Les limites au contre-interrogatoire

R. v. Burgar, 2010 ABCA 318

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[10]           We cannot agree. In the first place, a party to any litigation, especially an accused, can always use cross-examination to attack the credibility of an opposing witness. The topic of the cross-examination need not be germane to the merits of the litigation if it is relevant to credibility; there is no bar to cross-examination on collateral topics. It would occupy much space to recite the authorities on that, which are listed in 2 Stevenson & Côté, Civil Procedure Encyclopedia, pp. 40-8 and 40-9 (2003).

 

[11]           There are some restrictions on cross-examination of an accused who testifies, especially questions on character evidence, but they do not apply to defence cross-examination of prosecution witnesses: R. v. Arcangioli 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, 162 N.R. 280 (paras. 26-27).

 

[12]           For a great many years, cross-examination on a witness’ previous convictions has been proper. The law allows the cross-examination to go beyond the bare face of a conviction and to investigate the facts of the witness’ previous bad conduct. See R. v. Cullen (1989) 1989 CanLII 7241 (ON CA), 36 O.A.C. 195, 52 C.C.C. (3d) 459 (C.A.); cf. R. v. Titus 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259, 2 C.C.C. (3d) 321.

 

[13]           We cannot think of any logical or principled reason to bar such cross-examination. Nor was this a case where defence counsel at trial or on appeal could not explain the point of the proposed cross-examination. They explained it well both times.

 

[14]           Falsely accusing an innocent person of one’s own crimes would be a very serious form of lying, and could readily dissolve credibility. If made out here, it would have been most relevant. Denial of cross-examination on that topic is a serious error: Pilon v. R. (1973) 1973 CanLII 2364 (QC CA), 23 C.R. (n.s.) 392 (Que. C.A.); R. v. Lindlau (1978) 1978 CanLII 2366 (ON CA), 40 C.C.C. (2d) 47 (Ont. C.A.). The Crown’s factum suggests that here the complainant did not blame the accused for the fire. With respect, her evidence drips with many such innuendos.

 

[15]           Therefore, in terms of credibility alone, this denial of cross-examination was clearly wrong.

 

[16]           Furthermore, barring this cross-examination was wrong for a second reason. This proposed cross-examination went beyond mere credibility and collateral topics. The express theory of the defence was that the complainant herself was the guilty party. It has long been established that a legitimate way to defend a criminal trial is to lead evidence tending to show that someone else committed or may have committed the crime. See for example R. v. Arcangioli, supra, para. 27, and R. v. Anderson 1938 CanLII 195 (MB CA), [1938] 3 D.L.R. 317, 70 C.C.C. 275 (Man. C.A.).

[17]           And of course, one proper way to adduce evidence is by cross-examination of the opposing side’s witnesses: R. v. Anderson, supra. Fairly often it is the only possible way. Though most American states confine cross-examination to topics covered by the witness during his or her evidence in chief, that is not the law in the Commonwealth. Cross-examination in Canada may be about any topic in issue in the trial or hearing. The numerous authorities are listed in Stevenson & Côté, op. cit. supra, at p. 40-18.