R. v. Miller, 1998 CanLII 5115 (ON CA)
[17] In Gonzague, one of the grounds of appeal was the trial judge’s refusal to permit defence to cross-examine a crown witness with respect to fifteen pending charges of fraud. The court held that this was an error (at pp. 510‑11):
Clearly, the fact that a person is charged with an offence cannot degrade his character or impair his credibility, but an ordinary witness, unlike an accused, may be cross-examined with respect to misconduct on unrelated matters which has not resulted in a conviction: see R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 at pp. 443-4, 6 O.R. (2d) 103. Consequently, counsel was entitled to cross-examine the witness, Charbonneau, on the facts underlying the 15 charges of fraud in order to impeach his credibility.
[18] Crown counsel takes the position that generally, a party is entitled to cross-examine a non-accused witness as to discreditable conduct and associations, where that misconduct has resulted in a criminal conviction. However, the particulars of the conviction (i.e. the name of the offence, the date and place of conviction, and the sentence imposed) will usually suffice to convey the relevant misconduct to the trier of fact. The Crown therefore submits that there is no general right to cross-examine a witness on the facts underlying a criminal conviction. It is argued, rather, that the defence is limited under s. 12 of the Canada Evidence Act to question the witness on the particulars of the conviction only.
[19] In my view, Crown counsel’s position is not supported by either the wording of s. 12 of the Canada Evidence Act or by the relevant case law. It is my view that the trial judge erred in limiting the scope of the cross-examination as he did.
[20] It should be noted firstly that s. 12 of the Canada Evidence Act is permissive in its terms and not restrictive. It reads as follows:
12. (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.
(2) A conviction may be proved by producing
(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable upon summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if on indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.
Hence, s. 12 allows for the proof of previous convictions even where such fact would be collateral and inadmissible under the general rules of evidence.
[21] In R. v. Davison, DeRosie and MacArthur, this court considered s.12 in the case of an accused witness and concluded (at p.442) that there were limitations imposed “with respect to the cross-examination of an accused which do not apply in the case of an ordinary witness.” [Emphasis added.] The court expressed the limitation in the case of an accused person as follows (at 443):
The use that may be made of prior convictions allowed to be proved by the provisions of s.12 of the Canada Evidence Act is confined to the issue of credibility unless the acts constituting the basis of such convictions are also admissible under the doctrine of similar acts or otherwise to show that the accused is guilty of the offence with which he is charged.
The court then expressly stated (at 443) that this principle was not intended to “cast doubt on the well-established principle that an ordinary witness may be cross-examined with respect to discreditable conduct and associations, unrelated to the subject-matter of his testimony, as a ground for disbelieving his evidence (Phipson on Evidence, 11th ed. (1970), at p. 654), but was rather ... a principle peculiarly applicable to an accused.”[2]
[22] In R. v. Gassyt and Markowitz (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 this court recently drew the distinction between cross-examination of a witness on the existence of an outstanding charge and cross-examination on the underlying facts of the charge. Cross-examination on the fact that a charge is outstanding will not be permitted without a proper foundation being laid to establish its relevance. However, the court noted (at p. 560) that "Cross-examination on any facts underlying an outstanding charge is a different matter." The court reiterated the principle set out in earlier cases in these words (also at 560):
In any case, an ordinary witness, unlike an accused, may be cross-examined on the underlying facts to the extent that these facts may be relevant to the witness’s credibility or to another issue in the trial.
[23] In my view, there is no reason to limit the scope of the cross-examination of a non-accused witness where the conduct has resulted in a criminal conviction. On the contrary, the fact that the conduct has resulted in a criminal conviction will usually enhance the probative value of the cross-examination.
[24] It is clear, of course, that the right to cross-examine a witness on the underlying facts of a conviction is subject to the trial judge’s general discretion. It must be limited within the bounds of relevance and propriety.[3] In this case, however, defence counsel was not allowed to cross-examine on any of the underlying facts of the convictions.
[25] Crown counsel argues that the cross-examination in this case was nonetheless sufficient to convey to the jury Ms. Lackie’s prior discreditable conduct as it related to her credibility. I am unable to agree. Given the importance of Ms. Lackie’s testimony against the appellant and the nature of some of her prior convictions, the result quite possibly may have been different had the cross-examination been permitted. I would therefore give effect to this ground of appeal.
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