"In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so."

R. v. Jorgge, 2013 ONCA 485 is a very clear statement that a judge may not consider the possibility that an accused tailored their evidence to meet evidence already heard. The Court writes:



[12] There is a natural temptation to reason as the trial judge did in this case. But this reasoning was improper because it subverted the appellant’s right to be present at his trial. Under s. 650(1) of the Criminal Code, accused persons have a statutory right, indeed an obligation, to be present at their trial. Section 650(1) is grounded in an accused’s right to a fair trial and right to make full answer and defence, which are now guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms: see R. v. Laws (1998), 41 O.R. (3d) 499, at p. 521; R. v. Czuczman (1986), 54 O.R. (2d) 574, at pp. 576-577.

[13] Yet in her assessment of the appellant’s credibility, the trial judge turned the appellant’s right to be present at his trial against him. The trial judge was entitled to consider the inconsistencies between the appellant’s statement to the police and his testimony at trial. She was not, however, entitled to attribute those inconsistencies to his presence at the voir dire.

[14] In a series of three cases – R. v. White (1999), 42 O.R. (3d) 760; R. v. Schell (2000), 148 C.C.C. (3d) 219; and R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230 – this court has condemned the kind of reasoning used by the trial judge to reject the appellant’s evidence. In White and Schell, the court held that it was improper and unfair for the Crown to suggest an accused’s evidence was not credible because the accused had testified after receiving full disclosure.

[15] In White, Doherty J.A. recognized the logic in the notion that accused persons can tailor their evidence to fit the disclosure they have received. Nonetheless, he wrote at p. 767-8:

The line of questioning set out above seems calculated to suggest to the jury that the appellant's evidence was somehow suspect because he had received full disclosure and had not been subject to cross-examination prior to choosing to testify at trial. Not only are the suggestions improper, they are potentially prejudicial. As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons. Where any such suggestion seeps into the cross-examination of an accused, it must be eradicated by the trial judge.

[16] Rosenberg J.A. made the same point in Schell at paras. 56-57:

It was also an error to permit Crown counsel to cross-examine the appellant on his use of disclosure. The appellant had a constitutional right to disclosure of the Crown’s case through pre-trial disclosure and he had a statutory right to be present for the prosecution’s case at the preliminary inquiry. This was not a case where cross-examination on some aspect of the disclosure was a legitimate step in a proper cross-examination as in R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont. C.A.). Also see R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.). Unfortunately, this improper conduct did not end with the cross-examination. Crown counsel also used this evidence in his jury address:

Chin [the deceased], as I said, cannot testify—the accused can. He has had a long time to think about it. He has had full disclosure. He is able to have listened to the preliminary hearing and the testimony here. And, quite frankly, he is in a position to tailor his evidence and just tell you as much as he wants to and as little as he wants to: and I submit that is what he has done. He has had a convenient memory in certain areas and relies on panic in another. [Emphasis in original omitted.]

It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights.

[17] Finally, in Thain, Sharpe J.A. similarly held that it was improper for the trial judge to have taken into account the accused’s receipt of disclosure in assessing his credibility. In that case, the trial judge held that “[t]he accused’s credibility must be assessed bearing in mind that his explanation comes long after disclosure was available to him and having regard to the totality of the evidence.” At para. 25 of his reasons for allowing the appeal, Sharpe J.A. said: “In my view, in the circumstances here, the fact that the appellant received disclosure could not properly or fairly be said to bear upon the assessment of his credibility.”

[18] The context for these three cases differs from the case before us, but the underlying principle is the same. In those other cases, either the Crown or the trial judge improperly used an accused’s right to disclosure to discredit the accused’s testimony. In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so.