Cross-Examining a Judge: Lessons from R. v. Nnane (2025)

When it comes to criminal appeals in Ontario, the process of introducing fresh evidence can be complex and highly technical. The recent Court of Appeal decision in R. v. Nnane, 2025 ONCA 728, sheds important light on when cross-examination of witnesses — including sitting judges — may be permitted in the appellate context.

This case has attracted attention among criminal lawyers and appellate advocates alike for its examination of the limits of judicial immunity and the standards governing fresh evidence motions. This case is especially important for anyone seeking to introduce fresh evidence or alleging ineffective assistance of counsel on appeal.

Background: The Fresh Evidence Motion

Mr. Nnane’s appeal followed a 2024 Ontario Court of Appeal decision (R. v. Nnane, 2024 ONCA 841), where his attempt to introduce new evidence was dismissed. He appealed to the Supreme Court of Canada, which on April 30, 2025, remanded the issue of new evidence back to the Ontario Court of Appeal.

The evidence in question was an affidavit from an eyewitness who had not testified at trial. Supporting that was an affidavit from Mr. Nnane’s former lawyer, Dirk Derstine, who has since been appointed to the Superior Court of Justice. The Crown sought to cross-examine both affiants, including Justice Derstine.

The Contested Issue: Cross-Examination of a Sitting Judge

The fresh evidence application included an affidavit from Justice Dirk Derstine, formerly Mr. Nnane’s trial and appellate counsel, who has since been appointed to the Superior Court of Justice. The Crown sought to cross-examine both the eyewitness and Justice Derstine on their affidavits.

The appellant and Justice Derstine opposed this request, arguing that cross-examining a sitting judge could undermine public confidence in the administration of justice. They proposed that written interrogatories (written questions and answers) be used instead, as a less intrusive alternative.

The Court of Appeal’s Decision

The Ontario Court of Appeal rejected those arguments and granted the Crown’s motion to cross-examine Justice Derstine.

The Court emphasized several key points:

1. Cross-examination is the norm in fresh evidence motions under section 683(1)(b)(ii) of the Criminal Code.

2. The fact that Justice Derstine is now a judge does not shield him from being examined about actions taken before his judicial appointment.

3. This case does not involve judicial immunity, since the Crown seeks to question him only about his conduct as a lawyer, not as a judge.

4. The Court noted that written interrogatories are not an adequate substitute for oral cross-examination, which allows for spontaneous follow-up on contentious answers.

5. Concerns about maintaining the dignity of judicial office were acknowledged, but the Court expressed confidence that the Crown would conduct the cross-examination “fairly and respectfully.”

In the Court’s words, shielding judges from examination about their pre-appointment actions “would not serve rule of law values.” The Court also clarified that in previous cases, such as R. v. Wolf (2007 ONCA 327), credibility was not at issue, and that decision did not establish immunity for judges regarding their prior conduct as counsel.

Why This Decision Matters

This decision reinforces that the rule of law applies equally to all participants, and that the fresh evidence motions in criminal appeals remain governed by principles of fairness, transparency, and accountability — even when sensitive issues arise involving members of the judiciary.

For defendants and criminal appeal lawyers, R. v. Nnane reinforces that:

·         Fresh evidence must be supported by credible, testable proof.

·         Counsel affidavits can (and often will) lead to cross-examination.

·         The courts aim to balance judicial dignity with fair trial rights.

It’s a reminder that appeals involving ineffective assistance of counsel must be carefully prepared, and that affiants — regardless of status — are open to examination if their credibility or reliability is relevant.

Key Takeaways for Criminal Appeal Lawyers

• The right to cross-examine on affidavit evidence is a fundamental component of the appellate process.

• Judicial immunity does not extend to actions taken before appointment to the bench.

• Courts will balance the integrity of the judicial office with the right to a fair and transparent process.

• Written interrogatories may not be an effective alternative when credibility or reliability are in issue.

Conclusion

The Ontario Court of Appeal’s ruling in R. v. Nnane, 2025 ONCA 728, offers crucial guidance on the treatment of fresh evidence and the boundaries of cross-examination in criminal appeals. For anyone navigating an appeal based on new evidence or claims of ineffective assistance, this case is a reminder that the appellate courts are willing to look behind the record — but only under carefully managed, legally sound procedures.

If you or someone you know is considering a criminal appeal or if new evidence has come to light after conviction, it’s vital to seek advice from a criminal appeal lawyer who understands how to properly bring and argue such motions before the Ontario Court of Appeal.

Questions about this topic? See our page on criminal charges in Mississauga, or call (289) 652-0529.