R. v. Situ, 2005 ABCA 275
[8] In R. v. Nicholson (1998), 223 A.R. 82, 1998 ABCA 290, this Court concluded, at para. 19, that improper cross-examination by Crown counsel of his own witness may result in a new trial where credibility findings by the judge or jury would have been influenced by the cross-examination, causing prejudice to the accused:
Crown counsel is not entitled to ask leading questions of his own witness, respecting matters in issue in the trial, and is not entitled to cross-examine the witness or seek to impeach the witness, unless permitted to do so by the Court, following an application under s. 9 of the Canada Evidence Act, or an application to declare the witness hostile. Generally, the law is that responses in answer to leading questions ought to be given little weight. (See R. v. Williams (1982), 1982 CanLII 3729 (ON CA), 66 C.C.C. (2d) 234 (Ont. C.A.)). But an improper attempt by the Crown to impeach his own witness, especially a witness related to the accused, can result in prejudice to the accused and lead to a new trial. (See R. v. Milgaard (1971), 1971 CanLII 792 (SK CA), 2 C.C.C. (2d) 206.)
[9] The Ontario Court of Appeal reached a similar conclusion in R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417. Charron J.A. (as she then was), giving the judgment for the Court, summarized the law as follows at para. 9:
A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non‑contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1 at pp. 211‑12 S.C.R., p. 22 C.C.C..
[10] After citing excerpts from the examination of the witness and the exchange between counsel and the court, Charron J.A. continued at para. 13:
In my view, Crown counsel's questions to Beaudry were clearly suggestive of the answers. Indeed, the entire examination‑in‑chief reads more like the cross‑examination of a witness. This was highly improper, particularly in these circumstances where Beaudry, as the trial judge himself stated in his reasons, was "the primary Crown witness" and the questions concerned crucial and contentious matters.
[12] We have reviewed the transcript of the examination of this witness by Crown counsel at trial and conclude that Crown counsel conducted an improper cross-examination of his own witness, and impeached the witness. Undoubtedly, Dakota Cree was a difficult witness. What occurred at trial must be examined with that understanding. At first, Crown counsel properly used portions of the transcript of Cree’s evidence at the preliminary inquiry to refresh the witness’ memory. Gradually, the questioning became more persistent, and Crown counsel challenged the witness, by putting the transcript to him, by persistently asking leading questions that suggested answers, and finally, by reminding him that he could be liable to a perjury prosecution and an increased jail sentence. In doing so, he crossed the line from controlled examination of a witness into cross-examination and impeachment.
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