Les principes et les lignes directrices à suivre pour l’application des dispositions en matière de liberté sous caution lors d’une audience contestée

R. c. Antic, 2017 CSC 27

Lien vers la décision

[67]                             En conséquence, les principes et les lignes directrices à suivre pour l’application des dispositions en matière de liberté sous caution lors d’une audience contestée sont les suivants :

a)                  Les accusés jouissent du droit constitutionnel à la présomption d’innocence, présomption dont le corollaire est le droit constitutionnel à la mise en liberté sous caution.

b)                  L’alinéa 11e) garantit tant le droit de ne pas être privé d’une mise en liberté sous caution sans juste cause que le droit à une mise en liberté sous caution assortie de conditions raisonnables.

c)                  Sauf exceptions, une mise en liberté inconditionnelle sur remise d’une promesse constitue la solution par défaut à adopter lorsqu’il s’agit d’accorder une mise en liberté (par. 515(1)).

d)                  Le principe de l’échelle énonce la manière dont d’autres formes de mise en liberté doivent être imposées. Il exige qu’on [traduction] « favorise la mise en liberté à la première occasion raisonnable et, eu égard [aux critères légaux de détention], aux conditions les moins sévères possible » (Anoussis, par. 23). Ce principe doit être suivi rigoureusement.

e)                  S’il propose une autre forme de mise en liberté, le ministère public doit démontrer la nécessité de celle‑ci. Plus la forme de mise en liberté est restrictive, plus lourd est le fardeau imposé à l’accusé. En conséquence, un juge de paix ou un juge ne peut imposer une forme plus restrictive de mise en liberté que si le ministère public a démontré que celle‑ci est nécessaire eu égard aux critères légaux de détention.

f)                    Chaque échelon de l’échelle doit être examiné de façon individuelle et doit être écarté avant qu’il soit possible de passer à une forme plus restrictive de mise en liberté. En cas de désaccord des parties sur la forme de mise en liberté à accorder, le juge de paix ou le juge commet une erreur de droit en ordonnant une forme plus restrictive de mise en liberté sans justifier sa décision d’écarter les formes moins sévères.

g)                  La mise en liberté avec engagement et caution est l’une des formes les plus sévères de mise en liberté. Une caution ne devrait être exigée que dans le cas où toutes les formes moins sévères de mise en liberté ont été examinées et écartées en raison de leur caractère inapproprié.

h)                  Il n’est pas nécessaire d’imposer un cautionnement en espèces à des accusés si eux‑mêmes ou leurs cautions possèdent des biens recouvrables par des moyens raisonnables et s’ils sont en mesure, à la satisfaction du tribunal, de mettre ceux‑ci en gage pour justifier la mise en liberté. Un engagement est l’équivalent fonctionnel du cautionnement en espèces et a le même effet coercitif. En conséquence, sous le régime des al. 515(2)d) ou 515(2)e), le cautionnement en espèces ne devrait être imposé qu’en présence de circonstances exceptionnelles où un engagement avec caution est impossible.

i)                    Lorsque de telles circonstances exceptionnelles existent et qu’un cautionnement en espèces est ordonné, le montant fixé ne doit pas être élevé au point où il équivaut dans les faits à une ordonnance de détention; autrement dit, ce montant ne devrait pas aller au‑delà des ressources auxquelles l’accusé et ses cautions ont facilement accès. Corollairement, le juge de paix ou le juge a, au moment de l’établissement du montant du cautionnement, l’obligation positive de s’enquérir de la capacité de l’accusé de payer. Le montant fixé ne doit pas être plus élevé que nécessaire pour dissiper la préoccupation qui justifierait par ailleurs la détention de l’accusé, et doit être proportionné aux moyens de l’accusé et aux circonstances de l’affaire.

j)                    Les conditions de mise en liberté visées au par. 515(4) ne peuvent [traduction] « être imposées que dans la mesure où elles sont nécessaires » pour dissiper les préoccupations liées aux critères légaux de détention et pour permettre la mise en liberté de l’accusé^[5]. Elles ne doivent pas être imposées pour modifier le comportement de l’accusé ou pour le punir.

k)                  Lorsqu’une demande de révision d’une ordonnance relative à la mise en liberté sous caution lui est présentée, le tribunal doit suivre le processus de révision applicable à cet égard énoncé dans St‑Cloud.

Il peut y avoir complot même si outre l’accusé, aucun autre conspirateur n’est connu

R v Nguyen, 2020 ABCA 345

Lien vers la décision

[21]           The appellant submits that, to secure a conviction for conspiracy, the Crown must prove that at least two of the named persons agreed to achieve the unlawful object. He acknowledges that where an indictment alleges that the named person conspired “with other unknown persons, proof of participation of all named conspirators is not essential”, and that “where the evidence establishes the conspiracy alleged between a named person and a person or persons unknown, the fact that the evidence fails to establish another named person’s complicity does not entitle the first named to an acquittal”: R v Root at para 69, citing R v Paterson (1989) 1985 CanLII 167 (ON CA), 44 CR (3d) 150 (ONCA) at pp 156-7. However, the appellant submits that if there is no allegation and no evidence that the named person conspired with “unknown persons”, the Crown must prove participation by at least two of the named persons. As the trial judge was not satisfied beyond a reasonable doubt that Henry or Byran were participants in the conspiracy, the appellant should have been acquitted.

[22]           In both Root and Paterson, the indictment alleged the participation of unknown persons. However, neither case stands for the proposition that such wording is required in order to find one of the named participants guilty of conspiracy.

La fin prématurée d'un contre-interrogatoire ne vicie pas nécessairement le procès

R v Durocher, 2022 NWTCA 1

Lien vers la décision

[25]           As this Court found in WAP at para 37: “Premature termination of cross examination is not always fatal.” While it is recognized that the “opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused”, it is not absolute: R v Lyttle, 2004 SCC 5 at paras 42-45, [2004] 1 SCR 193 [Lyttle].

[26]           In situations where some direct evidence by the complainant is before the jury, the approach to be taken involves a necessary balancing in weighing the reason and impact of the premature end to cross-examination which affects the accused’s fair trial rights, and whether that impact can be ameliorated: Goodstoney at para 93 citing Hart. More specifically, as stated in Yu at para 9:

It is settled law that no breach of fundamental fairness is deemed to have occurred where cross-examination of a material Crown witness has been truncated or has indeed been lost. Where the effect of the cross-examination has been limited but not entirely negated, any inconsistencies between the evidence in chief and prior statements that could have been led from other sources and put before the jury may be sufficient.

[27]           As was the case in Yu, the jury had seen the complainant testify in examination-in-chief, and some cross-examination had occurred with the jury hearing firsthand from the complainant that she had lied to police and at the preliminary inquiry. That testimony could be evaluated, as well as her failure to return to complete cross-examination in assessing her credibility and reliability. Further, the availability of “other sources” of evidence was considered by the parties in this matter, particularly by defence counsel who selected relevant excerpts of the complainant’s police statement and preliminary inquiry to be put before the jury, as it related to both establishing inconsistences and pointing to the complainant’s statement that she hit her head on the coffee table after falling, which he sought to rely on for its truth.

[28]           Not only did the Crown advise it was not asking for a witness warrant, neither did defence counsel who otherwise did not apply for a mistrial, stay of proceedings, or to strike the complainant’s testimony. Rather, counsel conceded on the record that per Hart, the matter could proceed with steps taken to ameliorate the lack of full cross-examination, including by putting other relevant sources of evidence from the complainant before the jury, and giving strict warnings in the charge about the weight of the complainant’s evidence given her decision not to reattend court. While counsel’s position is not determinative and it remains the responsibility of the trial judge to carefully weigh the circumstances in a given matter, the lack of objection to this trial’s continuation was significant and, in our view, correct.

[30]           While the appellant seems to argue that the burden of proof was misplaced in this case, and that the trial judge did not deal with “the reason for the unavailability of the witness”, we see no proof of any such errors. The trial judge gave detailed reasons under each of the Hart factors, including her consideration that the premature end of the complainant’s cross-examination was because “J.S. did not come back to court... contrary to the expressed direction” to do so. There was no error in the trial judge’s finding that the complainant’s failure to reattend must be viewed in the context of a child witness who she reasonably found had a “troubled life” and had “struggled through her evidence, in particular when she had to describe the details of the sexual contact she said the accused had with her”. As the trial judge correctly found, the case law has moved away from the notion of “fault” when looking at the evidence of a young witness. As stated in Hart at paras 59, 62:

Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases. . .

. . . [F]lexibility and common sense must be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. It seems to me to be wrong to base the analysis on whether the unresponsiveness is the "fault" of the witness, as some of the older authorities do. While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to a witness of the age and sophistication of the child in question. In short, the assessment must be made with the flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules.

See also R v TH, 2017 ONCA 485 at paras 43-44, 352 CCC (3d) 47 [TH].

 

[31]           As in TH, the trial judge sought to properly balance the fair trial interests of the appellant and the difficult situation of this young complainant. In so doing, she did not unduly focus on the trauma of the sexual allegations or defence counsel’s cross-examination, but rather considered the complainant’s undeniably difficult background, and the entire context of how these charges came to be laid, which included that the police did not seek out medical attention or other support after her disclosure. The trial judge’s decision to proceed with the admission of excerpts of the complainant’s police statement and preliminary inquiry testimony rather than a witness warrant, stuck an appropriate “balance between the accused’s right to make full answer and defence and the societal need to protect the most vulnerable of complainants, children”, and is owed significant deference.

[34]           As to any remaining argument related to the trial judge’s instructions to the jury as to how the prior statements of the complainant could be used, both for inconsistencies and for the truth of their contents, again defence counsel had requested this instruction at trial, and raised no concerns following the charge. While again, counsel’s trial position is not determinative, it was a request made for a specific tactical purpose related to the complainant’s statement about hitting her head. Beyond this however, and as Hart deals with extensively, there are many exceptions to the hearsay rule, many of which exist to admit evidence as truth even though cross-examination of the statement maker is not possible. One unifying element in most of these exceptions is one of “necessity” due to the unavailability of the witness, including the ability to cross-examine. As Hart states at paras 46-48, under the principled approach to the hearsay rule, necessity is to be given a flexible definition, and references the case of R v KGB, 1993 CanLII 116 (SCC), [1993] 1 SCR 740, 73 CCC (3d) 257, where the “admission of a witness’ prior inconsistent statement as truth of its contents was found to be ‘necessary’ even though the witness was available and testifying.” Here, all parties agreed the admission of the complainant’s previous evidence was necessary to preserve the appellant’s fair trial rights.

[35]           The trial judge otherwise appropriately interwove various cautions about the complainant’s evidence into her instructions to the jury about how to assess credibility and reliability. She was clear that as the complainant had admitted to not telling the truth, her evidence was to be approached “with caution”. Any argument that the jury charge did not assist in ameliorating the loss of full cross-examination or amplified the prejudice to the appellant, is without merit.

Comment un juge peut gérer l'incapacité d'une victime à poursuivre le contre-interrogatoire qu'elle subit

R. v. Hart, 1999 NSCA 45

Lien vers la décision

 CONCLUSIONS:

It is now useful to synthesize the principles emerging from the common law and Charter authorities to be applied when the accused claims that the trial has become unfair or to have been denied the right to make full answer and defence because a child witness is unresponsive during portions of the cross-examination.  The starting point is that there is no short, dispositive “test” for whether these rights have been denied or to determine the proper response.  These are matters for the discretion of the trial judge taking account of all relevant considerations.

 

In considering whether the trial is unfair, or the right to make full answer and defence has been limited, the factors which the trial judge should consider may be grouped under three main headings.  Without attempting to be exhaustive or definitive, it may be helpful to outline briefly some of the relevant matters under those headings.

 

A.  The reason for the unresponsiveness:

 

The reason for the unresponsiveness is somewhat analogous to the necessity criterion for the admissibility of hearsay evidence.  Before evidence is admitted without a full opportunity to cross-examine, there should be a valid and important reason for doing so.  This suggests that if the unresponsiveness could have been avoided by reasonable action or if  evidence of the same value is or could have been available in some other way and within a reasonable time, the evidence generally should not be admitted without full cross-examination.

 

The opportunity to cross-examine includes, at a minimum, the right to have answers that are responsive to the questions asked.  The court must carefully consider any conduct of the witness or the party calling the witness which has the effect of frustrating the opportunity to cross-examine.  In the case of child witnesses, the court may consider whether the unresponsiveness results from the nature of the process and whether appropriate steps have been taken to reduce the embarrassment and discomfort of testifying.

 

In this case, none of the procedures available under the Criminal Code to reduce the difficulty of testifying for children was used.  Apparently video-taping was not readily available to the police.  The record indicates that there was some discussion of the use of a screen at a pre-trial conference, but one was not used. No support person, as permitted by s. 486(1.2) of the Code, sat with the witness.

 

These issues were not explored at trial or on appeal and I will, therefore, not address them further for the purposes of this case.  Moreover, in this case, there is no indication in the record that the witness was attempting to thwart full cross-examination.  The witness was reluctant and frequently unresponsive during both examination-in-chief and cross-examination.  I will say, however, that where a child witness is unable or unwilling to testify during cross-examination, the trial judge is entitled to consider, within the limits of the evidence before the court, whether the failure to take steps to reduce the difficulty of testifying has contributed to the unresponsiveness.  If it has, this will be a factor tending toward a finding that the trial has become unfair, at least if the difficulty that arises was reasonably foreseeable.

 

Similarly, there may be steps available to cross-examining counsel to help elicit answers.  These include requesting the trial judge to direct the witness to answer or requesting an inquiry as to why the witness is not responding.  The trial judge may be justly reluctant to take such steps of his or her own motion because counsel’s approach may result from a tactical decision.  Where no request for the judge’s intervention is made by counsel, this is a factor tending toward a finding that the trial has not become unfair as a result of the unresponsiveness. In this case, no such steps were requested by defence counsel and, in my opinion, the trial judge should not be faulted for failing to intervene more forcefully absent such a request.

 

The manner of questioning may contribute to the difficulty.  If questions are not posed in a clear and age-appropriate manner, the unresponsiveness may be attributable, in whole or in part, to the manner of questioning.  If the trial judge concludes that this is the case, it will be a factor tending against a finding that the unresponsiveness has rendered the trial unfair.  In this case, some of the questions in cross-examination were not clear or age-appropriate although there were many other questions not responded to which were both clear and age appropriate.

 

B.  The Impact of the Unresponsiveness:

The central considerations for the trial judge under this heading are the importance of the evidence to the case and whether there is a satisfactory basis, notwithstanding the unresponsiveness, upon which the trier of fact can evaluate the evidence.

 

The trial judge should consider the importance of the evidence to the case.  The more important the evidence to the prosecution’s case, the more reluctant the trial judge should be to allow it to be given without full cross-examination.

 

The trial judge should also consider what other bases there may be to evaluate the evidence of the witness.  The presence of the witness, which allows the jury to see and hear the witness,  will generally be an important example.  The opportunity of cross-examining counsel to put prior inconsistent statements before the trier of fact is another.  The extent to which there is other evidence in the case which assists the evaluation may be a third consideration.

 

The trial judge should also consider the extent and effect of the cross-examination that has been conducted as well as counsel’s submissions on any areas of cross-examination that were not pursued because of the unresponsiveness.  The onus is on cross-examining counsel to place those submissions before the trial judge.

 

The trial judge should also make a common sense and realistic assessment of the likely impact that the cross-examination would have  had if it had been possible to continue.  While this is a difficult question, involving, to some extent,  speculation about what a witness would or would not have said, the trial judge should do his or her best to make this assessment in light of the particular witness and all the other circumstances of the case. This assessment should be made with due regard to the difficulty of the task and with great respect for the importance of the opportunity to cross-examine; in short, the judge should be slow to conclude that further cross-examination would have been ineffectual.

 

In making this assessment, the trial judge should consider the special nature of cross-examination of a child.  Where the witness is unresponsive on the stand, it may be appropriate to compare the effect of the unresponsiveness with a situation in which the witness simply professes not to remember or not to know. The greater confidence that the judge has that further cross-examination would have been ineffectual, the less inclined the judge should be to find that the trial is unfair.          In this case, the witness was a key witness for the prosecution and the case turned primarily on the assessment of his credibility.  The jury had the opportunity to observe him while testifying and to assess the impact of his unresponsiveness on his credibility.  There was other evidence in the case which the jury may have found helpful in considering this question.  Evidence of prior inconsistent statements was placed before the jury and the witness’s unresponsiveness when faced with these was not in any way prejudicial to the defence.  It was not suggested by defence counsel that there were any areas other than those appearing in the record which were left unexplored because of the unresponsiveness.

 

C.  Possibilities of Ameliorative Action:

Before concluding that the trial has become unfair or whether there has been a denial of the right to full answer and defence, the trial judge should consider whether the limitation on cross-examination can be remedied or at least ameliorated.

 

For example, the trial judge should consider whether the difficulty with the witness is likely to be permanent.  If there is a reasonable prospect of the witness becoming responsive in a reasonable period of time, consideration should be given to postponement of the trial, having due regard, of course, to the accused’s right to and interest in a timely trial.  If the witness is not crucial to the Crown’s case in the sense that the Crown would proceed even without the witness’s evidence, consideration may be given to striking the witness’s evidence or, if necessary,  declaring a mistrial and proceeding afresh without the witness.

Le défaut d'aborder un sujet pertinent en contre-interrogatoire peut être pris en considération par le juge dans l'appréciation de la crédibilité de ce témoin

R. v. Paris, 2000 CanLII 17031 (ON CA)

Lien vers la décision

[22]         Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party.  The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case:  R. v. Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.);  R. v. H. (L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.);  R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.);  R. v. K.(O.G.) (1994), 1994 CanLII 8742 (BC CA), 28 C.R. (4th) 129 at 131 (B.C. C.A.);  R. v. Letourneau and Tremblay (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 at 522-23 (B.C. C.A.); R. v. McNeill, supra, at 565;  A. Mewett, Witnesses, 2d ed., looseleaf (Toronto:  Carswell, 1999) at 2-32 to 2-34.

[23]         The potential relevance to the credibility of an accused’s testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors.  These include the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence.  In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross-examination.  In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case.  In such situations, the failure to cross-examine will have no significance in the assessment of the accused’s credibility.  In other circumstances, however, where a central feature of the complainant’s evidence is left untouched in cross-examination or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused’s credibility.

[24]         The connection between the failure to cross-examine a complainant on significant matters and the accused’s credibility seems to me to be straightforward.  In discussing the “costs” of the failure to cross-examine, Professor Mewett puts it this way in his text, supra at 2-32:

… The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witness whose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her side of the story.  As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it is intended to contradict that witness’s evidence. …  The trier of fact may well wonder why there was no cross-examination, and take that into account in determining what weight to give to the contradictory testimony.

L'objectif du contre-interrogatoire et des devoirs qui en découlent

R. v. O.G.K., 1994 CanLII 8742 (BC CA)

Lien vers la décision

[13]           In McWilliams, Canadian Criminal Evidence, (Agincourt, Ontario: Canada Law Book Ltd., 1974), we find this [at pp. 620-621]:

3. Duty to Cross-examine

In R. v. Foxton (1920), 1920 CanLII 524 (ON SC), 34 C.C.C. 9 (Ont. H.C.J.), Middleton, J., said at pp. 10-11:

"The House of Lords in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, laid down the rule that there is a duty to cross-examine, drawing the attention of the witness to any particular point upon which it is intended to suggest that he is not speaking the truth, so that he may have an opportunity of making any explanation open to him, unless it is perfectly clear from the surrounding circumstances that it is intended to im­peach his story. A fortiori, I think, it is the duty of counsel to cross-examine where it is intended to suggest that a witness is perverting the truth by the use of a word which is capable of an ambiguous meaning, in such a way as to mislead in the administration of justice."

See also R. v. Moke (1917), 1917 CanLII 426 (AB CA), 28 C.C.C. 296 (Alta. C.A.) at 305; R. v. Nepp (1927), 1927 CanLII 513 (MB CA), 48 C.C.C. 275 (Man. C.A.); R. ex rel. Taylor v. Vanmeer (1950), 1950 CanLII 393 (ON SC), 97 C.C.C. 241 (Ont. Co. Ct.); R. v. Hart (1932), 23 Cr. App. R. 202; R. v. Mandzuk (1945), 1945 CanLII 280 (BC CA), 85 C.C.C. 158 (B.C.C.A.); R. v. Miller (1959), 1959 CanLII 466 (BC CA), 125 C.C.C. 8 (B.C.C.A.). However, Cross, at p. 212 cites R. v. Jawke, [1957] 2 S.A.L.R. 182, as emphasizing the absence of any absolute rule.

In R. v. Dyck, 1969 CanLII 988 (BC CA), [1970] 2 C.C.C. 283 (B.C.C.A.), the rule was extended to a questionable degree in that the failure to cross-examine the complainant on the substance of an allegation rendered the calling of contradictory evidence on that point by the defence wrong. If that meant that the defence would be precluded from calling such contradictory evidence, it is submitted that this goes far. It would be better to penalize the defence by allowing the prosecution a freer right to rebuttal in such a case.

[14]           Halsbury [Halsbury's Laws of England], also citing Browne v. Dunn, supra [(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.)], puts the matter somewhat differently [4th ed., vol. 17, para. 278]:

278. Purpose of cross-examination. Cross-examination is directed to (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. Where the court is to be asked to disbelieve a witness, the witness should be cross-examined; and failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence.

[20]           What underlies these expressions of a duty to cross-examine and the effect of a failure to cross-examine is the fundamental proposition that a court of law must treat all persons who come before it in whatever capacity fairly. It is not fair to a witness to adduce evidence which casts doubt upon his veracity when he has not been given an opportunity to deal with that evidence. There is another relevant principle: if justice according to law is to be administered efficiently, which includes expeditiously, a trial must proceed in an orderly manner.

Le défaut d'aborder certains sujets en contre-interrogatoire peut affecter la crédibilité du témoin et de sa version

R. c. Robert, 2014 QCCQ 4415

Lien vers la décision

[32]        Les Tribunaux supérieurs ont déjà considéré à plusieurs reprises que ce défaut de contre-interrogatoire peut affecter la crédibilité du témoin et de sa version.  La Cour d'appel d'Ontario s'exprime notamment comme suit:  R. c. Paris[5].

[22]         Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party.  The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case:  R. v. Palmer 1979 CanLII 8 (SCC), (1979), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.);  R. v. H. (L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.);  R. v. Verney reflex, (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.);  R. v. K.(O.G.) 1994 CanLII 8742 (BC CA), (1994), 28 C.R. (4^th) 129 at 131 (B.C. C.A.);  R. v. Letourneau and Tremblay 1994 CanLII 445 (BC CA), (1994), 87 C.C.C. (3d) 481 at 522-23 (B.C. C.A.); R. v. McNeill, supra, at 565;  A. Mewett, Witnesses, 2d ed., looseleaf (Toronto:  Carswell, 1999) at 2-32 to 2-34.

[24]         The connection between the failure to cross-examine a complainant on significant matters and the accused’s credibility seems to me to be straightforward.  In discussing the “costs” of the failure to cross-examine, Professor Mewett puts it this way in his text, supra at 2-32:

… The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witness whose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her side of the story.  As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it is intended to contradict that witness’s evidence. …  The trier of fact may well wonder why there was no cross-examination, and take that into account in determining what weight to give to the contradictory testimony.

[33]        Voir aussi R. c. Dexter[6], et R. c. Drydgen[7], etc.

Il peut y avoir complot même si outre l'accusé, aucun autre conspirateur n'est connu / Revue des règles spécifiques au complot

R. v. Root, 2008 ONCA 869

Lien vers la décision

[65]         It is elementary that the gist of the preliminary crime of conspiracy is the agreement.  The actus reus of the offence is the fact of the agreement.  Papalia v. R.; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at p. 276.  In conspiracy cases, a distinction exists between an intention to agree, on the one hand, and an agreement, on the other. On its own, an intention to agree is not sufficient to establish the actus reus of conspiracy.  R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at pp. 668-9.

[66]         For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt:

i.         an intention to agree;

ii.         completion of the agreement; and

iii.      a common (unlawful) design

United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 86 at p. 511.  Further, there must exist an intention to put the common (unlawful) design into effect.  Dynar, at para. 86; O’Brien at p. 668.

[67]         In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy.  Papalia, at pp. 276-277; O’Brien at p. 668; Dynar at para. 87; R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301 at p. 316.  Said somewhat differently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy – the agreement.  Douglas at p. 40; David Omerod, ed., Smith and Hogan Criminal Law, 11^th ed. (New York: Oxford University Press, 2005) at p. 374.

[68]         It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another.  Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-6.  Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed 1987 CanLII 5 (SCC), 1987 39 C.C.C. (3d) 576 (S.C.C.).

[69]         Where, as here, an indictment alleges that named persons conspired together and with other unknown persons, proof of participation of all named conspirators is not essential.  R. v. Paterson (1985), 1985 CanLII 167 (ON CA), 44 C.R. (3d) 150 (Ont. C.A.) at pp. 156-7.  Further, where the evidence establishes the conspiracy alleged between a named person and a person or persons unknown, the fact that the evidence fails to establish another named person’s complicity does not entitle the first named to an acquittal.  Paterson at p. 156.

[70]         The fact that an agreement to commit a crime is conditional on the occurrence or non-occurrence of some event does not necessarily mean that there is no unlawful agreement.  However, negotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do so something if it is possible or propitious to do so.  R. v. Mills (1962), 47 Cr. App. R. 49, at pp. 54-55 (C.C.A.); R. v. Saik, [2007] 1 A.C. 18, at para. 5 (H.L.); Smith and Hogan, at pp. 363 and 371; Glanville Williams, Textbook of Criminal Law, 2^nd ed. (London: Steven & Sons, Ltd., 1983) at p. 351; and R. v. Walker, [1962] Crim. L. R. 458 (C.C.A.). Indeed every agreement about future conduct is hedged about with conditions, for example, to burgle premises if the owner is not home, or to steal something if anything of value can be found. But in each case, there is nonetheless an unlawful agreement despite conditions attached to its execution.

[71]         Conspiracy, like attempt, is a crime of intention.  Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence, for example to possess or launder the proceeds of crime.  The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of the conspiracy. The goal of the agreement, the commission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy.  Dynar at para. 103. Where the goal of a conspiracy involves the commission of a substantive offence of which knowledge of certain circumstances is an essential element, the mental element is belief. The subjective state of mind of anyone who conspires with others to launder money is the belief that the money has illegitimate origins.  Dynar at para. 108.

[72]         Among the preliminary or inchoate crimes, conspiracy, although requiring two or more genuine participants, is more “preliminary” than an attempt: Dynar at para. 87. Conspiracy is also a continuing offence.