011, at page 296 that the court in Henry wanted to avoid delving into the difficult question about whether, at the earlier proceeding, the accused wanted to testify or did so only because of compulsion. In support, the authors cite an excerpt from para. 34 of the judgment where the court stated that for the purpose of section 13, “evidence of compellable witnesses should be treated as compelled even if their attendance was not enforced by subpoena.” In my respectful view, this statement is a simply a reflection of the policy considerations underlying section 13 of the Charter which Arbour J. described in Noël at para. 33 as follows:

When a witness who is compelled to give evidence in a proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony.

[32] On the issue of compelled versus volunteered testimony, it seems to me that the determinative factor is not whether Sgt. Desjourdy chose a career as a police officer or even whether he willingly testified in the S.B. prosecution. The real issue is whether the accused’s testimony in the S.B. trial was compulsory even though his attendance was not compelled by a court issued subpoena.

[33] The evidence on the voir dire and the applicable section 13 Charter jurisprudence persuade me that the testimony Sgt. Desjourdy was compelled for two reasons. The first reason is that in the S.B. trial, he was a compellable witness called by the Crown to testify for the prosecution. Once called as a witness, he could not refuse to answer questions posed by counsel. As a witness in the S.B. trial, he was required to provide testimony even if such testimony proved to be self-incriminating. As well, the evidence establishes that as a consequence of his clear duty to testify in criminal court proceedings as mandated by the Police Services Act and the Ottawa Police Service Code of Conduct, his attendance and participation as a witness in the S.B. trial was compulsory.

[34] With respect to the first reason why Sgt Desjourdy’s prior testimony is protected by section 13 of the Charter, I make the following observations. When Henry refers to an accused not being “compelled” to testify, the court was referring to the specific situation of an accused who cannot be compelled to testify at either his first or subsequent trial because of constitutional and common law guarantees. The following excerpt from para.33 of Henry, in my view, makes this clear:

The emphasis in Noël on the quid pro quo reinforces the link between s. 13 of the Charter and s. 5 of the Canada Evidence Act and the whole issue of compelled testimony. It must be recognized that a witness who was also the accused at the first trial is at both trials a voluntary rather than a compelled witness, and therefore does not offer the same quid pro quo. (The notion that an accused who volunteers testimony can simultaneously object to answering questions whose answers may tend to incriminate him or her is a difficult concept. The whole point of volunteering testimony is to respond to the prosecution's case. Even answers to his or her own counsel's questions may tend to incriminate.)

[35] There is no quid pro quo for an accused who testifies at his own trial. It is quite different for an ordinary witness who testifies at a trial. There is a quid pro quo because the court demands from the witness full and frank testimony. Sgt. Desjourdy’s prior testimony at the S.B. trial cannot be characterized as voluntary when any refusal on his part to answer questions as a witness would potentially result in judicial sanctions as well as prosecution under the Police Services Act. Section 13 of the Charter applies to any witness who provides compelled testimony. The protection afforded by the section does not distinguish between a police witness and a non-police witness.

[36] With respect to the second reason, I find that the only reasonable conclusion to be drawn from the evidence on the voir dire is that it was compulsory for Sgt Desjourdy to testify in the S.B. trial. A police issued electronic notification called a “subpoena” required him to attend. Virtually all of the documentation and procedure, regarding “the subpoena” refers to it as such. This notification has a “subpoena number”. The evidence is that Crown attorneys, defence lawyers and judges in Ottawa refer to the existence of “subpoenas” for police officers. Courts are advised that like other witnesses, officers are “subpoenaed” or “under a subpoena”. There can be no doubt that these police issued court notifications are held out to be subpoenas. Sgt Desjourdy was compelled to testify for the Crown in the S.B. trial not only by a de facto subpoena but also because he was statutorily compelled under the Police Services Act, under which he is bound by a police officer. There are wide ranging and serious consequences for any officer who chooses to ignore a police “subpoena” under the Police Services Act including prosecution of neglect of duty and/or committing an act of discreditable conduct. The accused was statutorily compelled under this provincial legislation. Police policy reinforces in writing that attending court is a fundamental principle of policing. It also worth noting that in addition to the compulsion created by a police subpoena and the Police Services Act, the failure of a public officer to perform a statutory duty can constitute misfeasance in public office which is an intentional tort: Odhavji Estate v. Woodhouse,2003 SCC 69, [2003] S.C. J. No. 74. Police disciplinary tribunal decisions have rightly referred to the duty of police officers to attend court as “a cornerstone of the justice system”. I have carefully reviewed the documents entered into evidence in this application concerning the system of police court notifications used in Ottawa. There is nothing in this evidence which suggests that the subpoena an officer receives is anything other than a court issued subpoena. There can be no doubt that officers issued police subpoenas, would conclude that that this kind of court notification is legally binding. There is nothing in the evidence to suggest otherwise.

[37] It should be kept in mind that, as is the case for any witness, the protection afforded by section 13 of the Charter to Sgt. Desjourdy is not limitless. Section 13 provides exceptions to the general rule that earlier testimony cannot be used to incriminate a witness. Testimonial dishonesty on the part of an accused can result in a prosecution for perjury or for giving contradictory evidence. Although section 13 may prohibit the admission or the use of prior inconsistent testimony, this does not mean accused persons can change their story with impunity. Rather, they do so at their own peril. Penalties for perjury or giving contradictory evidence with intent to mislead can be up to 14 years imprisonment. As well, a sentencing court would consider the effect of the perjury or contradictory evidence and the nature of the proceedings in which it took place.

[38] For all of the above reasons, the Crown’s application to cross-examine Sgt. Desjourdy on his prior testimony is dismissed.

Released: October 15, 2012 Justice T. Lipson