Contre-interrogatoires

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Principes généraux

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

A witness may be cross-examined on any matter that may "impair his credibility."

Purpose of Cross-Examination

It is generally understood that the purpose of cross-examination is to elicit evidence regarding:

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."

Appellate Review

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

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

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.

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

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

Disreputable Conduct

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

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

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.

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.

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

Good Faith Basis

Suggestions can be put to the witness as long as there is a "good faith" basis for the question. 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.

The permissibility of the question is a "function" of:

• "the information available to the cross-examiner";
• their "believe in its likely accuracy"; and
• the "purpose for which it is used".

Questions based on information known to counsel that may be inadmissible, incomplete or uncertain may be put to the witness. The examiner however cannot put questions that they know to be false or are reckless as to the falsity of the information.

Questions are permitted that are in persuit of a hypothesis supported by reasonable inference, experience and intuition. Questions "caculated to mislead is ... improper and prohibited."

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

Collateral Matters

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

Duty to Cross Examine

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

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

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. This does not create a free-standing obligation on the Crown to cross-examine on materials facts in cases generally.

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." This rule of avoidance also applies to defences such as alibi, consent, identity, and flat-out denials. There is no obligation to cross-examine on any of these topics. It may also permit the judge to refuse counsel from calling evidence that contradicts the witness.

Witnesses Called by Court

A witness who is called by the Court will typically be cross-examinable by both Crown and Defence.

Improper Questioning

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

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

• unduly repeat cross-examination questions
• question solely to harass or embarrass the witness
• intentionally insult or abuse a witness
• ask a question to elicit evidence that is not admissible
• ask questions that elicit privileged information
• aggressive questioning that crosses the line to abusive
• ask the accused why the complainant would make up the accusation
• ask a witness whether any another witness is lying
• ask compound questions
• any question where the "prejudicial effect outweighs their probative value."
• any question the examiner knows that the witness cannot answer.
• a question that has no purpose other than to elicit hearsay.

Abusive Questioning

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.

There should be no attempts to take "random shots at a reputation imprudently exposes" or asking "groundless questions to waft an unwarranted innuendo" to the trier-of-fact.

The courts should not let the complainant become "a victim of an insensitive judicial system."

Cross-Examination by Self-Represented Accused

A self-presented accused is presumed to be entitled to cross-examine any witness called by the Crown. Section 486.3(1) entitles the Crown or the witness to apply for an order prohibiting the accused from "personally" cross-examining that witness. The section allows for a prohibition in relation to the following situations:

1. any charge where the witness is under the age of 18 years (mandatory) [s. 486.3(1)]
2. any charge of 264 [criminal harassment], 271 [sexual assault], 272 [sexual assault with a weapon/causing bodily harm] and 273 [aggravated sexual assault] (mandatory) [s. 486.3(2)]
3. any charge where it is necessary to "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" (discretionary) [s. 486.3(3)]

Section 486.3 reads:

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 [harcèlement criminel], 271 [agression sexuelle], 272 [agression sexuelle militaire ou causant des lésions corporelles] and 273 [agression sexuelle grave], 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) [l'accusé ne doit pas contre-interroger le témoin de moins de 18 ans] or (2) [l'accusé ne doit pas contre-interroger le plaignant — certaines infractions], 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) [accusé de ne pas contre-interroger le plaignant — autre circonstance], 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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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.”

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. If established, it is on the accused to establish that the proper administration of justice requires that the presumption should not be followed.

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

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. 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.

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

General Limitations on Cross-Examination

A Court is not permitted to completely prohibit the cross of a witness who testifies. Nor may a court cut-off a direct examination and end any further questioning by either party.

Discretion to Limit Cross

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

Time limitations

While the court may order the end to a cross-examination that has exhausted relevance, the court should not "set" a fixed amount of time for cross-examination ahead of time.

However, the use of some form of limitations on time to cross a witness has been recommended as a reasonable solution to excessively long trials.

Confrontation Rule (The Browne v Dunn Rule)

• Confrontation Rule

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. 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.

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.

Cross-examination by Crown Counsel

It is not appropriate for Crown counsel to threaten a witness with prosecution for perjury during the examination.

Cross-Examination of the Accused

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

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.

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

Collateral Instances of Honesty

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

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.

Accused's Criminal Record

Except where the accused places his character at issue, the Crown cannot cross-examine the witness on the accused of the prior criminal record at large. The crown can ask the accused of the date and place of conviction; the offence convicted; the sentence imposed. The accused cannot be asked about the details of the accused's criminal record.

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

Honesty of Other Witnesses

Questions asking the witness to comment on the credibility of other witnesses is improper. That includes:

• asking the accused why the complainant would make up the accusation
• asking the accused whether the complainant is lying or committing perjury
• asking accused if police officer(s) are lying
• asking to comment on the veracity of any other witness;

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.

Right to Silence

The crown cannot ask about the reasons behind the accused exercising the right to silence

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. Any suggestion that the accused should not be trusted because he did not reveal anything prior to trial is impermissible.

Trial Strategy

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.

Access to Disclosure

• question regarding the accused's access to the disclosure and suggest their version is crafted to avoid potential pitfalls

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. However, this will be determined on a case-by-case basis.

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.However, in some cases it is permissible such as to undermine a defence of alibi by arguing tailored evidence.

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

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.

Other Rules Relating to Crown Cross-Examination

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

• to call the accused a "barefaced liar";
• to express personal views and editorial comments into the questions, including their belief that the witness is a "liar";
• to make baseless and highly prejudicial suggestions to the accused
• ask the accused to explain the failure to call certain witnesses, and to explain why his own evidence was not corroborated.
• to mock and unfairly challenge the accused's adherence to his religious beliefs

Using Documents to Cross-Examine

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

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

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.

See also: Documentary Evidence

Cross Examination of Non-Accused Persons

Character and Disposition

Generally a non-accused witness may be cross-examined on character traits and disposition that could go to their reliability and credibility, however, the reliability and credibility must be material to a trial issue.

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.

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

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

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

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.

Child Witnesses

Children perform differently under cross examination than adults. A "skilful cross-examination is almost certain to confuse a child."

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.

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

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

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

Cross-Examination by Calling Party

• See Adverse and Hostile Witnesses

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."

See Also: Preliminary Inquiry

After Re-Direct

The court has discretion to permit additional cross-examination after re-direct where the re-direct raises new matters.

See Also

• Prior Inconsistent Statements
• Analyzing Testimony