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)

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[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.