Background
Mohammad Khodayar was alleged to have driven Jeffery Dondji to and from the scene of a homicide — the shooting death of Mohammed Hassan — and was subpoenaed to testify at Dondji’s preliminary inquiry. Khodayar appeared, was affirmed, and answered preliminary questions about his personal background, but then repeatedly refused to answer any substantive questions relating to the offence. He was given multiple opportunities over several days to consult counsel and reconsider; he continued to refuse. He was subsequently charged under s. 139(2) of the Criminal Code with intentionally attempting to obstruct, pervert, or defeat the course of justice.
At his trial on the obstruction charge, a central evidentiary dispute arose over whether transcripts of Khodayar’s testimony (and refusals) at the preliminary inquiry were admissible. The Crown relied on R. v. Schertzer, 2015 ONCA 259, which held that s. 13 of the Canadian Charter of Rights and Freedoms does not protect testimony where the testimony itself constitutes the actus reus of a new offence. Khodayar sought exclusion of the transcripts under s. 13, relying on the Ontario Superior Court decision in R. v. Seecharran, 2016 ONSC 7642, which had found similar transcripts inadmissible in analogous circumstances.
The application judge followed Schertzer — a binding Court of Appeal precedent — dismissed the Charter application, admitted the transcripts, and convicted Khodayar of attempting to obstruct justice. He appealed, arguing the trial judge should have followed Seecharran and that admission of the transcripts violated s. 13.
The Court’s Holding
The Court of Appeal (Gillese J.A., Sossin and Monahan JJ.A. concurring) dismissed the appeal. On the stare decisis ground, the court held that vertical stare decisis — not horizontal stare decisis — governed the application judge. Because Schertzer is a decision of the Court of Appeal for Ontario, it was binding on the Ontario Court of Justice trial judge. Seecharran, a Superior Court decision of coordinate jurisdiction to the trial court at best, could not displace a binding appellate precedent. It would have been reversible legal error for the application judge to have followed Seecharran over Schertzer.
On the s. 13 Charter ground, the court identified three independent errors in Khodayar’s argument. First, the transcripts did not contain “incriminating evidence” within the meaning of s. 13; rather, Khodayar’s refusals to answer were themselves the actus reus of the obstruction offence — a new offence committed on the witness stand, not prior conduct discussed under compulsion. Second, because Khodayar provided no substantive evidence, the quid pro quo rationale underlying s. 13 was never engaged: there was no “quid” (compelled incriminating testimony), so no “quo” (state protection) was owed. Third, the court rejected Khodayar’s attempt to narrow Schertzer to cases involving false testimony; the principle in Schertzer applies wherever the testimony in question constitutes the actus reus of the new offence, regardless of its truth or falsity.
Key Takeaways
- Section 13 of the Charter protects compelled testimony from being used to incriminate a witness in subsequent proceedings, but it does not protect conduct on the witness stand that itself constitutes the actus reus of a new offence such as obstruction of justice.
- The quid pro quo rationale for s. 13 requires that a witness have actually provided incriminating testimony; a witness who simply refuses to testify provides no “quid” and is therefore not entitled to the “quo” of s. 13 protection.
- Vertical stare decisis obligates trial courts to follow binding appellate precedent even when a coordinate-court decision points in a different direction — applying horizontal stare decisis to depart from a higher court’s ruling would itself be reversible error.
- R. v. Schertzer (2015 ONCA 259) is confirmed as the governing authority in Ontario: its principle — that s. 13 does not apply where testimony is the actus reus of the charged offence — is not confined to cases of false testimony.
Why It Matters
This decision clarifies an important boundary of the s. 13 self-incrimination protection in Canadian criminal law. Witnesses, their counsel, and prosecutors now have clear appellate guidance that a deliberate refusal to answer questions at a preliminary inquiry — when charged as obstruction of justice — attracts no Charter immunity under s. 13. The transcript of the refusal is admissible as proof of the actus reus, and the Crown need not satisfy any s. 13 exception to use it.
The decision also reinforces the strict hierarchy of stare decisis in Ontario courts. A trial judge faced with conflicting decisions from the Court of Appeal and the Superior Court must follow the appellate decision; the horizontal stare decisis principles articulated in R. v. Sullivan (2022 SCC 19) operate only between courts of truly coordinate jurisdiction and cannot be invoked to elevate a Superior Court ruling above binding Court of Appeal authority.