Sitting judge ordered to attend for cross-examination

R v Nnane, 2025 ONCA 728: Sitting Superior Court Judge Dirk Derstine ordered to attend for cross-examination on an affidavit he swore before his appointment. The appeal Crowns wished to mount a challenge to Justice Derstine's credibility -- in other words, wished to allege that he was being dishonest in his affidavit.

Through counsel, Justice Derstine argued that allowing a sitting judge to be cross-examined on their credibility would undermine public confidence in the administration of justice. The Court was not persuaded by this submission. The Crown did not seek to cross-examine on any aspects of Justice Derstine's judicial role. And if appeal counsel wished to rely on the affidavit, it followed that the respondent Crown should be able to test it. While rule of law values were very much engaged, "those values are not served by shielding members of the judiciary from cross-examination concerning actions taken prior to their appointment as judges": para 14.

My only additional thought is that what's good for the goose, is good for the gander. Where Crown counsel has relevant evidence to give on appeal, and but is subsequently appointed to the bench, they too should be required to submit for examination.