Le carnet de droit pénal

Contre-interrogatoires

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General Principles

Voir également: Examinations et Examinations-in-Chief

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]

A witness may be cross-examined on any matter that may "impair his credibility."[5]

Purpose of Cross-Examination

It is generally understood that the purpose of cross-examination is to elicit evidence regarding:[6]

  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."[7]

Appellate Review

The admission of inadmissible evidence through improper cross-examination questions is a question of law and reviewable on a standard of correctness.[8]

A court reviewing a cross-examination must be able to distinguish between those questions that are merely improper from those that compromise trial fairness.[9]

  1. ↑ R c Hart, 1999 NSCA 45 (CanLII), 135 CCC (3d) 377, par Cromwell JA, au para 8 ("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.")
    R c Pires; Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, par Charron J, au para 3 (it is "of fundamental significance to the criminal trial process")
  2. ↑ R c Esau, 2009 SKCA 31 (CanLII), 324 Sask R 95, par Cameron JA, au para 17
  3. ↑ R c Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, par Cory J, aux pp. 663-65 [SCR] ("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.")
    R c Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, par Binnie J, au para 76 ("...the most effective tool he possessed to get at the truth was a full and pointed cross-examination.")
    R c Wallick (1990), 69 Man. R. (2d) 310 (CA)(*pas de liens CanLII) ("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 Osolin, supra
  4. ↑ R c Mitchell, 2008 ONCA 757 (CanLII), 80 WCB (2d) 796, par curiam, aux paras 17 to 19
  5. ↑ R c JB, 2019 ONCA 591 (CanLII), 378 CCC (3d) 302, par Watt JA, au para 29 ("To begin, like any witness who testifies, an accused may be cross-examined on matters that may impair his credibility:...")
    R c Davison, DeRosie and MacArthur, 1974 CanLII 787 (ON CA), 20 CCC (2d) 424, par Martin JA at p. 441, leave to appeal refused, [1974] SCR viii
  6. ↑ R c OGK, 1994 CanLII 8742 (BC CA), 28 CR (4th) 129, par Taylor JA, au para 14
  7. ↑ R c Sylvain, 2014 ABCA 153 (CanLII), 310 CCC (3d) 1, par curiam (2:1), au para 95
  8. ↑ R c Mian, 2012 ABCA 302 (CanLII), 292 CCC (3d) 346, par curiam
  9. ↑ R c AG2015 ABCA 159(*pas de liens CanLII) , au 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.

The permissibility of the question is a "function" of: [11]

  • "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.[12]

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."[13]

Uncorroborated gossip, such as that found online, may not be sufficient to meet the "good faith" requirement before it can be cross-examined on.[14]

Collateral Matters

There is no obligation to cross examine only on topics germane to the allegations. Counsel may cross-examine on collateral topics.[15]

  1. ↑ R c Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193, par Major and Fish JJ (7:0), au para 43
    R c Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, par Cory J, aux pp. 663-65 [SCR] ("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.")
  2. ↑ R c Anandmalik, (1984), 6 OAC 143 (CA)(*pas de liens CanLII)
    R c Giffin, [1988] AJ No 312(*pas de liens CanLII)
    R c Wallick, (1990), 69 Man.R. (2d) 310(*pas de liens CanLII)
  3. ↑ R c Mitchell, 2008 ONCA 757 (CanLII), 80 WCB (2d) 796, par curiam, aux paras 17 to 19
  4. ↑ Brownell v Brownell, 1909 CanLII 21 (SCC), (1909) 42 SCR 368, par Anglin J
  5. ↑ R c Cullen, 1989 CanLII 7241 (ON CA), 52 CCC (3d) 459, par Galligan JA
    R c Titus, 1983 CanLII 49 (SCC), [1983] 1 SCR 259, par Ritchie J
    R c Hoilett, 1999 CanLII 3740 (ON CA), , 4 CR (4th) 372, par Feldman JA
  6. ↑ R c Mian, 2012 ABCA 302 (CanLII), 292 CCC (3d) 346, par curiam
  7. ↑ R c Haussecker, 1998 ABPC 117 (CanLII), 233 AR 238, par Fradsham J, aux paras 18 to 20
  8. ↑ , ibid., aux paras 21 to 22
  9. ↑ R c Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193, par Major and Fish JJ, aux paras 41 to 45
    R c Sylvain, 2014 ABCA 153 (CanLII), 310 CCC (3d) 1, par curiam (2:1), au para 96
  10. ↑ Lyttle, supra, au para 47 ("we believe that a question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question. It is not uncommon for counsel to believe what is in fact true, without being able to prove it otherwise than by cross-examination; nor is it uncommon for reticent witnesses to concede suggested facts — in the mistaken belief that they are already known to the cross-examiner and will therefore, in any event, emerge." [emphasis removed])
  11. ↑ Lyttle, supra, au para 48 ("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.")
  12. ↑ Lyttle, supra, au para 48 ("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.")
  13. ↑ Lyttle, supra, au para 48 ("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.")
  14. ↑ Paciocco, "The law of evidence in a technological age", au p. 222
  15. ↑ R c Burgar, 2010 ABCA 318 (CanLII), 490 AR 241, par 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 c OGK, 1994 CanLII 8742 (BC CA), 28 CR (4th) 129, par Taylor JA
  2. ↑ R c Mandzuk, 1945 CanLII 280 (BC CA), 85 CCC 158 (BCCA), par O'Halloran JA
    R c Miller, 1959 CanLII 466 (BC CA), 125 CCC 8 (BCCA), par O'Halloran JA
  3. ↑ R c II, 2013 ABCA 2 (CanLII), 542 AR 52, par Berger J - in context of a jury trial
  4. ↑ R c Sylvain, 2014 ABCA 153 (CanLII), 310 CCC (3d) 1, par curiam (2:1), au para 94
  5. ↑ , ibid., au para 96
  6. ↑ , ibid., au para 96
  7. ↑ , ibid., au para 96
    R c Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, par McIntyre J, aux pp. 780-2
  8. ↑ R c Speid, 1988 CanLII 7060 (ON CA), 42 CCC (3d) 12, par Cory JA
    R c Dyck, 1969 CanLII 988 (BC CA), [1970] 2 CCC 283, par Robertson JA
    see also Rule in Browne v Dunn (below)
  9. ↑ e.g. R c Munro, 2013 ONCJ 576 (CanLII), OJ No 5047, par 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:[2]

  • unduly repeat cross-examination questions[3]
  • question solely to harass or embarrass the witness[4]
  • intentionally insult or abuse a witness[5]
  • ask a question to elicit evidence that is not admissible [6]
  • ask questions that elicit privileged information[7]
  • aggressive questioning that crosses the line to abusive[8]
  • ask the accused why the complainant would make up the accusation[9]
  • ask a witness whether any another witness is lying[10]
  • ask compound questions[11]
  • any question where the "prejudicial effect outweighs their probative value."[12]
  • any question the examiner knows that the witness cannot answer.[13]
  • a question that has no purpose other than to elicit hearsay.[14]
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.[15]

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.[16]

The courts should not let the complainant become "a victim of an insensitive judicial system."[17]

  1. ↑ R c Kelly, 2015 ABCA 200 (CanLII), 325 CCC (3d) 136, par curiam, au para 5
  2. ↑ R c Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193, par Major and Fish JJ, au para 44 ("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. ")
  3. ↑ R c Bourassa, 1991 CanLII 11734 (QC CA), 67 CCC (3d) 143, par Tourigny JA
    R c McLaughlin, 1974 CanLII 748 (ON CA), 15 CCC (2d) 562, par Evans JA
  4. ↑ R c Logiacco, 1984 CanLII 3459 (ON CA), 11 CCC (3d) 374, par Cory JA
    R c Bradbury, 1973 CanLII 1442 (ON CA), 14 CCC (2d) 139 (ONCA), par Kelly JA
    R c Mahonin (1957), 119 CCC 319 (BSCS)(*pas de liens CanLII)
    R c Prince (1945), 85 CCC 97, [1946] 1 DLR 659(*pas de liens CanLII)
  5. ↑ R c Ma, 1978 CanLII 2405 (BC CA), Ho and Lai (1978), 44 CCC (2d) 537, par Bull JA
    McLaughlin, supra
  6. ↑ R c Howard, 1989 CanLII 99 (SCC), [1989] 1 SCR 1337, 48 CCC (3d) 38 at 46 (SCC), par 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.")
  7. ↑ R c AJR, 1994 CanLII 3447 (ON CA), 94 CCC (3d) 168, par Doherty JA
  8. ↑ , ibid., au p. 176
    R c Brown & Murphy, 1982 ABCA 292 (CanLII), 1 CCC (3d) 107, par McClung JA (2:1) affd 1985 CanLII 3 (SCC), [1985] 2 SCR 273, [1985] SCJ No. 57
  9. ↑ R c De Francesia, 1995 CanLII 1609 (ON CA), 104 CCC (3d) 189, par curiam, au p. 193-194
  10. ↑ Brown & Murphy, supra
  11. ↑ R c Gallie, 2015 NSCA 50 (CanLII), 324 CCC (3d) 333, par Fichaud JA
  12. ↑ Lyttle, supra, au para 44
  13. ↑ Loughead v. Collingwood (1908), 16 O.L.R. 64
    Hyndmann v Stephens, 1909 CanLII 293 (MB CA), 19 Man R 187
  14. ↑ Bradbury, supra
  15. ↑ e.g. see R c Rose, 2001 CanLII 24079 (ON CA), 153 CCC (3d) 225, par Charron JA
  16. ↑ , supra, au para 51 (" A trial judge must balance the rights of an accused to receive a fair trial with the need to prevent unethical cross-examination. There will thus be instances where a trial judge will want to ensure that counsel is not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box."[quotation marks removed])
  17. ↑ R c Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, par Cory J

Cross-Examination by Self-Represented Accused

Voir également: Amicus Curae

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.)

Note: 486.3(1), (2), (3), (4), (4.1), et (5)

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

General Limitations on Cross-Examination

A Court is not permitted to completely prohibit the cross of a witness who testifies.[1] Nor may a court cut-off a direct examination and end any further questioning by either party.[2]

Discretion to Limit Cross

The court has a discretionary power to limit cross-examination where repetitive, irrelevant, and unproductive. [3]

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.[4]

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.[5]

  1. ↑ Innisfil Twp. v. Vespra Twp., 1981 CanLII 59 (SCC), [1981] 2 SCR 145(citation complète en attente)
  2. ↑ Chanachowicz v. Winona Wood Ltd., 2016 ONSC 160 (citation complète en attente)
  3. ↑ R c Jardine, 2011 BCSC 248 (CanLII), par MacKenzie J, aux paras 18 to 20
  4. ↑ R c Bradbury, 1973 CanLII 1442 (ON CA), 14 CCC (2d) 139, par 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.")
    R c Proverbs, 1983 CanLII 3547 (ON CA), 9 CCC (3d) 249, par Dubin JA
    R c Makow, 1973 CanLII 1621 (BC CA), 13 CCC (2d) 167, par Ferris CJ
  5. ↑ LeSage Report at p. 72 ("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")
    R c Bordo, 2016 QCCS 477 (CanLII), au para 147

Confrontation Rule (The Browne v Dunn 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.[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 c Hebert, 1954 CanLII 48 (SCC), [1955] SCR 120
  2. ↑ R c Drake, 1970 CanLII 577 (SK QB), 1 CCC (2d) 396 (SKQB), par 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 c Simpson, 1988 CanLII 89 (SCC), [1988] 1 SCR 3, ("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 c Rojas, 2008 SCC 56 (CanLII), [2008] 3 SCR 111, par Charron J, au para 13 ("Generally, statements of accused made outside of Court are receivable in evidence against him, but not for him.")

Cross-examination by Crown Counsel

It is not appropriate for Crown counsel to threaten a witness with prosecution for perjury during the examination.[1]

  1. ↑ R c Provencher, 1955 CanLII 86 (SCC), [1956] SCR 95

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"[1]

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.[2]

Questions must always be considered in context, and certain improper questions may be proper in the right context.[3]

Collateral Instances of Honesty

The Crown may not cross-examine the accused on lies told by the accused to the police at unrelated instances.[4]

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.[5]

  1. ↑ AJR, supra, au p. 176
    R c Fanjoy, 1985 CanLII 53 (SCC), [1985] 2 SCR 233, par McIntyre J
    R c Ruptash, 1982 ABCA 165 (CanLII), 68 CCC (2d) 182, par curiam, au p. 189, 36 AR 346 (CA)
  2. ↑ R c MAJ, 2016 ONCA 725(*pas de liens CanLII) , au para 26
  3. ↑ e.g. R c Steiert, 2018 ABQB 211 (CanLII), par Read J, aux paras 26 to 34 (e.g. difference between calling witness "bare faced liar" vs "dishonest")
  4. ↑ R c Lee, 2005 CanLII 46628 (ON CA), 205 OAC 155, par curiam
  5. ↑ R c Musitano, 1985 CanLII 1983 (ON CA), 24 CCC (3d) 65, par curiam

Accused's Criminal Record

Voir également: Credibility Based on Prior 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. [1] The accused cannot be asked about the details of the accused's criminal record.[2]

Administrative pardons can be used for the purposes of cross-examination in trial.[3]

  1. ↑ semble R c Burgar, 2010 ABCA 318 (CanLII), 490 AR 241, par curiam
  2. ↑ R c Schell, 2000 CanLII 16917 (ON CA), 148 CCC (3d) 219, par Rosenberg JA
    Burgar, supra
  3. ↑ R c Gyles, 2003 CanLII 49339 (ON SC), [2003] OJ No 1924, par Wein J, aux paras 16 to 21

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[1]
  • asking the accused whether the complainant is lying or committing perjury[2]
  • asking accused if police officer(s) are lying[3]
  • asking to comment on the veracity of any other witness;[4]

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]

  1. ↑ R c Dedier, 2012 ONSC 2889 (CanLII), par 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 c LL, 2009 ONCA 413 (CanLII), [2009] OJ No 2029 (CA), par Simmons JA, au para 15
    R c Rose, 2001 CanLII 24079 (ON CA), 53 OR (3d) 417, par Charron JA, au para 27
    R c Bouhsass, 2002 CanLII 45109 (ON CA), 169 CCC (3d) 444, par curiam
  2. ↑ R c Yakeleya, 1985 CanLII 3478 (ON CA), 20 CCC (3d) 193, par Martin JA - The main reason is that it may tend to shift the burden upon the accused to answer the question
    R c SW, 1994 CanLII 7208 (ON CA), 90 CCC (3d) 242, par Finlayson JA
    R c Jones, 1992 CanLII 2971 (QC CA), 74 CCC (3d) 377, par Proulx JA
    R c Rose, 2001 CanLII 24079 (ON CA), 53 OR (3d) 417, par Charron J, au para 27 ("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.") R c Cole, 1999 CanLII 4010 (ON CA), [1999] OJ No 1647 (CA), par curiam
    R c F(A), 1996 CanLII 10222 (ON CA), 30 OR (3d) 470, 1 CR (5th) 382 (CA), par curiam
    R c Masse, 2000 CanLII 5755 (ON CA), 134 OAC 79 (CA), par curiam
    R c Vandenberghe, 1995 CanLII 1439 (ON CA), 96 CCC (3d) 371, par curiam
    R c S(W), 1994 CanLII 7208 (ON CA), 18 OR (3d) 509, 90 CCC (3d) 242, par Finlayson JA
  3. ↑ R c Brown & Murphy, 1982 ABCA 292 (CanLII), 1 CCC (3d) 107, par McClung JA aff'd [1985] 2 SCR 273, 1985 CanLII 3 (SCC), par McIntyre J
    R c Markadonis v The King, 1935 CanLII 44 (SCC), [1935] SCR 657, par Duff CJ
  4. ↑ , ibid.
    Rose, supra, au para 27
    Brown, supra, aux paras 15 to 23 (ABCA)
    R c Henderson, 1999 CanLII 2358 (ON CA), [1999] OJ No 1216 (CA), par Labrosse JA, au para 15
    R c Vandenberghe, 1995 CanLII 1439 (ON CA), [1995] OJ No 243 (CA), par curiam
  5. ↑ R c White, 1999 CanLII 3695 (ON CA), 132 CCC (3d) 373, par Doherty JA, au para 14

Right to Silence

The crown cannot ask about the reasons behind the accused exercising the right to silence[1]

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.[2] Any suggestion that the accused should not be trusted because he did not reveal anything prior to trial is impermissible.[3]

  1. ↑ R c Schell, 2000 CanLII 16917 (ON CA), 148 CCC (3d) 219, par Rosenberg JA
  2. ↑ R c JS, 2018 ONCA 39 (CanLII), 140 OR (3d) 539, par Roberts JA, aux paras 50 to 66
  3. ↑ , ibid., au para 56

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.[1]

Access to Disclosure
  • question regarding the accused's access to the disclosure and suggest their version is crafted to avoid potential pitfalls[2]

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.[3] However, this will be determined on a case-by-case basis.[4]

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.[5]However, in some cases it is permissible such as to undermine a defence of alibi by arguing tailored evidence.[6]

There is a limited ability to cross-examine an accused person using their knowledge and access to disclosure.[7]

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.[8]

  1. ↑ R c Bouhsass, 2002 CanLII 45109 (ON CA), 169 CCC (3d) 444, par curiam, au para 12
    R c Usereau, 2010 QCCA 894 (CanLII), 256 CCC (3d) 499, par Hilton JA
  2. ↑ , ibid. at 56
    R c Bouhsass, 2002 CanLII 45109 (ON CA), 169 CCC (3d) 444, par curiam
  3. ↑ See "Improper questioning" above
    R c John, 2016 ONCA 615 (CanLII), 133 OR (3d) 360, par Sharpe JA, au to 60 para 58 to 60
    R c JS, 2018 ONCA 39 (CanLII), 140 OR (3d) 539, au para 60
    also R c Bouhsass, 2002 CanLII 45109 (ON CA), 169 CCC (3d) 444, par curiam
  4. ↑ R c Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, par Scott CJ, au para 260
  5. ↑ White, supra
  6. ↑ R c FEE, 2011 ONCA 783 (CanLII), 282 CCC (3d) 552, par Watt JA, au para 71
    see also R c Cavan, 1999 CanLII 9309 (ON CA), 139 CCC (3d) 449, par curiam
  7. ↑ e.g. R c SDB, 2012 SKCA 119 (CanLII), 405 Sask R 97, par curiam
  8. ↑ R c Thain, 2009 ONCA 223 (CanLII), 243 CCC (3d) 230, par Sharpe JA, aux paras 18 to 29

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";[1]
  • to express personal views and editorial comments into the questions, including their belief that the witness is a "liar";[2]
  • to make baseless and highly prejudicial suggestions to the accused[3]
  • ask the accused to explain the failure to call certain witnesses, and to explain why his own evidence was not corroborated.[4]
  • to mock and unfairly challenge the accused's adherence to his religious beliefs[5]
  1. ↑ , ibid.
  2. ↑ , ibid.
    Schell, supra, au para 53
  3. ↑ , ibid.
  4. ↑ , ibid.
  5. ↑ , ibid.

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]

See also: Documentary Evidence

  1. ↑ R c Paterson, 1998 CanLII 14969 (BC CA), 122 CCC (3d) 254, par curiam, au para 113
    McWilliams, Canadian Criminal Evidence (3d ed.) at 6-9
  2. ↑ Paterson, supra, au para 113
    R c Deacon, 1947 CanLII 38 (SCC), [1947] SCR 531, par Kerwin J
    R c Taylor, 1970 CanLII 1053 (MB CA), 1 CCC (2d) 321, par Dickson JA
    (Man. C.A.), au p. 331
  3. ↑ Paterson, supra, au para 113
  4. ↑ Paterson, supra, au para 113
  5. ↑ R c Carlos, 2016 ONCA 920 (CanLII), OJ No 6288, par curiam, aux paras 2 to 3

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.[1]

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.[2]

A non-accused witness may be cross-examined on conduct underlying a conviction. The only limitation is relevancy and propriety.[3]

The Crown may cross a witness on impartiality and whether they are attempting to assist their friend, the accused. [4]

A witness may be asked about whether he had any conversations with other witnesses during a break in the trial.[5]

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.[6]

Child Witnesses

Children perform differently under cross examination than adults. A "skilful cross-examination is almost certain to confuse a child."[7]

  1. ↑ R c John, 2017 ONCA 622 (CanLII), 350 CCC (3d) 397, par Watt JA, au para 56
    R c Jerace, 2021 BCCA 94 (CanLII), par Hunter JA, au para 91
  2. ↑ R c Chartrand, 2002 CanLII 6331 (ON CA), 170 CCC (3d) 97, par Cronk JA
  3. ↑ R c Miller, 1998 CanLII 5115 (ON CA), 131 CCC (3d) 141, par Charron JA, aux paras 23 to 41
  4. ↑ R c Wiebe, 2006 CanLII 3955 (ON CA), 205 CCC (3d) 326, par curiam, au para 21
  5. ↑ R c Peazer, 2005 CanLII 30057 (ON CA), 200 CCC (3d) 1, par Rosenberg JA, aux paras 22, 23
  6. ↑ R c Upton, 2008 NSSC 338 (CanLII), 239 CCC (3d) 409, par Beveridge J, au para 17
  7. ↑ However, as the Supreme Court of Canada has recognized, “skilful cross-examination is almost certain to confuse a child, even if she is telling the truth” (see: R. R c F(CC), [1997 3 S.C.R. 1183 {{{3}}}], at para. 48)

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 c Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, par Binnie J, au para 76
    R c Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, par Cory J, aux pp. 669 and 671 ("complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. ")
  2. ↑ , ibid., au para 76
  3. ↑ Osolin, supra, au p. 671
  4. ↑ Osolin, supra, au 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 CanLII 180 (SCC), [1970] SCR 409, 2 CCC (2d) 227, par Judson J

After Re-Direct

The court has discretion to permit additional cross-examination after re-direct where the re-direct raises new matters.[1]

  1. ↑ R. v. Palmer (1835),6 Car. & P. 652, 172 E.R. 1405(*pas de liens CanLII)
    see also C R Wimmer, Re-Examining and Re-Opening, 1985 Criminal Law II: Criminal Procedure and Advocacy Conference Law Society of Saskatchewan, Continuing Professional Development, 1985 CanLIIDocs 224, <https://canlii.ca/t/tb45>

See Also

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