R v Pinkus

R. v. Pinkus

[1999] OJ No 4032
Ontario Superior Court of Justice — Justice McKinnon | October 25, 1999

Background

Pinkus was charged with second-degree murder in the shooting death of Danny Jones during a botched robbery at a gas bar in Ottawa-Carleton. The Crown's key witness was Pinkus's former girlfriend, who testified that he had confessed to shooting Jones in the back with a shotgun during the robbery.

Here's the twist: for approximately two years after the homicide, this same witness had repeatedly told police that Pinkus had nothing to do with the robbery and maintained he was innocent. Now she was saying the opposite — that her previous statements were lies and she was finally telling the truth. Crown counsel wanted to lead evidence during examination-in-chief about why she changed her story and her reasons for initially lying.

Issues

1. Can the Crown lead evidence of a witness's prior inconsistent statements during examination-in-chief when the purpose is not to impeach the witness but to explain their change of heart?
2. Does such questioning violate the rule against oath-helping?

The Rule Against Oath-Helping

The Crown argued they should be able to present their witness "warts and all" as part of trial strategy — essentially getting ahead of the obvious credibility problems by addressing them first. They compared it to leading evidence of a witness's criminal record during examination-in-chief, which is permitted under section 12 of the Canada Evidence Act.

Justice McKinnon firmly rejected this approach, relying heavily on the Supreme Court of Canada's decision in R. v. Beland. The rule against oath-helping prohibits "adducing evidence solely for the purpose of bolstering a witness's credibility." The judge found that allowing the Crown to explain the witness's change of heart would inevitably "take some of the sting out of the cross-examination" and weaken the adversarial process.

The court distinguished the cases cited by the Crown (R. v. Lawrence, R. v. Hamilton, and R. v. Eisenhauer), noting that none actually dealt with objections to this type of examination-in-chief, and that the prior inconsistent statements did not constitute "essential narrative" in this murder case.

Key Takeaway

The Crown cannot use examination-in-chief to preemptively explain away a witness's credibility problems — that's what cross-examination is for.

This ruling protects the integrity of cross-examination as the primary tool for testing witness credibility. If you're defending against charges where the Crown has a witness with obvious credibility issues, you have the right to expose those problems through cross-examination without the Crown getting to "inoculate" their witness first.