Examinations: Difference between revisions
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==General Principles== | ==General Principles== | ||
All examinations of witnesses are expected to be done in open court.<ref> | All examinations of witnesses are expected to be done in open court.<ref> | ||
{{CanLIIRPC|Re Krakat|g134n|1965 CanLII 358 (ON SC)|4 CCC 300}}{{perONSC|Hughes J}} | |||
</ref> | </ref> | ||
; Summary Conviction Trials | ; Summary Conviction Trials | ||
{{ | {{quotation2| | ||
802<br> | 802<br> | ||
{{removed|(1)}} | |||
; Examination of witnesses | ; Examination of witnesses | ||
(2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent. | (2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent. | ||
| Line 15: | Line 18: | ||
<br> | <br> | ||
R.S., c. C-34, s. 737. | R.S., c. C-34, s. 737. | ||
| | |{{CCCSec2|802}} | ||
|{{NoteUp|802|2|3}} | |||
}} | }} | ||
; Objections | ; Objections | ||
Where trial counsel does not object to inadmissible evidence, that failure cannot make inadmissible evidence admissible.<ref> | Where trial counsel does not object to inadmissible evidence, that failure cannot make inadmissible evidence admissible.<ref> | ||
{{CanLIIRP|D(LE)|1ft4x|1989 CanLII 74 (SCC)|[1989] 2 SCR 111}}{{perSCC-H|Sopinka J}} at 126-27 <br> | |||
{{CanLIIRP|DCB|1pflk|1994 CanLII 6412 (MB CA)| Man.R. (2d) 220}}{{perMBCA|Philp JA}}{{atL|1pflk|14}}<br> | |||
</ref> | |||
; Child Witnesses | |||
The court has a responsibility to ensure that a child witness understands the question being asked and that the evidence given was clear and unambiguous.<Ref> | |||
{{CanLIIRP|L(DO)|1frxn|1993 CanLII 46 (SCC)|[1993] 4 SCR 419}}{{perSCC-H|L’Heureux-Dube J}}{{atL|1frxn|84}} (“in ... cases involving fragile witnesses such as children, the trial judge has a responsibility to ensure that the child understands the questions being asked and that the evidence given by the child is clear and unambiguous. ..., the trial judge may be required to clarify and rephrase questions asked by counsel and to ask subsequent questions to the child to clarify the child's responses.” | |||
</ref> | |||
; Appellate Review | |||
The judge's decision on how a witness should be examined is entitled to deference.<ref> | |||
{{CanLIIRP|Stewart|1z6bm|1976 CanLII 202 (SCC)|[1977] 2 SCR 748}}{{perSCC|Pigeon J}} at p. 751 to 752{{fix}}<br> | |||
{{CanLIIRP|Le (TD)|frj5d|2011 MBCA 83 (CanLII)|275 CCC (3d) 427}}{{perMBCA-H|Scott CJ}}{{atL|frj5d|254}}<br> | |||
{{CanLIIRP|Okemow|hzpv6|2019 MBCA 37 (CanLII)|MJ No 92}}{{perMBCA|Cameron JA}}{{AtL|hzpv6|88}}<br> | |||
</ref> | </ref> | ||
Latest revision as of 14:21, 14 July 2024
| This page was last substantively updated or reviewed March 2021. (Rev. # 95276) |
General Principles
All examinations of witnesses are expected to be done in open court.[1]
- Summary Conviction Trials
802
[omitted (1)]
- Examination of witnesses
(2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent.
- On oath
(3) Every witness at a trial in proceedings to which this Part applies shall be examined under oath.
R.S., c. C-34, s. 737.
- Objections
Where trial counsel does not object to inadmissible evidence, that failure cannot make inadmissible evidence admissible.[2]
- Child Witnesses
The court has a responsibility to ensure that a child witness understands the question being asked and that the evidence given was clear and unambiguous.[3]
- Appellate Review
The judge's decision on how a witness should be examined is entitled to deference.[4]
- ↑ Re Krakat, 1965 CanLII 358 (ON SC), 4 CCC 300, per Hughes J
- ↑
R v D(LE), 1989 CanLII 74 (SCC), [1989] 2 SCR 111, per Sopinka J at 126-27
R v DCB, 1994 CanLII 6412 (MB CA), Man.R. (2d) 220, per Philp JA, at para 14
- ↑ R v L(DO), 1993 CanLII 46 (SCC), [1993] 4 SCR 419, per L’Heureux-Dube J, at para 84 (“in ... cases involving fragile witnesses such as children, the trial judge has a responsibility to ensure that the child understands the questions being asked and that the evidence given by the child is clear and unambiguous. ..., the trial judge may be required to clarify and rephrase questions asked by counsel and to ask subsequent questions to the child to clarify the child's responses.”
- ↑
R v Stewart, 1976 CanLII 202 (SCC), [1977] 2 SCR 748, per Pigeon J at p. 751 to 752(complete citation pending)
R v Le (TD), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 254
R v Okemow, 2019 MBCA 37 (CanLII), MJ No 92, per Cameron JA, at para 88