Quels sont les objectifs et les stratégies efficaces en lien avec le contre-interrogatoire?

R v Sylvain, 2014 ABCA 153

Lien vers la décision

[95]           The purpose of cross-examination is to explore the evidence of the witness, exposing weaknesses, biases, and inaccuracies, and thereby assist in the truth finding process. It has been said that cross-examination is more an art than a science, and the selection of appropriate questions and topics for cross-examination is one of the key skills of legal advocacy: E.F.B. Johnston, Q.C., The Art of Cross Examination, [1936] 2 DLR 673.  

[96]           Counsel have a wide discretion in the content of their cross-examination: R. v Lyttle, 2004 SCC 5 at paras. 41-5, [2004] 1 SCR 193. When the defence amounts to a straight denial of the charge or some necessary element of the charge, there is a school of thought that it is counterproductive to cross-examine extensively, thereby allowing the witness just to repeat his denial over and over. As Johnston notes at p. 675:

. . . One form of cross examination which is apparent to all of us as being very ineffective, is the going over of the ground in chief. I have seen very able counsel (and without being able at all, I have done it myself, to my sorrow) to take the witness, the plaintiff or the defendant as the case may be, and follow him from point to point, going over his case as developed in chief, with what result? Invariably emphasizing and giving point to the story of the witness.

This concept is number eight in I. Younger’s “A Letter in Which Cicero Lays Down the 10 Commandments of Cross-Examination” (1977) 3.2 Litigation 18 at p. 20:

 

8.         Do not ask the witness to repeat the testimony he gave on direct examination. . . . when a lawyer asks a witness on cross-examination merely to repeat his direct testimony, all he accomplishes is elevation of the witness’ credibility. What had been a perhaps becomes a doubtless. . . .

The strategy of avoiding the creation of opportunities to just repeat a straight denial would apply to defences like alibi, consent, identity (“wasn’t me”) and the flat-out denial (“I didn’t do it”). In those situations, where the accused testifies and has an opportunity to say in chief what he wants to say about his position, there is no obligation on the Crown to cross-examine on those subjects: Palmer v The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759 at pp. 780-2. Since the accused cannot be surprised by a bare challenge to his bare denial, the rule in Browne v Dunn (1893), 6 R 67 (HL) is not engaged: I.I. at para. 10.