Cross-Examinations

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General Principles

See also: Examinations

The cross-examination is a "cornerstone of the adversarial trial process"[1], it is "a fundamental feature of a fair trial"[2], and is the "ultimate means of demonstrating truth and testing veracity".[3] However, while the right to cross-examination is broad, counsel are generally bound by the rules of relevancy and materiality.[4]

Purpose of Cross-Examination
It is generally understood that the purpose of cross-examination is to elicit evidence regarding:[5]

  1. the credibility of the witness;
  2. the facts to which he has deposed in chief, including the cross-examiner's version of them; and
  3. the facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose.

Cross-examination intends to "explore the evidence of the witness, exposing weaknesses, biases, and inaccuracies, and thereby assist in the truth finding process".[6]

Appellate Review

The admission of inadmissible evidence through improper cross-examination questions is a question of law and reviewable on a standard of correctness.[7]

A court reviewing a cross-examination must be able to distinguish between those questions that are merely improper from those that compromise trial fairness.[8]

  1. ↑ R v Hart, 1999 NSCA 45 (CanLII), per Cromwell JA, at para 8
    R v Pires; Lising 2005 SCC 66 (CanLII), per Charron J at para 3 (it is "of fundamental significance to the criminal trial process")
  2. ↑ R v Esau, 2009 SKCA 31 (CanLII), 324 Sask. R. 95, per Cameron JA, at para 17
  3. ↑ R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J
    R v Shearing, 2002 SCC 58 (CanLII), per Binnie J at para 76 ("...the most effective tool he possessed to get at the truth was a full and pointed cross-examination.")
  4. ↑ R v Mitchell, 2008 ONCA 757 (CanLII), per curiam at paras 17-19
  5. ↑ R v OGK, 1994 CanLII 8742 (BC CA), per Taylor JA, at para 14
  6. ↑ R v Sylvain, 2014 ABCA 153 (CanLII), per curiam (2:1), at para 95
  7. ↑ R v Mian, 2012 ABCA 302 (CanLII), per curiam
  8. ↑ R v AG, 2015 ABCA 159(*no CanLII links) , at para 22

Scope of Cross Examination

The scope of questioning can be broad. It is recognized as "being protected by ss. 7 and 11(d)" of the Charter.[1]

This right is especially important in cases that turn on credibility.[2]

The right however is limited by the requirements of relevancy and materiality,[3] with relevancy being the main criteria.[4]

Disreputable Conduct

Witnesses, except for an accused, may be cross-examined on disreputable conduct so long as it relevant.[5]

It is not permissible for either party to ask any questions about the veracity of another witness. [6]

Form and Extent of Questioning
The cross-examiner is entitled to ask questions without letting the witness know the purpose of the questions, though is subject to the court's discretion and cannot be put in a way that would mislead the witness as to what is asked.[7]

It is permissible to use an encirclement technique wherein questions to exclude all alternative possibilities are asked and then not ask the desired possibility and allow the court to infer based on inference.[8]

The process of cross-examination is afforded "wide discretion" on what can be questioned on.[9]

Good Faith Basis

Suggestions can be put to the witness as long as there is a "good faith" basis for the question.[10] This is often a function of what is known by the lawyer at the time of the examination. So, for example, a defence lawyer examining an eye-witness in a case who was told by the accused that he did the offence cannot suggest to the witness that they are mistaken as to whom they identified. Similarly, in a case where the defence is alibi, the defence counsel cannot still attack the credibility of the witnesses establishing the offence as he does not have a basis to believe they are being untruthful.

Uncorroborated gossip, such as that found online, may not be sufficient to meet the "good faith" requirement before it can be cross-examined on.[11]

Collateral Matters

There is no obligation to cross examine only on topics germane to the allegations. Counsel may cross-examine on collateral topics.[12]

  1. ↑ R v Lyttle, 2004 SCC 5 (CanLII), per Major and Fish JJ (7:0) at para 43
  2. ↑ R v Anandmalik, (1984), 6 O.A.C. 143 (C.A.)(*no CanLII links)
    R v Giffin, [1988] AJ No 312(*no CanLII links)
    R v Wallick, (1990), 69 Man.R. (2d) 310 (Man. C.A.)(*no CanLII links)
  3. ↑ R v Mitchell, 2008 ONCA 757 (CanLII), per curiam at paras 17-19
  4. ↑ Brownell v Brownell, 1909 CanLII 21, (1909) 42 SCR 368, per Anglin J
  5. ↑ R v Cullen, (1989), 52 CCC (3d) 459 (Ont. C.A.), 1989 CanLII 7241 (ON CA), per Galligan JA
    R v Titus, 1983 CanLII 49 (SCC), [1983] 1 SCR 259, per Ritchie J
    R v Hoilett, (1999), 4 C.R. (4th) 372 (Ont. C.A.), 1999 CanLII 3740 (ON CA), per Feldman JA
  6. ↑ R v Mian, 2012 ABCA 302 (CanLII), per curiam
  7. ↑ R v Haussecker, 1998 ABPC 117 (CanLII), per Fradsham J at paras 18-20
  8. ↑ R v Haussecker at 21-22
  9. ↑ R v Lyttle, 2004 SCC 5 (CanLII), per Major and Fish JJ, at paras 41 to 45
    R v Sylvain, 2014 ABCA 153 (CanLII), per curiam (2:1) at para 96
  10. ↑ Lyttle, supra
  11. ↑ Paciocco, "The law of evidence in a technological age" at p. 222
  12. ↑ R v Burgar, 2010 ABCA 318 (CanLII), per curiam

Duty to Cross Examine

Counsel has a duty to cross-examine a witness that he intends to suggest is not being truthful or misleading.[1]

A failure of counsel to cross-examine a witness will permit the trier-of-fact to conclude that the evidence is accurate.[2]

In a jury trial, the right to a fair trial will sometimes require that the accused's evidence be subject to cross-examination on material issues so that the trier-of-fact can properly assess whether to accept or reject the accused's evidence.[3] This does not create a free-standing obligation on the Crown to cross-examine on materials facts in cases generally.[4]

In fact, there is a valid view on cross-examination that where the defence amounts to a "straight denial of the charge or some necessary element of the charge, there is a school of thought that it is counterproductive to cross-examine extensively, thereby allowing the witness just to repeat his denial".[5] This rule of avoidance also applies to defences such as alibi, consent, identity, and flat-out denials.[6] There is no obligation to cross-examine on any of these topics.[7] It may also permit the judge to refuse counsel from calling evidence that contradicts the witness.[8]

Witnesses Called by Court
A witness who is called by the Court will typically be cross-examinable by both Crown and Defence.[9]

  1. ↑ R v OGK, 1994 CanLII 8742 (BC CA), per Taylor JA
  2. ↑ R v Mandzuk (1945), 85 CCC 158 (BCCA), 1945 CanLII 280 (BC CA), per O'Halloran JA
    R v Miller (1959), 125 CCC 8 (BCCA), 1959 CanLII 466 (BC CA), per O'Halloran JA
  3. ↑ R v II, 2013 ABCA 2 (CanLII), per Berger J - in context of a jury trial
  4. ↑ R v Sylvain, 2014 ABCA 153 (CanLII), per curiam (2:1) at para 94
  5. ↑ Sylvain, ibid., at para 96
  6. ↑ Sylvain, ibid., at para 96
  7. ↑ Sylvain, ibid., at para 96
    R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J at pp. 780-2
  8. ↑ R v Speid, (1988), 42 CCC (3d) 12 (Ont. C.A.), 1988 CanLII 7060 (ON CA), per Cory JA
    R v Dyck [1970] 2 CCC 283, 1969 CanLII 988 (BC CA), per Robertson JA
    see also Rule in Browne v Dunn (below)
  9. ↑ e.g. R v Munro, 2013 ONCJ 576 (CanLII), per De Filippis J - Court ordered psych expert for a dangerous offender application

Improper Questioning

The trial judge has a "duty to prevent pointless, irrelevant cross-examination".[1]

Generally, it is improper to do the following during cross examination:

  • unduly repeat cross-examination questions[2]
  • question solely to harass or embarrass the witness[3]
  • intentionally insult or abuse a witness[4]
  • ask a question to elicit evidence that is not admissible [5]
  • ask questions that elicit privileged information[6]
  • aggressive questioning that crosses the line to abusive[7]
  • ask the accused why the complainant would make up the accusation[8]
  • ask a witness whether any another witness is lying[9]
  • ask compound questions[10]

Cross-examination will enter into the realm of abusive when the examination focuses on aspects such as the witnesses general lifestyle, dress and history fulfilling fiscal responsibilities.[11]

  1. ↑ R v Kelly, 2015 ABCA 200 (CanLII), per curiam at para 5
  2. ↑ R v Bourassa (1991), 67 CCC (3d) 143 (QCCA), 1991 CanLII 11734 (QC CA), per Tourigny JA
    R v McLaughlin (1974), 15 CCC (2d) 562, 1974 CanLII 748 (ON CA), per Evans JA
  3. ↑ R v Logiacco (1984), 11 CCC (3d) 374 (ONCA), 1984 CanLII 3459 (ON CA), per Cory JA
    R v Bradbury (1973), 14 CCC (2d) 139 (ONCA), 1973 CanLII 1442 (ON CA), per Kelly JA
    R v Mahonin (1957), 119 CCC 319 (BSCS)(*no CanLII links)
    R v Prince (1945), 85 CCC 97, [1946] 1 DLR 659(*no CanLII links)
  4. ↑ R v Ma, Ho and Lai (1978), 44 CCC (2d) 537, 1978 CanLII 2405 (BC CA), per Bull JA
    McLaughlin, supra
  5. ↑ R v Howard, 1989 CanLII 99 (SCC), [1989] 1 SCR 1337, (1989), 48 CCC (3d) 38 at 46 (SCC), per Lamer J ("It is not open to the examiner or cross-examiner to put as a fact, or even a hypothetical fact, which is not and will not become part of the case as admissible evidence.")
  6. ↑ R v AJR, 1994 CanLII 3447 (ON CA), per Doherty JA
  7. ↑ R v A.J.R. at p.176
    R v Brown & Murphy, (1983), 1 CCC (3d) 107 (Alta.C.A.), 1982 ABCA 292 (CanLII), per McClung JA (2:1)
  8. ↑ R v De Francesia, 1995 CanLII 1609 (ON CA), (1995), 104 CCC (3d) 189, per curiam at p.193-194
  9. ↑ Brown & Murphy, supra
  10. ↑ R v Gallie, 2015 NSCA 50 (CanLII), per Fichaud JA
  11. ↑ e.g. see R v Rose, 2001 CanLII 24079 (ON CA), per Charron JA

Rules Against Crown Cross-Examination

Specifically for the Crown in cross-examining the accused, it is improper to do any of the following:

  • ask the accused why the complainant would make up the accusation[1]
  • ask the accused whether the complainant is lying or committing perjury[2]
  • asking accused if police officer(s) are lying[3]
  • ask to comment on the veracity of any other witness;[4]
  • details of the accused's criminal record[5]
  • reasons for exercising the right to silence[6]
  • question regarding the accused's access to the disclosure and suggest their version is crafted to avoid potential pitfalls[7]
  • to the accused a "barefaced liar";[8]
  • to express personal views and editorial comments into the questions, including their belief that the witness is a "liar";[9]
  • to make baseless and highly prejudicial suggestions to the accused[10]
  • ask the accused to explain the failure to call certain witnesses, and to explain why his own evidence was not corroborated.[11]
  • to mock and unfairly challenge the accused's adherence to his religious beliefs[12]

Questions must always be considered in context, and certain improper questions may be proper in the right context.[13]

An appellate court should only intervene when the questioning is so improper that it "tends bring the administration of justice into disrepute"[14]

Any cross-examination by the Crown that would prejudice the accused's defences or bring the administration of justice into disrepute may render the trial unfair and the verdict reversible.[15]

  1. ↑ R v Dedier, 2012 ONSC 2889 (CanLII), per Trotter J -- this is because asking a witness to comment on the veracity of another witness is unreliable evidence and it may mislead the trier of fact in putting the burden on the accused
    R v LL, [2009] OJ No 2029 (C.A.), 2009 ONCA 413 (CanLII), per Simmons JA, at para 15
    R v Rose, 53 O.R. (3d) 417, 2001 CanLII 24079 (ON CA), per Charron JA, at para 27
    R v Bouhsass, 2002 CanLII 45109 (ON CA), per curiam
  2. ↑ R v Yakeleya, (1985), 20 CCC (3d) 193, 1985 CanLII 3478 (ON CA), per Martin JA - The main reason is that it may tend to shift the burden upon the accused to answer the question
    R v SW, 1994 CanLII 7208 (ON CA), (1994) 90 CCC (3d) 242 (Ont. C.A.), per Finlayson JA
    R v Jones, 1992 CanLII 2971 (QC CA), (1992) 74 CCC (3d) 377 (Qué. C.A.), per Proulx JA
  3. ↑ R v Brown & Murphy, (1983), 1 CCC (3d) 107 (Alta.C.A.), 1982 ABCA 292 (CanLII), per McClung JA aff'd [1985] 2 SCR 273, 1985 CanLII 3 (SCC), per McIntyre J
    Markadonis v The King, 1935 CanLII 44 (SCC), [1935] SCR 657, per Duff CJ
  4. ↑ Markadonis, ibid.
    Rose, supra para 27
    Brown, supra paras 15-23
    R v Henderson, [1999] OJ No 1216 (C.A.), 1999 CanLII 2358 (ON CA), per Labrosse JA para 15
    R v Vandenberghe, [1995] OJ No 243 (C.A.), 1995 CanLII 1439 (ON CA), per curiam
  5. ↑ R v Schell, 2000 CanLII 16917 (ON CA)
  6. ↑ Schell, ibid.
  7. ↑ Schell, ibid. at 56
    R v Bouhsass, 2002 CanLII 45109 (ON CA)
  8. ↑ Bouhsass, ibid.
  9. ↑ Bouhsass, ibid.
    Schell, supra, at para 53
  10. ↑ Bouhsass, ibid.
  11. ↑ Bouhsass, ibid.
  12. ↑ Bouhsass, ibid.
  13. ↑ e.g. R v Steiert, 2018 ABQB 211 (CanLII), per Read J at para 26 to 34 (e.g. difference between calling witness "bare faced liar" vs "dishonest")
  14. ↑ AJR, supra at p.176
    R v Fanjoy, 1985 CanLII 53 (SCC), [1985] 2 SCR 233, per McIntyre J
    R v Ruptash, [1982] 68 CCC (2d) 182, 1982 ABCA 165 (CanLII), per curiam at p.189, 36 A.R. 346 (C.A.)
  15. ↑ R v MAJ, 2016 ONCA 725(*no CanLII links) , at para 26

Cross-Examination by Self-Represented Accused

Accused not to cross-examine witness under 18
486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences
(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.

Other witnesses

(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally cross-examine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider

(a) the age of the witness;
(b) the witness’ mental or physical disabilities, if any;
(c) the nature of the offence;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the nature of any relationship between the witness and the accused;
(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and
(g) any other factor that the judge or justice considers relevant.
Application

(4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

No adverse inference

(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
2005, c. 32, s. 15; 2015, c. 13, s. 16.


– CCC

Under 486.3(2), the Crown can seek to have the court appoint a lawyer to the accused for the purpose of conducting a cross-examination where the judge is "...of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness.” [1]

The initial onus lies on the crown to establish that the presumption in s.486.3 applies. This onus is on the balance of probabilities.[2]If established, it is on the accused to establish that the proper administration of justice requires that the presumption should not be followed.[3]

This section trumps the right to cross examine as the accused sees fit.[4]

Factors to be considered include the circumstances of the case, the nature of the relationship between the accused and the witness and the nature of the alleged criminal acts.[5] As well as the likelihood of the accused being aggressive and whether the questioning by the self-represented accused would be focused, rational, and relevant.[6]

The court has no jurisdictions to set the rate of remuneration for counsel.[7]

  1. ↑ see also: R v Predie, 2009 OJ No 2723, 2009 CanLII 33055 (ON SC), per Boswell J
    R v D.J. 2011 NSPC 3 (CanLII), NSJ No 262, per Derrick J
  2. ↑ R v Tehrankari, 2008 CanLII 74557 (ON SC), [2008] OJ No 565 para 19
  3. ↑ See R v DPG, [2008] OJ No 767 (ONSC)(*no CanLII links)
  4. ↑ R v Jones, [2011] NSJ 262, 2011 NSPC 47 (CanLII), per Derrick J
  5. ↑ R v Gendreau, 2011 ABCA 256 (CanLII), per curiam
  6. ↑ Predie, supra
  7. ↑ R v Dallaire, 2010 ONSC 715 (CanLII), per Kane J - no power under s. 486.3(4) to set remuneration

General Limitations on Cross-Examination

The court has a discretionary power to limit cross-examination where repetitive, irrelevant, and unproductive. [1]

  1. ↑ R v Jardine, 2011 BCSC 248 (CanLII), per MacKenzie J at para 18 to 20

Confrontation Rule (The Browne v Dunn Rule)

The confrontation rule, also known as the rule in Brown v Dunn, states that where a party is advancing a theory that contradicts the testimony of a particular witness being questioned, the counter-version must be put to the witness.[1] More specifically, the witness should have "an opportunity to address or explain the point upon which credibility is attacked." [2] The rule prevents a witness from being "ambushed".[3]

Courts have not stuck strictly to the requirement of presenting the counter version in each and every case involving credibility, stating that it is not a hard and fast rule.[4] The examiner does not need to "slog through a witness's evidence-in-chief putting him on notice of every detail the defence does not accept".[5]

A more flexible approach has been to focus on whether the failure created an unfairness. [6]

The rule intends to create fairness for witness who is being impeached, the counsel who called the witness being impeached, and the trier of fact. [7]

It has been suggested that the rule should only apply to "matters of substance" and not "minor details".[8]

It is only the "nature of the proposed contradictory evidence and its significant aspects" that should be put to the witness.[9]

It is not necessary to confront witnesses with matters beyond their observations or knowledge for which they cannot testify to.[10]

Some courts have simply put the failure to confront the witness as a matter of weight given to the evidence.[11]

Nevertheless, failure to put the counter story to a particular witness can result in an adverse finding on the counter-story.[12]

Where the Defence has not confronted the relevant Crown witnesses with the counter theory of events, the Crown will generally be given the option of recalling their witnesses to address the counter-story.[13]

Where the accused testifies and refutes the Crown's evidence, the rule may not apply such that the Crown need not confront the accused's accused version of events. The accused would have been aware of the Crown evidence that came out in trial and would have been able to address it in their testimony.[14] However, this tactical choice not to confront will prohibit the Crown from making a full comparison between the witnesses versions and in a jury trial would require limiting instructions notifying the jury that the accused did not have "potential benefit" his credibility being tested.[15]

The decision whether a breach is found is at "the discretion of the trial judge after taking into account the circumstances of the case".[16]

To determine a breach of the Brown v Dunn rule, a number of factors can be considered:[17]

  • The seriousness of the breach;
  • The context in which the breach occurred;
  • The stage in the proceedings when an objection to the breach was raised;
  • The response by counsel, if any, to the objection;
  • Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
  • The availability of the witness to be recalled; and
  • In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

There is no obligation under the confrontation rule to require the Crown to cross-examine an accused on a bare denial of the allegations.[18]

Jury Trials

The Crown must be cautious in arguing a breach of the Browne and Dunn rule to a jury in closing as it risk creating the false impression of a reversed burden of proof.[19]

  1. ↑ R v Sawatzky, 2017 ABCA 179 (CanLII), per curiam, at paras 23 to 26
    R v Dyck, [1970] 2 CCC 283 (BCCA), 1969 CanLII 988 (BC CA), per Robertson JA
    R v Henderson, 1999 CanLII 2358 (ON CA), (1999), 44 O.R. (3d) 628 (C.A.), per Labrosse JA, at p. 636
    Brown v Dunn (1893), 6 R. 67 (H.L.), 1893 CanLII 65 (FOREP)
  2. ↑ R v II, 2013 ABCA 2 (CanLII), per Berger J at para 8 citing McWilliams, Canadian Criminal Evidence, 4th ed. (Aurora: Canada Law Book, 2003) at p. 18-104
  3. ↑ R v Dexter, 2013 ONCA 744 (CanLII), per Weiler JA at para 18
  4. ↑ R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J at 781
  5. ↑ Dexter, supra at para 18
  6. ↑ R v Johnson, 2010 ONCA 646 (CanLII), [2010] OJ No. 4153, per Rouleau JA at para 79: ("The rule is one of fairness, and is not absolute. ... Counsel should not necessarily be obliged to plod through a witness' evidence in-chief, putting him or her on notice of every detail that they do not accept. ... A pragmatic approach to the rule is most appropriate.")
    see also R v Henderson, 1999 CanLII 2358 (ON CA), (1999), 44 O.R. (3d) 628 (C.A.), per Labrosse JA, at pp. 636-37
    R v Giroux 2006 CanLII 10736 (ON CA), (2006), 207 CCC (3d) 512 (Ont. C.A.), per Blair JA, at para 42
    R v Lyttle, 2004 SCC 5 (CanLII), per Major and Fish JJA, at para 65
    Palmer, supra at p. 781 (cited to SCR)
  7. ↑ R v Quansah, 2015 ONCA 237 (CanLII), per Watt JA, at para 77
  8. ↑ Giroux, supra, at para 46 R v Werkman, 2007 ABCA 130 (CanLII), per curiam, at para 7
    R v McNeill (2000), 2000 CanLII 4897 (ON CA), 144 CCC (3d) 551 (Ont. C.A.), per Moldaver JA, at para 45
  9. ↑ Quansah, supra, at para 81
    Dexter, supra, at para 18
    R v Paris, (2000), 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 (Ont. C.A.), per Doherty JA, leave to appeal refused, at para 22
  10. ↑ Quansah, supra, at para 83
  11. ↑ R v MacKinnon, 1992 CanLII 488 (BCCA), per Hollinrake JA
    R v OGK, 1994 CanLII 8742 (BC CA), per Taylor JA
  12. ↑ R v Mete, (1973), 3 W.W.R. 709 (BCCA)(*no CanLII links)
    R v Khuc, 2000 BCCA 20 (CanLII), per McEachern JA
    R v McNeill, 2000 CanLII 4897 (ON CA), (2000), 144 CCC (3d) 551 (ONCA), per Moldaver JA
    R v Carter, 2005 BCCA 381 (CanLII), per Thackray JA, at paras 54 to 60
    R v Ali, 2009 BCCA 464 (CanLII), per Kirkpatrick JA
  13. ↑ e.g. see comments in R v Sparvier, 2012 SKPC 67 (CanLII), per Hinds J, at para 31
  14. ↑ R v II, 2013 ABCA 2 (CanLII), per Berger JA - Crown only cross-examined on collateral matters and not the substance of the incident
  15. ↑ II, ibid. at para 20, 23
  16. ↑ Dexter, supra, at para 20
    Paris, supra at paras 21-22
    R v Giroux (2006), 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512 (Ont. C.A.), per Blair JA, leave to appeal refused, at para 42
    Quansah, supra, at para 80
  17. ↑ Dexter, supra, at para 20
    Quansah, supra at para 84, 117: - considers (1) nature of the subject, (2) overall tenor of the cross-examination, (3) overall conduct of the defence
    Paris, supra, at para 23
  18. ↑ R v Sylvain, 2014 ABCA 153 (CanLII), per curiam(2:1), at para 96
    R v II, 2013 ABCA 2 (CanLII), per Berger J at para 10
  19. ↑ R v Brown, 2018 ONCA 1064(link pending), per curiam, at paras 15 to 18

Remedy

The timeliness of the objection is a factor to be considered to determine a proper remedy.[1]

A reviewing court must accord "substantial deference" to the trial judge on their use of discretion in deciding on a remedy.[2]

One available remedy is the possibility of recalling the witness.[3]

  1. ↑ R v Quansah, 2015 ONCA 237 (CanLII), per Watt JA, at paras 123 to 124
  2. ↑ Quansah, ibid., at para 118
  3. ↑ Quansah, ibid., at para 120

Cross-examining an Accused on a Prior Statement

The crown may withhold a statement of the accused until the defence's case at which time it can only be used where the statement is voluntary and only for the purpose of attacking credibility.[1] If the Crown is to hold back the statement for cross-examination it is necessary for voluntariness to be proven as part of the Crown's evidence, if there is no consent, or else the crown will be foreclosed from using the statement as it would require them to split their case.

The defence may introduce parts of the statement on rebuttal not used by the crown.[2]

  1. ↑ R v Hebert, 1954 CanLII 48 (SCC), [1955] SCR 120
  2. ↑ R v Drake, (1970) 1 CCC (2d) 396 (SKQB), 1970 CanLII 577 (SK QB), per MacPherson JA

Cross-examination by Defence Counsel

Defence counsel cannot cross-examine a witness to elicit statements made by the accused. Only the Crown is permitted to do so.[1]

  1. ↑ R v Simpson, [1988] 1 SCR 3, 1988 CanLII 89 (SCC), ("a general rule, the statements of an accused person made outside court‑‑subject to a finding of voluntariness where the statement is made to one in authority‑‑are receivable in evidence against him but not for him. ..an accused person should not be free to make an unsworn statement ...into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected ... to cross‑examination.") R v Rojas, 2008 SCC 56 (CanLII), per Charron J at para 13 ("Generally, statements of accused made outside of Court are receivable in evidence against him, but not for him.")

Cross-Examination of the Accused

Except where the accused places his character at issue, the Crown cannot cross-examine the witness on the accused of the prior criminal record. The crown can ask the accused of the date and place of conviction; the offence convicted; the sentence imposed. [1]

The Crown may not cross-examine the accused on lies told by the accused to the police at unrelated instances.[2]

The Crown is prohibited from attacking the accused's credibility on the basis that the accused claimed they wanted to be "helpful" at the time of arrest but failed to notify the investigator of certain facts. Such questions violate their right to silence.[3] Any suggestion that the accused should not be trusted because he did not reveal anything prior to trial is impermissible.[4]

Honesty of Other Witnesses
While it is not permissible to ask an accused whether or why another witness is lying, it is permissible to put another set of facts from another witness and ask whether they are true or not.[5]

See details at Credibility Based on Prior Criminal Record

Why Evidence Not Called

It is improper to ask the accused to explain why certain evidence was not presented in the course of the defence's case as it implies a non-existent duty to adduce defence evidence and potentially implicate privileged defence strategy.[6]

Correlation Between Arrest and End of Spree

It is improper to cross-examine an accused on any correlation between a break in a pattern of similar offences and the arrest of the accused.[7]

  1. ↑ semble R v Burgar, 2010 ABCA 318 (CanLII), per curiam
  2. ↑ R v Lee, 2005 CanLII 46628 (ON CA), per curiam
  3. ↑ R v JS, 2018 ONCA 39 (CanLII), per Roberts JA, at paras 50 to 66
  4. ↑ JS, ibid., at para 56
  5. ↑ R v White, 1999 CanLII 3695 (ON CA), per Doherty JA at para 14
  6. ↑ R v Bouhsass, 2002 CanLII 45109 (ON CA), per curiam, at para 12
    R v Usereau, 2010 QCCA 894 (CanLII), per Hilton JA
  7. ↑ R v Musitano, 1985 CanLII 1983 (ON CA), per curiam

Using Documents to Cross-Examine

A document cannot be made admissible simply by putting the document to the witness.[1] A document referred to by the opposing party does not make it admissible either.[2]

A document may be used for cross-examination without showing the witness.[3] Any document may be put to a witness without any proof thereof.[4]

The Crown may use computer logs to cross-examine the accused on credibility even where it relates to conduct that is not the subject-matter of the offence.[5]

Crown Disclosure

It is generally inappropriate to attempt to impeach the accused's credibility on the basis of their access to the disclosure and the likelihood of them crafting their evidence to suit it.[6] However, this will be determined on a case-by-case basis.[7]

It is further impermissible to cross-examine the accused on their possession and review of the disclosure materials as it may undermine their right to receive them.[8]However, in some cases it is permissible such as to undermine a defence of alibi by arguing tailored evidence.[9]

There is a limited ability to cross-examine an accused person using their knowledge and access to disclosure.[10]

If the accused makes reference on direct to disclosure confirming his version of events, he may be cross-examined on his access to disclosure prior to trial.[11]

Criminal Record

Administrative pardons can be used for the purposes of cross-examination in trial.[12]

See also: Documentary Evidence

  1. ↑ R v Paterson, 1998 CanLII 14969 (BC CA), per curiam at para 113
    McWilliams, Canadian Criminal Evidence (3d ed.) at 6-9
  2. ↑ Paterson at para 113
    R v Deacon, [1947] SCR 531, 1947 CanLII 38 (SCC), per Kerwin J
    R v Taylor (1970), 1 CCC (2d) 321, 1970 CanLII 1053 (MB CA), per Dickson JA
    (Man. C.A.) at p. 331
  3. ↑ Paterson, supra at para 113
  4. ↑ Paterson, supra at para 113
  5. ↑ R v Carlos, 2016 ONCA 920 (CanLII), per curiam, at paras 2 to 3
  6. ↑ See "Improper questioning" above
    R v John, 2016 ONCA 615 (CanLII), per Sharpe JA, at para 58 to 60
    R v JS, 2018 ONCA 39(*no CanLII links) , at para 60
    also R v Bouhsass, 2002 CanLII 45109 (ON CA), per curiam
  7. ↑ R v Le (T.D.), 2011 MBCA 83 (CanLII), per Scott CJ, at para 260
  8. ↑ White, supra
  9. ↑ R v FEE, 2011 ONCA 783 (CanLII), per Watt JA, at para 71
    see also R v Cavan, 1999 CanLII 9309 (ON CA), per curiam
  10. ↑ e.g. R v SDB, 2012 SKCA 119 (CanLII), per curiam
  11. ↑ R v Thain, 2009 ONCA 223 (CanLII), 243 CCC (3d) 230, per Sharpe JA, at paras 18 - 29
  12. ↑ R v Gyles, 2003 CanLII 49339 (ON SC), [2003] OJ No 1924, per Wein J at paras 16-21

Cross Examination of Non-Accused Persons

A witness who is not the accused may be cross-examined on outstanding charges, including the underlying conduct, regardless of whether it occurred before or after the incident at issue. It may be relevant to credibility and other issues such as self-defence.[1]

A non-accused witness may be cross-examined on conduct underlying a conviction. The only limitation is relevancy and propriety.[2]

The Crown may cross a witness on impartiality and whether they are attempting to assist their friend, the accused. [3]

A witness may be asked about whether he had any conversations with other witnesses during a break in the trial.[4]

A witness may be questioned generally about the "improper conduct by the witness" only so long as it has a bearing on the witnesses credibility with respect to his evidence.[5]

  1. ↑ R v Chartrand, 2002 CanLII 6331 (ON CA), per Cronk JA
  2. ↑ R v Miller, 1998 CanLII 5115 (ON CA), (1998) 131 CCC (3d) 141 (Ont. CA), per Charron JA, at paras 23 to 41
  3. ↑ R v Wiebe, 2006 CanLII 3955 (ON CA), per curiam at para 21
  4. ↑ R v Peazer, 2005 CanLII 30057 (ON CA), per Rosenberg JA at para 22, 23
  5. ↑ R v Upton, 2008 NSSC 338 (CanLII), per Beveridge J, at para 17

Sexual Assault Cases

It is recognized that cross-examination techniques of sexual assault complainants can tend to "put the complainant on trial rather than the accused". These approaches are "abusive and distort rather than enhance the search for truth." For that reason limits must be imposed on cross-examination.[1]

One limitation imposed on cross-examination is upon the privacy interests of the complainant.[2]

Cross-examinations cannot be for the purpose is directed to the "rape myths".[3]

Any limitation on cross-examination cannot "interfere with the right of the accused to a fair trial."[4]

  1. ↑ R v Shearing, 2002 SCC 58 (CanLII), per Binnie J, at para 76
    R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J, at p. 669 and 671 ("complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. ")
  2. ↑ Shearing, ibid., at para 76
  3. ↑ Osolin, supra at p. 671
  4. ↑ Osolin, supra at p. 669

Cross-Examination by Calling Party

During a Preliminary Inquiry

An accused at a preliminary inquiry has "a right to full, detailed and careful cross-examination". Failure to be permitted to do so "is a failure to accord the accused an important right granted him by the provisions of the Criminal Code".[1]

See Also: Preliminary Inquiry

  1. ↑ Patterson v The Queen (1970), 2 CCC (2d) 227, 1970 CanLII 180 (SCC), [1970] SCR 409, per Judson J

See Also

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