Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Breese, 2022 ONCA 482, June 22, 2022, the accused was charged with various offences arising out of a robbery.  He was self-represented at his trial.  He testified and denied committing the robbery. In cross-examination, he refused to answer certain questions. The trial judge explained the consequences of this refusal, as regards the trial, in the following manner:

[Y]ou must understand that your testimony, which will have essentially not been tested under cross‑examination, is not going to be entitled to receive any significant weight in this trial. So, if you are expecting that somehow testifying and then answering no questions advances your case it does not. I can’t give any material weight to testimony where the witness has refused to cooperate by allowing himself to be cross-examined. So that is counterproductive from your point of view. It doesn’t help you. It hinders you because I can’t give any material weight to what you’ve told me.

The Court of Appeal indicated that in convicting the accused, the trial judge held that “because the appellant had refused to complete the cross-examination, his denial of guilt was entitled to no weight. The trial judge did, however, rely on the appellant’s testimony in cross‑examination that he knew Nathan Hunter in order to confirm Hunter’s evidence that the appellant participated in the bank robbery. This evidence from the appellant’s cross-examination was used by the trial judge to convict the appellant” (at paragraph 13).

The accused appealed form conviction, arguing that “the trial judge erred in using the appellant’s testimony against him, after stating that he would not use it” (at paragraph 14).

The appeal was allowed and a new trial ordered.  The Ontario Court of Appeal noted an accused person “who elects to give evidence is not entitled to discontinue cross-examination and have his statements simply expunged from the record. In most circumstances, a trial judge faced with an accused who refuses to answer questions on cross-examination is justified in refusing to give any weight to exculpatory evidence while simultaneously relying on evidence given prior to the refusal that supports a finding of guilt” (at paragraph 19). However, the Court of Appeal concluded that in this case “the trial judge erred in using the appellant’s evidence against him having led the appellant to believe that none of his testimony would be used in the trial judge’s deliberations. The trial judge’s advice to the appellant – who was unrepresented and facing very serious charges – conceivably influenced his decision not to resume his testimony as well as his closing submissions, and jeopardized the fairness of the trial” (at paragraph 4).

The Court of Appeal held that “it was reasonable for the appellant – a self-represented accused – to have concluded from the trial judge’s statements during the trial that the appellant’s testimony on cross-examination would not be used for any purpose, including the purpose of establishing his guilt. Of course, the trial judge would have been entitled to use the appellant’s evidence exactly as he did given the appellant’s refusal to continue in the cross-examination, had he not made the statements that he did. The problem only arose once the trial judge had told the appellant – both directly and in his exchange with amicus and the trial Crown – that he would not use the appellant’s testimony” (at paragraph 16).