The Court of Appeal for Ontario released a decision this past week overturning the convictions registered at trial in a case involving the defence of NCR, the Crown’s improper use of protected statements made by the accused in the course of an assessment, and the unfairness that resulted. The full decision in Kipusi is available here.
For any defendant in a criminal trial, the decision to take the witness stand is an agonizing, high-stakes gamble. It is the moment they waive their constitutional right to silence, to tell their side of the story, knowing they must survive the gauntlet of cross-examination. But a fair trial requires an informed playing field, not a minefield. What happens when a private conversation with a court-appointed psychiatrist, which was intended for a mental health assessment, is suddenly brandished as a weapon to dismantle a defendant’s credibility without warning by the Prosecution? In the trial of this accused, that tactic was allowed. However, the Court of Appeal for Ontario has weighed in and said that resulted in an unfair trial, intervening to overturn the conviction.
In the recent decision of R. v. Kipusi (2026 ONCA 86), the Ontario Court of Appeal (ONCA) confronted a series of procedural “unorthodoxies” that effectively turned a psychiatric assessment into a prosecution trap. By quashing the conviction and ordering a new trial, the Court sent a clear message: the pursuit of “truth” does not grant the State license to ignore the rules of evidence or trample the fundamental right to a fair defence.
Here are four critical takeaways on why procedural rigor is the only thing standing between a fair trial and a trial by ambush, and why it matters.
1. The Foundational Law s.672: Why Confessions to a Psychiatrist Aren’t Public Property
When a court orders a psychiatrist to assess whether a defendant is Not Criminally Responsible (NCR), the system encourages—and necessitates—unfiltered honesty. To protect this clinical environment, Section 672.21 of the Criminal Code establishes “protected statements.” These are not standard pieces of evidence; they are presumptively inadmissible.
The law provides a narrow “safety valve” under Section 672.21(3)(f), allowing these statements to be used solely to challenge credibility. However, the Court in Kipusi emphasized a high threshold: the trial testimony must be inconsistent in a material particular with the protected statement. Not every minor slip-up or linguistic nuance during a stressful assessment opens the door to this evidence.
As the Court noted in paragraph [15], this protection is the statutory bedrock of the assessment process:
“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.”
These protections exist to ensure defendants can speak freely during mental health evaluations without fearing their vulnerability will be harvested to convict them later. In Kipusi, the Crown’s failure to treat these as protected statements led to a systemic breakdown of trial fairness.
2. The Sequence of Truth: Why You Can’t Ambuscade a Witness
In a fair trial, the order of events is not a suggestion; it is a safeguard. Under Sections 10 and 11 of the Canada Evidence Act (CEA), if the Crown intends to prove a witness lied by using a prior statement, they must first confront the witness with that statement. This gives the witness the chance to admit, deny, or explain the discrepancy.
The Crown in Kipusi took a path the Court described as “unorthodox.” In a move that created profound disorientation for the defence, the Crown interrupted its own cross-examination of the defendant to call the psychiatrist, Dr. Gojer, to the stand.
By calling the doctor before finishing the cross-examination, the Crown “put the cart before the horse” (Para [29]). This tactical maneuver denied the defendant the opportunity to address the statements before the “expert” evidence was leveled against him. This isn’t just a technicality; it is a matter of trial economy. As the Court noted, if the defendant had simply admitted to the statements, there might have been no need to call the doctor at all. Instead, the sequence was used to maximize the tactical disadvantage to the accused.
3. Trial by Ambush: The Constitutional Right to Disclosure
A fundamental tenet of justice under Section 7 of the Charter is the accused’s right to know the “case-to-meet”, a core principle. An accused person must know the strength of the State’s hand before they decide to waive their right to silence.
In Kipusi, the Crown failed to disclose its intention to use the Gojer Report for impeachment. The trial judge dismissed this, reasoning that Kipusi “knew” he had spoken to the doctor. The Court of Appeal sharply corrected this: the issue was not whether Kipusi remembered the conversation, but whether he knew the Crown intended to use those words as a tactical trap during his testimony.
Citing R. v. Underwood, the Court hammered home that “knowledge of the case to meet” is a principle of fundamental justice. An accused should know the consequences of testifying before they make the irrevocable decision to take the stand. Because Kipusi didn’t know the Crown would weaponize a psychiatric report that was ostensibly irrelevant to his defence, he could not make an informed choice about his right to remain silent.
4. The Aura of Infallibility: When Experts Morph into Fact-Checkers
There is a profound danger when the State qualifies a witness as an “expert” merely to introduce a defendant’s past statements. In Kipusi, the Crown qualified Dr. Gojer as an expert in forensic psychiatry to address whether the appellant was NCR, despite the fact that the defence never raised an NCR defence.
Since the defendant only mentioned “hearing voices” but didn’t claim he wasn’t responsible for his actions, the Crown was essentially solving a “problem” the defence hadn’t posed. The result? Dr. Gojer, who was effectively acting as a “fact witness” (recounting what was said), was granted the status of an expert.
The Court of Appeal warned that this imbues a witness with an “aura of infallibility” (Para [22]). The lack of a voir dire—the essential “safety rail” of a trial, meant the judge never set limits on how this powerful evidence could be used. Without that guard rail, the doctor’s credentials were allowed to unfairly bolster the prosecution’s case, blurring the line between specialized medical opinion and simple factual contradiction. A problem that can often happen when expert witnesses blur the lines between their credentials and the evidence they are giving. It is often confusing for the trial of fact (the jury) who, I would argue, tend to give a lot of weight to Doctors.
Conclusion: The Judicial Gatekeeper
The Ontario Court of Appeal’s decision to quash the accused’s convictions is a stern reminder that the court must act as a check on the “power imbalance between the state and the individual” (Para [36]). In Kipusi, that check failed.
This case serves as a warning for a legal era where court-ordered psychiatric assessments are becoming routine. We must ask: how do we ensure the pursuit of “truth” doesn’t become a license to trample the fundamental right to a fair trial? When the rules governing protected statements are ignored and procedural sequences are mangled for tactical gain, the trial ceases to be a search for justice and becomes an exercise in the prosecution’s power. Procedural rigor is not a luxury; it is the only way to ensure the witness stand does not become a trap.
Our firm works with clients to ensure their procedural interests are protected. We have experience in cases involving mental health and justice, psychiatric assessments and the defence of Not Criminally Responsible. If you have questions about these issues, reach out for a consultation.
