Droit d'une partie de contre-interroger un de ses propres témoins au sujet d'une déclaration écrite faite antérieurement

Brouillette c. R., 2005 QCCA 714 (CanLII)

[53] Il est indéniable que ce contre-interrogatoire de Picher n'a pas respecté intégralement le cheminement proposé par la Cour d'appel de la Saskatchewan dans l'arrêt R. c. Milgaard[[1971] C.C.C. (2d), 206 (Sask. C.A.)]. Voici comment le juge en chef de cette Cour, le juge Culliton, s'est exprimé sur le droit d'une partie de contre-interroger un de ses propres témoins au sujet d'une déclaration écrite faite antérieurement:

It is to be noted that the right to cross-examine one's own witness respecting a statement in writing, or reduced to writing, previously made by the witness inconsistent with the evidence given, is not an absolute right. The Judge, in the exercise of his discretion, may or may not grant that permission. This requires some preliminary inquiry by the Judge. That being so, I think the consideration and disposition of the application in jury trials should be made in the absence of the jury. Allegation in the presence of the jury that the witness had, on another occasion, said something inconsistent with what she said in evidence, when leave to cross-examine is refused, might have a very adverse effect on the jury's deliberations, particularly as to the effect to be given to the evidence of that witness.

In my opinion, a procedure that would give effect to the legislation, and at the same time eliminate the possibility of any adverse effect upon the jury, would be as follows:

(1) Counsel should advise the Court that he desires to make an application under s. 9(2) of the Canada Evidence Act.

(2) When the Court is so advised, the Court should direct the jury to retire.

(3) Upon retirement of the jury, counsel should advise the learned trial Judge of the particulars of the application and produce for him the alleged statement in writing, or the writing to which the statement has been reduced.

(4) The learned trial Judge should read the statement, or, writing, and determine whether, in fact, there is an inconsistency between such statement or writing and the evidence the witness has given in Court. If the learned trial Judge decides there is no inconsistency, then that ends the matter. If he finds there is an inconsistency, he should call upon counsel to prove the statement or writing.

(5) Counsel should then prove the statement, or writing. This may be done by producing the statement or writing to the witness. If the witness admits the statement, or the statement reduced to writing, such proof would be sufficient. If the witness does not so admit, counsel then could provide the necessary proof by other evidence.

(6) If the witness admits making the statement, counsel for the opposing party should have the right to cross-examine as to the circumstances under which the statement was made. A similar right to cross-examine should be granted if the statement is proved by other witnesses. It may be that he will be able to establish that there were circumstances which would render it improper for the learned trial Judge to permit the cross-examination, notwithstanding the apparent inconsistencies. The opposing counsel, too, should have the right to call evidence as to factors relevant to obtaining the statement, for the purpose of attempting to show that cross-examination should not be permitted.

(7) The learned trial Judge should then decide whether or not he will permit the cross-examination. If so, the jury should be recalled.

The cross-examination provided for in s. 9(2) must be in the presence of the jury. The purpose of that cross-examination is to attack the credibility of the witness is respect to the evidence already given. As the jury are the judges of credibility, it is obvious the cross-examination would be meaningless if conducted in their absence.

The determination of whether a witness is hostile is a matter solely for the learned trial Judge. It is when the learned trial Judge is of the opinion that the witness proves adverse that s-s. (1) of s. 9 comes into play. The declaration of hostility, as provided for in s-s. (1), is an entirely different matter from that of permitting cross-examination under s-s. (2). In my opinion, there is no conflict and s-s. (2) is a specific exception to the provisions of s-s. (1). In the present case the learned trial Judge had every right to declare the witness Nichol John hostile, and in so doing had the right to consider the cross-examination that had taken place in the presence of the jury on the permission granted under s-s. (2)