« Contre-interrogatoires » : différence entre les versions

Le contre-interrogatoire est une {{Tr}}« pierre angulaire du processus contradictoire du procès »<ref>{{CanLIIRP|Hart|1x68t|1999 NSCA 45 (CanLII)|135 CCC (3d) 377}}{{perNSCA|Cromwell JA}}{{atL|1x68t|8}} ( {{Tr}}« The right to cross-examine is a cornerstone of the adversarial trial process.  It is an important vehicle for the discovery of truth and is central to our understanding of fair procedure.  However, even the most important rights have limits. As the Charter of Rights and Freedoms makes clear, our constitutionally guaranteed rights are fundamental, but they are not absolute.")<br>

{{CanLIIRP|Pires; Lising|1m01z|2005 CSC 66 (CanLII)|[2005] 3 RCS 343}}{{perSCC|Charron J}}{{atL|1m01z|3}} (it is "of fundamental significance to the criminal trial process")<br></ref>, it is "a fundamental feature of a fair trial"<ref>

{{CanLIIRP|Osolin|1frvx|1993 CanLII 54 (CSC)|[1993] 4 RCS 595}}{{perSCC|Cory J}}{{atps|663-65}} [SCR] ( {{Tr}}« Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial. That right is now protected by ss. 7 and 11(d) of the Charter.")<br>  

{{CanLIIRP|Shearing|51rb|2002 CSC 58 (CanLII)|[2002] 3 RCS 33}}{{perSCC-H|Binnie J}}{{atL|51rb|76}} ("...the most effective tool he possessed to get at the truth was a full and pointed cross-examination.")<br>

{{CanLIIR-N|Wallick| (1990), 69 Man. R. (2d) 310 (CA)}} ( {{Tr}}« Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right.  Any improper interference with the right is an error which will result in the conviction being quashed.") - cited with approval in {{supra1|Osolin}}

{{CanLIIRP|JB|j1dqp|2019 ONCA 591 (CanLII)|378 CCC (3d) 302}}{{perONCA-H|Watt JA}}{{atL|j1dqp|29}} ( {{Tr}}« To begin, like any witness who testifies, an accused may be cross-examined on matters that may impair his credibility:...")<br>

{{CanLIIRP|Davison, DeRosie and MacArthur|g15kj|1974 CanLII 787 (ON CA)|20 CCC (2d) 424}}{{perONCA-H|Martin JA}} at p. 441, leave to appeal refused, [1974] RCS viii<br>

{{CanLIIRP|Osolin|1frvx|1993 CanLII 54 (CSC)|[1993] 4 RCS 595}}{{perSCC|Cory J}}{{atps|663-65}} [SCR] ( {{Tr}}« Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial. That right is now protected by ss. 7 and 11(d) of the Charter.")<br>  

{{supra1|Lyttle}}{{atL|1gd4x|48}} ( {{Tr}}« In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used.")  

{{supra1|Lyttle}}{{atL|1gd4x|48}} ( {{Tr}}« Information falling short of admissible evidence may be put to the witness.  In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false.")

{{supra1|Lyttle}}{{atL|1gd4x|48}}  ( {{Tr}}« The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition.  The purpose of the question must be consistent with the lawyer’s role as an officer of the court:  to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited.")

{{CanLIIRP|Lyttle|1gd4x|2004 CSC 5 (CanLII)|[2004] 1 RCS 193}}{{perSCC-H|Major and Fish JJ}}{{AtL|1gd4x|44}} ( {{Tr}}« Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. ")

{{CanLIIRP|Howard|1ft53|1989 CanLII 99 (CSC)|[1989] 1 RCS 1337, 48 CCC (3d) 38 at 46 (CSC)}}{{perSCC|Lamer J}} ( {{Tr}}« 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.")

{{CanLIIRP|Bradbury|htxrn|1973 CanLII 1442 (ON CA)|14 CCC (2d) 139}}{{perONCA-H|Kelly JA}} (it is not proper for a trial judge "in advance, to place any restriction on the length of time to be consumed by cross-examination.")<br>

LeSage Report at p. 72 ( {{Tr}}« We believe that the same general principles apply to examinations and cross-examinations of witnesses. Every examination and cross-examination will have strong points and weak points and most counsel engage in some degree of repetition. As with time limits on legal argument, time limits on examinations and cross-examinations would encourage counsel to focus on the strong points and to avoid repetition")<Br>

{{CanLIIRP|Simpson|1ftjr|1988 CanLII 89 (CSC)|[1988] 1 RCS 3}}{{Plurality}}, ( {{Tr}}« 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.")

{{CanLIIRP|Rojas|218cx|2008 CSC 56 (CanLII)|[2008] 3 RCS 111}}{{perSCC|Charron J}}{{atL|218cx|13}} ( {{Tr}}« Generally, statements of accused made outside of Court are receivable in evidence against him, but not for him.")

e.g. {{CanLIIRx|Steiert|hr39c|2018 ABQB 211 (CanLII)}}{{perABQB|Read J}}{{atsL|hr39c|26| à 34}} (e.g. difference between calling witness "bare faced liar" vs "dishonest")<br>

{{CanLIIRP|Rose|1fbr4|2001 CanLII 24079 (ON CA)|53 OR (3d) 417}}{{perONCA|Charron J}}{{atL|1fbr4|27}} ( {{Tr}}« Further, this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers: ... Questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence.")

{{CanLIIRP|Osolin|1frvx|1993 CanLII 54 (CSC)|[1993] 4 RCS 595}}{{perSCC|Cory J}}{{atps|669 and 671}} ( {{Tr}}« complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. ")<br>