R. v. J.B., 2019 ONCA 591
[29] To begin, like any witness who testifies, an accused may be cross-examined on matters that may impair his credibility: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441, leave to appeal refused, [1974] S.C.R. viii.
[30] As is the case with an ordinary witness, an accused who testifies may be cross-examined on prior out-of-court statements alleged to be inconsistent with his or her in-court testimony about the same subject-matter. But where the out-of-court statement on which the accused is cross-examined is one made to a person in authority, the Crown must ensure that any applicable admissibility rules have been satisfied, including the common law requirement of voluntariness: R. v. Fischer, 2005 BCCA 265, 197 C.C.C. (3d) 136, at para. 41, leave to appeal refused, [2005] S.C.C.A. No. 308; R. v. Groves, 2013 BCCA 446, 301 C.C.C. (3d) 430, at paras. 33, 42.
[31] On the other hand, unlike an ordinary witness, whose prior inconsistent statement only becomes substantive evidence if the witness adopts it as true by words, action, conduct or demeanour while testifying, an accused witness’ prior inconsistent statement may be used as substantive evidence by the trier of fact for two purposes. First, as with an ordinary witness, the prior inconsistent statement is relevant to the credibility of the accused as a witness. Second, and unlike an ordinary witness, the prior inconsistent statement of an accused who testifies is admissible as substantive evidence as an admission even without adoption: Groves, at paras. 42-44; R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272, at pp. 277-78.
[32] Witnesses in criminal proceedings may be cross-examined on prior statements inconsistent with their trial testimony in a variety of different circumstances. A party’s own witness, for example, under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”). Or an opposite party’s witness under ss. 10(1) or 11 of the CEA. As a general rule, in this province at least, where the purpose of the cross-examination is testimonial impeachment, the prior inconsistent statement, which has no intrinsic value as evidence, is not filed as a trial exhibit: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 53-54; R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 50. Thus, it does not go to the jury room with other exhibits for jury review during deliberations.
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