The fact that a defendant is present throughout his trial before testifying cannot be used to reduce the credibility of his testimony. In July, Justice Laskin reaffirmed this simple principle in the Ontario Court of Appeal’s decision in R. v. Jorgge.
Jimmy Jorgge was convicted of Sexual Assault and Administering a Stupefying Substance after a judge-alone trial in Superior Court. Mr. Jorgge and the complainant got together for drinks after meeting on a dating website. They ended up having sex at Jorgge’s condominium. The complainant testified that she did not consent to the sex. She said that at the condo she felt tired, nauseous and could not move. It turns out that she had a common over-the-counter medication in her system that is sometimes used as a “date rape” drug.
Mr. Jorgge testified that he did not drug the complainant. He previously admitted to the police that the complainant may have been asleep when he had sex with her. At trial, he said that admission was not true. He explained that he felt pressured by the police and did not think he could end the interview without admitting to something.
The trial judge rejected Mr. Jorgge’s explanation in part because he was present during a voir dire while his lawyer argued that the police statement was inadmissible. She described his evidence as “carefully tailored” to fit the legal arguments he heard his lawyer make earlier in the trial. She characterized his explanation as an attempt to distance himself from those admissions now that he had “a better understanding of the issues”.
The trial judge was wrong to approach her assessment of the defendant’s credibility on this basis, despite the “natural temptation” to do so. The Court of Appeal held that a defendant’s right to be present during his trial cannot be used against him to discredit his evidence. In reaching this decision, Justice Laskin drew upon the long-settled principle that it is wrong and unfair to use a defendant’s right to disclosure to discount his evidence.
This is an important reminder of the broader point that it reinforces. Constitutional protections exist for the benefit of the innocent and not-so-innocent equally. To convert a basic right, whether the right to remain silent, the right to counsel, the right to disclosure or the right to be present during your trial, into a sword to wield against a defendant diminishes the protections that we all enjoy.
This case comment was first published on the Ontario Bar Association’s website on October 3, 2013.