Adverse and Hostile Witnesses

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95332)

General Principles

When a witness is called, it is presumed that they are to be believed. At common law, a witness cannot be questioned on bad character to attack their credibility by the calling party.[1]

Failure to Apply Under s. 9(2)

Where the Crown is able to impeach their witness in a fashion similar to cross-examination without applying under s. 9(2) may create a reversible error.[2]

  1. ↑ Hanes v Wawanesa Mutual Insurance, 1961 CanLII 28 (ON CA), [1961] OR 495 at 499 (ONCA), per Porter CJ
    G.&J. Sales v Basil MacDonald (1956), 3 DLR (2d) 442 at 450 (NSCA)(*no CanLII links)
    See also CEA s. 9(1)
    R v CEN, 1998 ABCA 290 (CanLII), 129 CCC (3d) 198, per curiam
    R v Situ, 2005 ABCA 275 (CanLII), 200 CCC (3d) 9, per curiam
    R v Paquette, 2008 ABCA 49 (CanLII), 425 AR 4, per curiam
    David M. Paciocco and Lee Stuesser, The Law of Evidence, 5th ed (Toronto: Irwin Law, 2008) at 503-509
  2. ↑ R v Fairbarn, 2020 ONCA 784 (CanLII), per curiam

Common Law Principles

At common law, a witness who is unfavourable and hostile may be cross-examined on a prior statement of any type. [1]

An "unfavourable" witness is one who gives evidence that is contrary to the fact that they were called to prove. The calling party may call evidence to contradict that evidence while still relying on the other evidence that was not contradicted.

A "hostile" witness at common law is one who is "not desirous of telling the truth". Such a witness may be cross-examined to the extent that the judge sees necessary to do justice, which can include a broad area of topics such as all facts in issue, the witnesses reliability and credibility on the circumstances of the case.

A common law declaration of hostility may be available solely on the basis of the witness's manner in giving evidence and demeanour.[2]

The common law principles have largely fallen out of disuse and issues of recantations or unfavourable changing of evidence is dealt with in s. 9(1) and 9(2).

  1. ↑ R v Prefas , (1988), 86 Cr. App. R. 111, (CA) (UK)
  2. ↑ R v McAllister, 2008 NSCA 103 (CanLII), 865 APR 237, per Oland JA

Adverse vs Hostile

An "adverse" witness is "one who is opposed an interest or unfavourable in the sense of opposite in position to the party calling that witness."[1]

A "hostile" witness is "one who demonstrates an antagonistic attitude or hostile mind toward the party calling him or her" or someone "who does not give his or her evidence fairly and with the desire to tell the truth because of a hostile animus towards the prosecution."[2]

  1. ↑ R v Figliola, 2011 ONCA 457 (CanLII), 272 CCC (3d) 518, per curiam, at para 50
  2. ↑ Figliola, ibid., at para 50

Section 9(2)/Milgaard Application to Cross-Examine on a Statement

s.9
[omitted (1)]

Previous statements by witness not proved adverse

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
R.S., 1985, c. C-5, s. 9; 1994, c. 44, s. 85.

– CEA (CanLII), (DOJ)

Note up: 9(2)

This was considered a separate form of impeachment of a witness from 9(1).[1]

Purpose

Section 9(2) was added to permit a broader ability to impeach a witness through cross-examination on written statements without the adverse declaration.[2] It is also an available tool to assist in making a finding of adversity.[3]

  1. ↑ R v Milgaard, 1971 CanLII 792 (SK CA), 2 CCC (2d) 206 (SKCA), per Culliton CJ
    R v Rouse; McInroy, 1978 CanLII 175 (SCC), [1979] 1 SCR 588, per Martland J
  2. ↑ Rouse; McInroy, supra - no adversity finding needed
  3. ↑ R v Dayes, 2013 ONCA 614 (CanLII), 301 CCC (3d) 337, per LaForme JA (3:0), at para 30

Discretionary Application

The decision whether to permit counsel to cross-examine the witness they are calling under s. 9(2) of the Evidence Act is at their discretion.[1] The application should only be granted where it "meets the ends of justice."[2]

This can often be treated as a consideration of probative value vs prejudicial effect analysis.[3] Factors to consider when exercising the discretion include:[4]

  1. The extent and materiality of the conflicts in the statement;
  2. Sound indicators about whether cross-examination is apt to produce a change in testimony, including an adoption of the statement as true;
  3. Whether the statement was secured fairly or by trickery, abuse, inducements, oppression or Charter violations;
  4. Whether the statement contains information prejudicial to the accused that will be disclosed if cross-examination and proof is permitted;
  5. The risk the procedure will create distracting side issues.

The reliability of the prior statement is a factor but not "essential" in the same way as it would be in a hearsay exception application.[5]

Where it is unlikely or implausible that the witness will change their testimony under cross-examination, that may be the basis to reject a request to cross.[6]

Consideration should include whether permitting cross-examination would potentially bring the administration of justice into disrepute.[7]

Burden of Proof

The question of whether the examination meets the ends of justice is on the standard of a balance of probabilities.[8]

The refusal to cross-examine on a prior inconsistent statement should be "relatively rare."[9]

  1. ↑ R v Carpenter (No 2), 1982 CanLII 3308 (ON CA), 1 CCC (3d) 149, per Grange JA, at p. 13 ("I do not, of course, mean that cross-examination should automatically have been permitted. The subsection is clearly permissive and the trial judge might well have refused permission in view of the circumstances of the taking of the statements and his opinion of its reliability. The test as put by Porter C.J.O. in [citation omitted] is whether “the ends of justice would be best attained by admitting it. The section does not contemplate the indiscriminate admission of statements of this kind”.")
    R v Salmon and Foster, 2020 ONSC 786 (CanLII), per Henderson J, at para 15
  2. ↑ R v Boyce, 2014 ONCA 150 (CanLII), 316 OAC 310, per Rosenberg JA, at para 20
    R v Taylor, 2015 ONCA 448 (CanLII), 325 CCC (3d) 413, per Rosenberg JA, at para 47 ("the judge should determine whether to grant leave to cross-examine by asking whether the ends of justice are best attained by permitting it") R v South, 2018 ONSC 604 (CanLII), per Baltman J, at para 98 ("Permitting cross-examination under s. 9(2) is discretionary. The test to be applied in determining whether to grant cross-examination is “clearly permissive”, depending on “whether the ends of justice would be best attained”: [citations omitted]")
  3. ↑ R v Neville, 2013 CanLII 9090 (NL SC), per Thompson J, at para 2("Overall, it is most helpful to treat the s. 9(2) discretion as an exercise in weighing probative value against prejudicial impact. The trial judge should assess the probative value of cross-examination as a means to persuade the witness to change his or her testimony and adopt the earlier version of events in whole or part and/or to impeach the credibility of any testimony that remains inconsistent.")
  4. ↑ South, ibid., at para 99
    Paciocco, “Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases” (2012) 59 C.L.Q.
  5. ↑ South, supra, at para 100 ("The reliability of the prior statement is not an essential component under s. 9(2) in the same way that it is when considering whether the statement is admissible as substantive evidence under the principled exception to the hearsay rule. However, it remains a factor for consideration")
    , supra, at para 51
    R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Epstein JA, at para 38
    Carpenter, supra, at para 13
    R v Ranglin, 2016 ONSC 4304 (CanLII), per Ricchetti J, at paras 39 to 41
    R v Kenny, 2012 ONSC 1374 (CanLII), at para 49
  6. ↑ South, supra, at para 108 ("There is no plausible basis to believe that cross-examination is likely to produce a change in testimony, much less an adoption of the statement as true. This was effectively conceded by Crown counsel during submissions, when he predicted that Pearson would “likely” give the same answer at trial as he had at the preliminary hearing, namely that he did not see the shooter. As the probative value of the questioning will therefore be minimal or non-existent, there is no logical basis to grant leave")
    Neville, supra, at para 2
  7. ↑ infra, at para 42
  8. ↑ R v CLS et al., 2011 MBQB 12 (CanLII), 266 CCC (3d) 360, per Beard J, at para 42
  9. ↑ CLS, ibid., at para 42

Procedure

The "Milgaard procedure" required by the courts for cross-examination under 9(2) is as follows:[1]

  1. counsel should notify the court of the intention to make an application under s.9(2)
  2. where necessary the jury should retire
  3. counsel should notify the court of the particulars of the application and provide the court with the alleged statement;
  4. if the judge believes on reviewing the statement there is no contraction, then the application is over. Otherwise, the judge should call upon counsel to prove the statement.
  5. Counsel should prove the statement. If the witness agrees to making the statement then it will be sufficient, otherwise, additional witnesses can be called to prove it.
  6. if the contradictory statement is proven then opposing counsel can cross-examine on the circumstances under which the statement was made.
  7. the judge should decide whether to permit cross-examination

Where the matter is a judge-alone trial, there is no need to go through the 9(2) application where the intention is to make a KGB application.[2]

The judge may require the applicant to refresh the witnesses memory or review the statement before giving leave to cross examine.[3]

  1. ↑ R v Milgaard, 1971 CanLII 792 (SK CA), 2 CCC (2d) 206 (SKCA), per Culliton CJ, at p. 55
    R v Williams, 1985 CanLII 113 (ON CA), CR (3d) 351, per Martin JA
    R v South, 2018 ONSC 604 (CanLII), per Baltman J, at para 96 ("The procedure to be followed by counsel in seeking such permission from the trial judge is set out in Milgaard, at para. 55.")
  2. ↑ R v Glowatski, 2001 BCCA 678 (CanLII), 160 CCC (3d) 525, per Hall JA (3:0)
    R v Fleet, 2001 NSCA 158 (CanLII), (2001) 48 CR 5th 28 (NSCA), per Bateman JA (3:0)
  3. ↑ R v Stewart, 1976 CanLII 202 (SCC), 31 CCC (2d) 497, per Spence J (dissent)
    R v Le(TD), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Pigeon JA (6:3), at para X

Requirements

Prior Statement

There is no need for the statement to be signed or acknowledged to be considered under s. 9(2).[1]

"Reduced to Writing"

A transcript of a translation that is accurate and complete will be a "statement in rewriting or reduced to writing."[2]

Notes made by a police officer of a conversation does not amount to a written statement or one reduced to writing.[3] That is, unless the witness confirmed the written statement as accurate.[4]

Claimed Lack of Memory

The testimony of a witness claiming that they have no memory of events described in a prior statement can constitute an inconsistency.[5]

Adoption of Prior Statement

Where a witness is cross-examined on a prior statement, and denies having any memory of the answer, then it cannot become evidence and can only be used towards the witnesses credibility.[6]

Where the witness has a no memory of making the prior statement, there may be a ground to permit cross-examination.[7]

Admissibility of Prior Statement

Is it not necessary that the prior statement be found to be admissible as substantive evidence.[8]

  1. ↑ R v Carpenter(No.2), 1982 CanLII 3308 (ON CA), (1982) 1 CCC (3d) 149, per Grange JA (3:0)
  2. ↑ Carpenter (No.2), supra
  3. ↑ R v Handy, 1978 CanLII 2446 (BC CA), (1978) 45 CCC (2d) 232 (BCCA), per Hinkson JA (3:0)
  4. ↑ Handy, ibid.
  5. ↑ R v CLS, 2011 MBQB 12 (CanLII), 266 CCC (3d) 360, per Beard J, at paras 11 to 13
    R v McInroy et al., 1978 CanLII 175 (SCC), [1979] 1 SCR 588, per Martland J, at pp. 604 ("...It was quite open to [the trial judge] to conclude that she was lying about her recollection and to form his own conclusions as to why she was refusing to testify as to her true recollection. Chief Justice Farris says in terms that “the trial judge clearly did not believe her when she said she had a lack of recall”. This being so there was evidence of an inconsistency between what she said at the trial, i.e. that she had no recollection of a conversation, and what was contained in her written statement, i.e. a detailed recollection of it.")
  6. ↑ Rouse; McInroy, supra
  7. ↑ R v Aubin, 1994 CanLII 5884 (QC CA), 94 CCC (3d) 89, per LeBel JA (3:0)
  8. ↑ R v South, 2018 ONSC 604 (CanLII), per Baltman J, at para 95 ("Cross-examination may be appropriate even where the prior statement has been ruled inadmissible as substantive evidence pursuant to K.G.B.:") R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Esptein JA, at paras 33 to 38

Permissible Cross-Examination

Reason to Cross-examine

Generally, cross-examination is an important tool in ascertaining the truth, and it will often be in the interests of justice to examine a witness under s. 9(2)[1]

In many instances it has been agreed that cross-examination can be permitted to establish whether the witness deviated in their evidence to protect the accused and unearth why they changed their statement.[2]

It is also recognized as a means to have the witness adopt an earlier statement.[3]

Scope of Cross Examination

Cross-examination under s. 9(2) is limited to questioning that relates to the prior inconsistent statement and the circumstances surrounding them.[4] It is improper to conduct a broader attack on the witnesses credibility.[5]

It is permissible under s. 9(2) to question as to the motive and reasons behind the change in evidence.[6]

The trial judge has discretion on the manner in which the cross-examination may be undertaken and should be exercised to minimize the prejudice to the accused.[7]

Use of Prior Statement

The prior statement is not rendered admissible for the truth of its contents when the application is granted. The contents of the statement is only available as a factor when considering the weight to be given to the witness's evidence.[8]

  1. ↑ R v Kizuik, 2001 CanLII 26048 (MB PC), per Smith J, at para 67 ("When it is established that a witness made a prior inconsistent statement with the testimony given in court, particularly on matters related to the central issues relevant to the proceeding, it will usually be in the interests of justice to permit cross-examination under Section 9(2). The ultimate objective of the trial process in which the preliminary hearing plays an important role is ascertaining the truth. Cross-examination is a technique that our system of justice accepts as a very effective tool in the pursuit of truth. It is unsettling when a witness tells one account in court and then apparently another outside court. It raises obvious concerns and questions about the veracity of the witness' testimony. These concerns are best addressed by permitting cross-examination.")
  2. ↑ R v Dayes, 2013 ONCA 614 (CanLII), 301 CCC (3d) 337, per LaForme JA (3:0)
    R v Taylor, 2015 ONCA 448 (CanLII), 325 CCC (3d) 413, per Watt JA (3:0)
  3. ↑ R v South, 2018 ONSC 604 (CanLII), per Baltman J
  4. ↑ R v Figliola, 2011 ONCA 457 (CanLII), 272 CCC (3d) 518, per curiam, at paras 49 to 51
    Dayes, supra, at paras 28 to 40
  5. ↑ Figliola, supra
  6. ↑ Dayes, supra, at para 31
  7. ↑ R v Fraser, 1990 CanLII 983 (BC CA), 55 CCC (3d) 551, per Seaton JA (3:0)
  8. ↑ Taylor, supra, at para 50
    South, supra, at para 97 ("Even when cross-examination is permitted, the prior statement is not admissible as proof of the truth of its contents. Rather, it is available as a factor for consideration in assessing the weight to be given to the witness’ trial testimony")

Section 9(1) Adverse Witnesses

If the witness is shown to be adverse, counsel may contradict the witness with a prior statement under s. 9(1) of the CEA as long as the witness confirms whether the prior statement was made:

Adverse witnesses

9 (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
[omitted (2)]
R.S., 1985, c. C-5, s. 9; 1994, c. 44, s. 85.

– CEA (CanLII), (DOJ)

Note up: 9(1)

Section 9(1) does not change the common law right to cross-examine the calling party's own witness.[1]

"Adverse" is taken to mean that the witness "opposed in interests."[2] This is in distinction with the traditional meaning of "adverse" requiring outward hostility, such as a witness who is belligerent argumentative and un-cooperative, rather than simply hostility in mind.[3] Adversity can be found by way of many means including demeanor or a prior contradictory statement.[4] Testifying in an unfavourable way contrary to a prior statement can be enough.[5]

Factors to be considered in finding of adversity include "possible grounds for bias and collusion between the witness and the opposing party to fashion testimony."[6]

An "hostile" witness, by contrast, is a subset of "adverse" witnesses. A hostile witness is one who is "not giving her evidence fairly and with a desire to tell the truth because of a hostile animus towards the [calling party]" [7] This will capture those witnesses who are belligerent or argumentative. A hostile witness will also engage s.9(1).

Hostility can be determined by way of observation of the witnesses' demeanour.[8]

An application under s. 9(1) is to be performed without the presence of the jury as a voir dire.[9]

Section 9(1) further provides that before counsel can attempted to contradict a witness with a previous statement, counsel has the obligation to first mention the circumstances of the statement to the witness, including the particularities of the occasion it was made, and confirm with the witness whether the statement was made by him.

Where the court gives permission to cross examination, the counsel may impeach the witness. Counsel may not use it to bolster favourable evidence from the witness.[10]

Section 9(1) does not permit counsel to cross examine at large. It is only an ability to cross examine on the circumstances of the prior statement.[11] Only a declaration of hostility permits cross examination at large.[12]

Whenever there is an application under s.9, the applicant must inform the judge what the purpose of tending the prior statement.[13]

Section 9(1) has been found to include oral statements as well as written statements. However, the judge may refuse to consider prior oral statements as evidence of adversity where the supporting evidence is too conflicting, unsatisfactory or ambiguous.[14]

  1. ↑ R v Figliola, 2011 ONCA 457 (CanLII), 272 CCC (3d) 518, per curiam, at para 51
  2. ↑ Hanes v Wawanesa Mutual Insurance Co, 1961 CanLII 28 (ON CA), [1961] OR 495 (ONCA), per Porter CJ (2:1)
    See also: R v Gushue (No.4) (1975) 30 CRNS 178 (Ont. Ct. J.)(*no CanLII links)
  3. ↑ eg. R v SWS, 2005 CanLII 43072 (ON SC), 67 WCB (2d) 658, per Glass J at 7
  4. ↑ See Delisle, "Evidence: Principles and Problems" (7th Ed.), at p. 459
    Wawanesa
  5. ↑ eg. SWS, supra, at para 7
  6. ↑ R v Dayes, 2013 ONCA 614 (CanLII), 301 CCC (3d) 337, per LaForme JA (3:0)
  7. ↑ In Reference re R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191, at page 213
    see also R v Figliola, 2011 ONCA 457 (CanLII), 272 CCC (3d) 518, per curiam (3:0)
  8. ↑ Wawanesa, supra
  9. ↑ See Delisle, "Evidence: Principles and Problems" (7th Ed.), at p. 460
    R v Cassibo, 1982 CanLII 1953 (ON CA), 70 CCC (2d) 498 (ONCA), per Martin JA (3:0)
  10. ↑ R v C(JR), 1996 CanLII 5041 (SK CA), 110 CCC (3d) 373, per Sherstobitoff JA (3:0)
  11. ↑ R v Vivar, 2004 CanLII 34315 (ON SC), [2004] OJ No 9, per Dambrot J
    SWS, supra, at para 14
  12. ↑ SWS, supra
    Figliola, supra
  13. ↑ R v U(FJ), 1994 CanLII 1085 (ON CA), 90 CCC (3d) 541, per Osborne JA (2:0) aff'd by SCC in [1995] 3 SCR 764, 1995 CanLII 74 (SCC), per Lamer CJ (7:0)
  14. ↑ Cassibo, supra

See Also

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