Re-examine on "new facts"
Generally, once cross-examination is complete a witness cannot introduce new facts not covered in cross-examination except where permitted as "re-examination".
A party calling a witness is entitled to re-examine the witness after cross-examination. The scope of the re-examination is limited to matters that arose in cross-examination. Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination.
The "purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination."
Counsel is entitled to ask questions that "relate to matters arising out of the cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination."
The right to re-examine is not absolute but should be permitted where it is not repetitious and "genuinely arises from cross-examination".
Introducing "new facts" not arising from Cross
New facts may be raised in re-examination at the discretion of the judge. If the judge permits it, the opposing party must be permitted to cross-examine.
Form of Questions
The rule against leading questions still applies in re-examination.
Re-examination may not be used to improperly bolster credibility of the witness after impeaching credibility in cross-examination.
Use of Prior Statements in Re-Direct
The re-examination cannot be used to introduce a second inconsistent statement after a first inconsistent statement was introduced in cross.
A Crown may play an entire statement back to the witness in re-examination and put in as an exhibit.
Where recent fabrication arises in cross, the re-direct may be used to introduce a prior consistent statement of the witness.
Re-Direct vs Reply or Rebuttal
Reply or Rebuttal evidence is only permitted where the evidence was not reasonably anticipated. Re-direct has not requirement that the area of evidence to have been unanticipated.
- R v Lavoie, 2000 ABCA 318 (CanLII) at para 46 citing The Law of Evidence in Canada ("The witness is not ordinarily allowed to supplement the examination-in-chief by introducing new facts which were not covered in cross-examination.")
- R v Moore (1984), 15 CCC (3d) 543 (Ont. C.A.)(*no CanLII links)
- R v Moore, at 66 cited in R v Evans  2 SCR 639 at 36
R v Evans ("The questions that can be asked of right on re-examination should focus on elements from the against-examination relating to new facts or issues raised during the examination and require explanations for asked questions and answers in cons-examination") citing Ewaschuk in Criminal Pleadings & Practice in Canada , 2 e ed (p 16.29 by 16.. 2510)
R v Candir, 2009 ONCA 915 (CanLII)
R v Linklater, 2009 ONCA 172 (CanLII), at para 13
Barboza-Pena c. R., 2008 QCCA 1133 (CanLII), at para 36
R v Lavoie, at para 46 citing The Law of Evidence in Canada, at p. 879
- E.G. Ewaschuk in Criminal Pleadings and Practice Canada, 2d ed., in these words at p. 16.29, para 16:2510
- R v Schell, 2013 ABCA 4 (CanLII) ("re-examination is permitted if it is not merely repetitious and if it genuinely arises from the cross-examination")
- Moore, supra at 66
Moore, supra at 66
See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567
- Moore, supra
- R v Horsefall, 1991 CanLII 5768 (BC CA)
R v Patterson, CanLII 30300 (ON CA), at para 49
R v Lavoie, 2000 ABCA 318 (CanLII)
see also Prior Consistent Statements
see R v K.T. 2013 ONCA 257 (CanLII)
see also Reply or Rebuttal evidence