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| John L. Hill |
Kipusi was charged with criminal harassment and breach of a release condition. Forensic psychiatrist Dr. Julian Gojer conducted a court-ordered assessment to determine whether Kipusi was not criminally responsible (NCR) by reason of a mental disorder. Kipusi dismissed his defence counsel and retained a replacement who was unaware of the Gojer report.
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On Aug. 12, 2025, Kipusi was sentenced to a five-month conditional sentence, followed by 15 months of probation. Kipusi appealed to the Ontario Court of Appeal, changing horses once again, this time representing himself as a self-represented litigant (although Sonya Shikhman assisted him as duty counsel). The court allowed the appeal and ordered a new trial, with reasons delivered on Jan. 7, 2026 (R. v. Kipusi, 2026 ONCA 86).
The appeal concerned the Crown’s use of a court-ordered psychiatric assessment report (Gojer report) prepared to determine whether the appellant was NCR. Gojer concluded that the appellant was not NCR. The report, which included statements from the appellant, was filed with the court.
On appeal, three main issues were raised:
(1) Failure to hold a voir dire:
Kipusi’s statements to Dr. Gojer were “protected statements” under s. 672.21 of the Criminal Code. They were presumptively inadmissible except in limited circumstances, including to impeach credibility if materially inconsistent with trial testimony. The trial judge erred by admitting the statements without conducting a voir dire to determine whether the statutory exception applied, and by failing to clarify that the statements could be used only for impeachment, not for their truth.
(2) Improper use of prior statements (Canada Evidence Act, s. 11):
The Crown called Dr. Gojer to prove the prior statements before first confronting Kipusi with them during cross-examination. Sections 10 and 11 of the Canada Evidence Act require that a witness be allowed to admit, deny or explain an alleged prior inconsistent statement before extrinsic evidence is introduced. The Crown “put the cart before the horse,” breaching this procedural fairness requirement.
(3) Failure to remedy non-disclosure:
Although Kipusi knew he had spoken to Dr. Gojer, he was not informed that the Crown intended to use those protected statements to impeach him if he testified. The key issue was not merely the disclosure of the report, but the disclosure of the Crown’s intended use of it. An accused must know the “case to meet” before deciding whether to testify, a principle rooted in fundamental justice and the right against self-incrimination. Kipusi made the critical decision to testify without knowing the Crown would rely on the Gojer statements. This undermined trial fairness.
Kipusi’s statements to Dr. Gojer were “protected statements” under s. 672.21 of the Criminal Code. They were presumptively inadmissible except in limited circumstances, including to impeach credibility if materially inconsistent with trial testimony. The trial judge erred by admitting the statements without conducting a voir dire to determine whether the statutory exception applied, and by failing to clarify that the statements could be used only for impeachment, not for their truth.
(2) Improper use of prior statements (Canada Evidence Act, s. 11):
The Crown called Dr. Gojer to prove the prior statements before first confronting Kipusi with them during cross-examination. Sections 10 and 11 of the Canada Evidence Act require that a witness be allowed to admit, deny or explain an alleged prior inconsistent statement before extrinsic evidence is introduced. The Crown “put the cart before the horse,” breaching this procedural fairness requirement.
(3) Failure to remedy non-disclosure:
Although Kipusi knew he had spoken to Dr. Gojer, he was not informed that the Crown intended to use those protected statements to impeach him if he testified. The key issue was not merely the disclosure of the report, but the disclosure of the Crown’s intended use of it. An accused must know the “case to meet” before deciding whether to testify, a principle rooted in fundamental justice and the right against self-incrimination. Kipusi made the critical decision to testify without knowing the Crown would rely on the Gojer statements. This undermined trial fairness.
Although a mistrial is a drastic remedy, the combined effect of the errors set out above — including the non-disclosure of the intended use, the failure to hold a voir dire and the improper sequencing of impeachment evidence — deprived the appellant of a fair trial. As a result, the appeal was allowed, the convictions were quashed and a new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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