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

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

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[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.