Canadian Criminal Procedure and Practice/Trials/Examinations

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Questioning[edit]

Leading questions[edit]

In general, counsel cannot ask leading questions on of the witness that they call.[1] Leading questions are questions that clearly seek a particular answer (eg. "you saw the accused, didn't you?") or are questions that assume a foundation not in evidence (eg. "what happened after the accused stabbed him?").[2]

The reason for not allowing leading questions include:[3]

  • bias of the witness in favour of the calling party
  • the danger that the calling party will only bring out helpful information without any balance that could come from the witnesses own version[4]
  • the possibility that the witness will merely agree with everything put to the witness by the calling party.[5]
  • a witness who is nervous, not alert, confused or otherwise easily persuaded may accept the suggestion of a leading question without reflection.[6] The leading question may "impose the questioner’s will on the witness so as to elicit inaccurate information, absent an intention to do so on the part of the counsel or witness”[7]

The importance of not leading depends on the circumstances. The rule should be flexible at the least for the sake of expediency.[8]

It is usually permissible to lead on a number of issues:

  • introductory or non-controversial matters such as name, address, position, etc.[9]
  • for the purpose of identifying persons or things[10]
  • where "necessary to direct the witness to a particular matter or field of inquiry."[11]
  • to allow one witness to contradict another regarding statements made by that other[12]
  • where the witness is declared hostile;
  • where the witness is defective based on age, education, language, mental capacity[13]
  • where it is a complicated matter, at the judge's discretion[14]

A judge has discretion to allow leading where it is in the interest of justice.[15]

The answer to a leading question is not necessaries inadmissible but will carry very little or less weight, especially on critical issues.[16]

The weight given to an answer from a leading question will depend on "how leading the question was, the subject matter and other evidence before the Court." [17] It will often be that the improperness of the question, and so the weight given to the answer, will be assessed in the light of whole circumstances of the case, after subsequent testimony of the witness.[18]

  1. c.f. R. v. Bhardwaj, (2008), 456 A.R. 313 (Alta. Q.B.) per Lee J at para. 45 suggests that it only goes to weight ( "There is no rule of law that the answer to a leading question must be given no weight, or that they cannot be asked.”)
  2. R v. Rose 2001 CanLII24079 ONCA at 9
    R. v. W(E.M.) (2001) 270 C.C.C. (3d) 464 (SCC) at para. 9
    Nicolls v. Kemp (1915), 171 E.R. 408 per Lord Ellenborough (“If questions are asked, to which the answer yes or no would be conclusive, they would certainly be objectionable.”)
  3. R. v. Rose, 2001 CanLII 24079, (2001) 153 CCC 3d 225 (ONCA)
  4. Maves
  5. Maves v Grant Truck Pacific Railway Co (1913) 6 Alta LR 396
    Connor v Brant (1914) 31 OLR 274
    Sopkina, Law of Evidence in Canada at ss.16.33
    R. v. Clancey, [1992] O.J. No. 3968 (Ont. Sup. Ct.), per Watt J. (the witness “may be too disposed to assent to the proposition of counsel, rather than upon reflection or exertion of the witness’ own and true memory”)
  6. Maves
  7. MacWilliams Canadian Criminal Evidence 4th Edition p. 18:10
  8. R. v. Rose, 2001 CanLII 24079 (ON CA)
  9. Maves v. Grand Truck Railways (1913) 5 WWR 212 at 219 (ABCA)
    Cross on Evidence 3rd ed. (London: Butterworths 1967) p. 189
    R. v. Rose, 2001 CanLII 24079 (ON CA) at para. 9
  10. Delisle, "Evidence: Principles and Problems" (7th Ed.) at p. 414, states at common law
  11. Rose at para. 9
  12. Delisle, ibid.
  13. Delisle, ibid.
  14. Delisle, ibid.
  15. Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, p. 22
  16. Moor v. Moor [1954] 2 All ER 458 (CA) R. v. Williams, (1982), 66 C.C.C. (2d) 234 (Ont. C.A.) see p. 236 (“It is clear, however, that an answer elicited by a leading question is entitled to little, if any, weight.”)
    R. v. Nicholson 1998 ABCA 290 (CanLII), (1998), 129 C.C.C.(3d) 198 (Alta. C.A.)
  17. R. v. Bhardwaj, (2008), 456 A.R. 313 (Alta. Q.B.) per Lee J at para. 45
    MacWilliams Canadian Criminal Evidence 4th Edition at p. 18 - 16
  18. MacWilliams Canadian Criminal Evidence 4th Edition at p. 18 - 16 (“The weight ... given ... is thus best assessed in light of the circumstances of the case. ...subsequent testimony from the witness, whether in chief or cross-examination, may make clear that the leading question had no improper impact on the answer elicited.”)

Improper questioning[edit]

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

  • unduly repeat cross-examination questions.[1]
  • question soley to harass or embarass the witness.[2]
  • Counsel cannot intentionally insult or abuse a witness.[3]
  • ask a question to elicit evidence that is not admissible [4]
  • ask questions that elicit privileged information[5]
  • aggressive questioning that crosses the line to abusive.[6]
  • ask the accused why the complainant would make up the accusation.[7]
  • ask a witness whether any another witness is lying[8]

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[9]
  • ask the accused whether the complainant is lying or committing perjury[10]
  • asking accused if police officer(s) are lying[11]
  • details of the accused's criminal record[12]
  • reasons for exercising the right to silence[13]
  • question regarding the accused's access to the disclosure and suggest their version is crafted to avoid potential pitfalls[14]
  • to the accused a "barefaced liar";[15]
  • to express personal views and editorial comments into the questions;[16]
  • to make baseless and highly prejudicial suggestions to the accused[17]
  • ask the accused to explain the failure to call certain witnesses, and to explain why his own evidence was not corroborated.[18]
  • to mock and unfairly challenge the accused's adherence to his religious beliefs[19]

An appellate court should only intervene when the questioning is so improper that it "tends bring the administration of justice into disrepute"[20]

  1. R. v. Bourassa (1991), 67 CCC (3d) 143 (QCCA); R. v. McLaughlin (1974), 15 CCC (2d) 562 (QCCA)
  2. R. v. Logiacco (1984), 11 CCC (3d) 374 (ONCA); R. v. Bradbury (1973), 14 CCC (2d) 139 (ONCA)
    R. v. Mahonin (1957), 119 CCC 319 (BSCS)
    R. v. Prince (1945), 85 C.C.C. 97, [1946] 1 D.L.R. 659
  3. R. v. Ma, Ho and Lai (1978), 44 C.C.C. (2d) 537
    McLaughlin (1974), 15 C.C.C. (2d) 562
  4. R. v. Howard 1989 CanLII 99 (SCC), (1989), 48 C.C.C. (3d) 38 at 46 (S.C.C.): ("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.")
  5. R. v. A. J. R., 1994 CanLII 3447 (ON CA)
  6. R v R(AJ) 1994 CanLII 3447 at p.176
    R. v. Brown & Murphy reflex, (1983), 1 C.C.C. (3d) 107 (Alta.C.A.)
  7. R. v. De Francesia 1995 CanLII 1609 (ON CA), (1995), 104 C.C.C. (3d) 189 at p.193-194
  8. R. v. Brown, 1982 ABCA 292 (CanLII)
  9. R. v. Dedier, 2012 ONSC 2889 -- 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. L.L., [2009] O.J. No. 2029 (C.A.) at para. 15
    R. v. Rose, 53 O.R. (3d) 417, at para. 27
    R. v. Bouhsass, 2002 CanLII 45109 (ON CA)
  10. R. v. Yakeleya, (1985), 20 C.C.C. (3d) 193 - The main reason is that it may tend to shift the burden upon the accused to answer the question
    R.v. S.W. 1994 CanLII 7208 (ON CA), (1994) 90 C.C.C. (3d) 242 (Ont. C.A.)
    R.v. Jones 1992 CanLII 2971 (QC CA), (1992) 74 C.C.C. (3d) 377 (Qué. C.A.)
  11. R. v. Brown & Murphy, (1983), 1 C.C.C. (3d) 107 (Alta.C.A.)
    Markadonis v. The King, [1935] S.C.R. 657
  12. R v Schell
  13. R. v. Schell, 2000 CanLII 16917 (ON CA)
  14. R v Schell at 56
    R. v. Bouhsass, 2002 CanLII 45109 (ON CA)
  15. Bouhsass
  16. Bouhsass
    R. v. Schell, 2000 CanLII 16917 (ON CA) at 53
  17. Bouhsass
  18. R. v. Bouhsass, 2002 CanLII 45109 (ON CA)
  19. Bouhsass
  20. R v R(AJ) 1994 CanLII 3447 at p.176
    R. v. Fanjoy 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233;
    R. v. Ruptash, [1982] 68 C.C.C. (2d) 182 at p.189, 36 A.R. 346 (C.A.)

Impeachment[edit]

Cross-examining an accused on a prior statement[edit]

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, [1955] SCR 120 (SCC)
  2. R. v. Drake, (1970) 1 CCC 2d 396 (SKQB)

Objections[edit]

Where trial counsel does not object to inadmissible evidence, that failure cannot make inadmissible evidence admissible.[1]

  1. R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111 at 126-27 [1];
    R. v. D.C.B. 1994 CanLII 6412 (MB CA), (1994), 95 Man.R. (2d) 220 at para. 14 (C.A.)[2]

Cross-Examination[edit]

The cross-examination is a "cornerstone of the adversarial trial process"[1] and is "a fundamental feature of a fair trial"[2]. However, while the right to cross-examination is broad, counsel are generally bound by the rules of relevancy and materiality (R. v. Mitchell, 2008 ONCA 757 (CanLII), 2008 ONCA 757, paras. 17-19).

As such the scope of questioning can be broad. It is recognized as "being protected by ss. 7 and 11(d)" of the Charter.[3]

The right however is limited by the requirements of relevancy and materiality,[4] with relevancy being the main criteria.[5]

Suggestions can be put to the witness as long as there is a "good faith" basis for the question.[6] 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.

Witnesses, except for an accused, may be cross-examined on disreputable conduct so long as it relevant.[7]

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.[8]

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.[9]

It is not permissible for either party to ask any questions about the veracity of another witness. [10]

  1. R v Hart, 1999 NSCA 45 at 8
    R v Pires; Lising 2005 SCC 66 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 at para. 17
  3. R v Lyttle 2004 SCC 5 at para 43
  4. R. v. Mitchell, 2008 ONCA 757 (CanLII), 2008 ONCA 757, paras. 17-19
  5. Brownell v. Brownell, (1909) 42 SCR 368 1909 CanLII 21
  6. R. v. Lyttle, 2004 SCC 5
  7. R. v. Cullen, (1989), 52 C.C.C. (3d) 459 (Ont. C.A.)
    R. v. Titus, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259;
    R. v. Hoilett, (1999), 4 C.R. (4th) 372 (Ont. C.A.)
  8. R. v. Haussecker, 1998 ABPC 117 at 18-20
  9. R. v. Haussecker, 1998 ABPC 117 at 21-22
  10. R. v. Mian 2012 ABCA 302 (CanLII)

Cross-Examination by Self-Represented Accused[edit]

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 focussed, rational, and relevant.[6]

  1. see also: R. v. Predie, 2009 O.J. No. 2723
    R. v. D.J. 2011 NSPC 3, NSJ No 262
  2. R. v. Tehrankari, [2008] O.J. No. 565 para 19
  3. See R. v. D.P.G., [2008] O.J. No. 767 (ONSC)
  4. R v Jones, [2011 NSJ 262
  5. R. v. Gendreau 2011 ABCA 256
  6. R. v. Predie, [2009] O.J. No. 2723

Confrontation Rule (The Brown v. Dunn Rule)[edit]

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]

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.[3]

A more flexible approach has been to focus on whether the failure created an unfairness. [4]

It has been suggested that the rule should only apply to "matters of substance" and not "minor details".[5]

Some courts have simply put the failure to confront the witness as a matter of weight given to the evidence.[6]

Nevertheless, failure to put the counter story to a particular witness can result in an adverse finding on the counter-story.[7]

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.[8]

Where the accused testifies and refutes the Crown's evidence, the rule may not apply such that the Crown need not to 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.[9] 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.[10] </ref>

  1. R. v. Dyck, [1970] 2 C.C.C. 283 (B.C.C.A.)
    Brown v. Dunn (1893), 6 R. 67 (H.L.)
  2. R. v. I.I., 2013 ABCA 2 (CanLII) at para. 8 citing McWilliams, Canadian Criminal Evidence, 4th ed. (Aurora: Canada Law Book, 2003) at p. 18-104
  3. R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 781
  4. R v Johnson, [2010] OJ No. 4153 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.), at pp. 636-37
    R. v. Giroux 2006 CanLII 10736 (ON CA), (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42
    R. v. Lyttle 2004 SCC 5 at para. 65
    R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 781
  5. R. v. Giroux at para. 46 R. v. Werkman 2007 ABCA 130 at para. 7
  6. R. v. MacKinnon, 1992 CanLII 488 (BCCA)
    R. v. O.G.K., 1994 CanLII 8742 (BC CA)
  7. R. v. Mete, (1973), 3 W.W.R. 709 (B.C.C.A.)
    R. v. Khuc, 2000 BCCA 20
    R. v. McNeill (2000), 144 C.C.C. (3d) 551 (B.C.C.A.)
    2000 CanLII 4897 (ON CA)
    R. v. Carter, 2005 BCCA 381 at 54 to 60
    R. v. Ali, 2009 BCCA 464
  8. e.g. see comments in R v Sparvier, 2012 SKPC 67 at para. 31
  9. R. v. I.I., 2013 ABCA 2 (CanLII) - Crown only cross-examined on collateral matters and not the substance of incident
  10. I.I. at para. 20, 23

Cross-Examination of the Accused[edit]

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.

The Crown may not cross-examine the accused on lies told by the accused to the police at unrelated instances.[1]

See details at Canadian Criminal Evidence/Credibility/Criminal Record

  1. R. v. Lee, 2005 CanLII 46628 (ON CA)

Cross Examination of Non-accused Persons[edit]

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]

  1. R. v. Chartrand, 2002 CanLII 6331 (ON CA)

During a Preliminary Inquiry[edit]

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: Canadian Criminal Procedure and Practice/Preliminary Inquiry

  1. Patterson v. The Queen (1970), 2 C.C.C. (2d) 227, 1970 CanLII 180 (SCC), [1970] SCR 409

Re-Examination or Re-Direct[edit]

A party calling a witness is entitled to re-examine the witness after cross-examination. The scope of the re-examination is limited to matters that arose in cross-examination.[1] Its purpose is to allow the witness to explain or qualify answers that were given in cross-examination. New matters may generally not be raised in questioning.

New facts may be raised in re-examination at the discretion of the judge. If the judge permits it, the opposing party must be permitted to cross-examine.[2]

The rule against leading questions still applies in re-examination.[3]

Re-examination may not be used to improperly bolster credibility of the witness after impeaching credibility in cross-examination.[4]

  1. R v Moore, (1984), 15 C.C.C. (3d) 541 (Ont. C.A.) at 66 cited in R. v. Evans [1993] 2 SCR 639 at 36
  2. Moore, supra at 66
  3. Moore, supra at 66
    See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567
  4. R. v. Moore, (1984), 15 C.C.C. (3d) 541 (Ont. C.A.)

See Also[edit]