R. v. Evans, 2019 ONCA 715
[97] Despite their differences about the result their application should yield, the parties are not at odds about the principles that control our response to this ground of appeal. Some of those principles have to do with the permissible scope of cross-examination, others with the limits on judicial intervention in counsel's conduct at the trial.
[98] The right of an accused to cross-examine witnesses called by the Crown, whether of fact or of opinion, without significant and unwarranted constraint is an essential component of the common law and the constitutional right to make full answer and defence: R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, at para. 41, citing R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at p. 608 S.C.R. Cross-examination is of essential importance in determining whether a witness is credible and his or her evidence is reliable: Lyttle, at para. 42, citing R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. No. 135, at p. 663 S.C.R. And, in some circumstances, it may be the only way to get at the truth: R. v. V. (R.), [2019] S.C.J. No. 41, 2019 SCC 41, at para. 39.
[99] It follows ineluctably from what I have said that not only must the right of cross-examination be jealously protected, but also that it must be broadly construed: Lyttle, at para. 44. On the other hand, the right must not be abused. Cross-examining counsel are bound by the rules of relevance. They are "barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value": Lyttle, at para. 44.
[100] Cross-examination must conform to the general principles of the law of evidence. Questions put, in addition to having a good faith basis, must elicit evidence that is relevant, material and admissible under the adjective law of evidence. The popular courthouse folklore "But this is cross-examination" is simply that. It is not a lifetime pass around and through the thicket of the fundamental principles of the law of evidence: Osolin, at pp. 665-66 S.C.R., citing R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, [1983] S.C.J. No. 72, at p. 201 S.C.R.
[101] Relevance and probative value are determined in cross-examination, as they are in examination-in-chief and in re-examination, in the context of each case and with respect to the purpose for which the evidence is being tendered: Osolin, at para. 162. [page601]
[102] The proper procedure to be followed in examining, or cross-examining, an expert witness on other expert opinions found in papers or books is to first ask the witness whether he or she knows the work. If the witness answers "no", or denies the work's authority, the matter ends there. Examining counsel cannot read from the work, for to permit counsel to do so would be to countenance introduction of the work as evidence, thus contravening both the hearsay and opinion rules. If the answer is yes, and the witness acknowledges the work's authority, then the witness has confirmed it by his or her testimony. Counsel may then read parts of the admittedly authoritative work to the witness. To the extent, but only to the extent, that the witness confirms their accuracy, the passages become evidence for the trier of fact to consider: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at p. 251 S.C.R. And if the witness disagrees with the authoritative work, his or her explanation may be considered in assessing the credibility of his or her expert opinion.
[103] The authorities make it clear that the right of cross-examination is not absolute. But it is equally so for the limitations on that right. Trial judges enjoy, as in connection with other aspects of the trial, a broad discretion to ensure fairness and to see that justice is not only done, but also that it is seen to be done. As a result, on some occasions at least, a trial judge may think it right to relax the requirement of relevance or a rule of admissibility: Lyttle, at para. 45; see, also, R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.), at para. 80, leave to appeal to S.C.C. refused R. v. Clancey, [2002] S.C.C.A. No. 29.
[104] As a necessary incident of the trial management power, a trial judge has the authority to control the conduct of cross-examination. Interventions must be exercised with caution so as to leave unfettered the right of the accused, through his counsel, to subject any witness' testimony to the test of cross-examination. We permit interventions to disallow questions ruled improper, for example, because they invite the introduction of hearsay or other inadmissible evidence, or because the answers are irrelevant or immaterial, or in order to protect the witness from repetitious questioning or unwarranted harassment: R. v. Bradbury, 1973 CanLII 1442 (ON CA), [1973] O.J. No. 859, 14 C.C.C. (2d) 139 (C.A.), at pp. 140-41 C.C.C. The ultimate question to be answered is whether, as a result of the number and nature of interventions, the accused might reasonably consider that he had not had a fair trial, or whether a reasonably minded person, who had been present throughout the trial, would consider that the accused had not had a fair trial: R. v. Hungwe [page602] (2018), 142 O.R. (3d) 22, [2018] O.J. No. 2618, 2018 ONCA 456, 361 C.C.C. (3d) 534, at para. 43, citing R. v. Valley, 1986 CanLII 4609 (ON CA), [1986] O.J. No. 77, 26 C.C.C. (3d) 207 (C.A.), at p. 232 C.C.C., leave to appeal to S.C.C. refused [1986] 1 S.C.R. xiii, [1986] S.C.C.A. No. 298.
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