Le ré-interrogatoire vu par la Cour d'appel de l'Ontario

R. v. A.J.D., 2022 ONCA 867

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[63]      I now address the appellant’s specific arguments on this issue. The law governing re-examination is well-settled and a full answer to those arguments: see R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at p. 644, and R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 148, leave to appeal refused, [2012] S.C.C.A. No. 8.

[64]      At para. 148 of Candir, Watt J.A., writing for this court, set out the following principles which govern re-examination:

1. The permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness was cross-examined.

2.  The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case.

3.  The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination-in-chief of the witness.

[65]      The appellant’s arguments must be rejected in light of these principles. The scope of re-examination is linked to its purpose and the subject-matter on which the witness was cross-examined. The Crown raised no issue about the appellant’s intellectual capacity in cross-examination. The subject-matter of the cross-examination was the appellant’s inconsistent versions of (among other things) what happened on the last evening that he slept at C.S.’s home. The questions that the Crown put to the appellant in cross-examination were for the purpose of testing the appellant’s credibility. Credibility is not a “subject-matter” on which the appellant was examined.

[66]      Defence counsel used re-examination to raise, for the first time, the subject of the appellant’s intellectual disability. If defence counsel wanted the court to consider that matter, he could have introduced it in the appellant’s direct examination. He did not have the right to raise that subject, for the first time, in re-examination.   

[67]      Further, there is nothing in the appellant’s contention that the trial judge pre-judged the potential impact of the re-examination when determining the appellant’s credibility. After the Crown objected to the re-examination, both counsel made brief submissions on the matter. The trial judge told counsel the presence of an intellectual disability was a matter he would have expected to have been introduced in examination-in-chief. He then permitted re-examination to continue, after explaining he would hear submissions on what use, if any, he should make of the re-examination. The fact the trial judge advised counsel of his concern prior to hearing the balance of the re-examination does not mean the trial judge pre-judged the re-examination. The trial judge was simply indicating his concern so that counsel could proceed accordingly, both in the conduct of the re-examination and in the preparation of their submissions on the use to be made of it.   

[68]      The trial judge had the discretion to grant defence counsel leave to introduce the new subject of the appellant’s intellectual disability on re-examination (Candir, at para. 148). He exercised that discretion and allowed the re-examination. However, the trial judge also had the discretion to decide what to do with the re-examination. He exercised that discretion reasonably – as his reasons show – and refused to consider the re-examination. There is no basis for appellate intervention with that exercise of his discretion.