Ce que constitue un contre-interrogatoire inapproprié

R. v. Bouhsass, 2002 CanLII 45109 (ON CA)

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[8] Crown counsel's cross-examination in this case can be described in terms similar to those found at para. 35 of this court's decision in R. v. Robinson (2001), 2001 CanLII 24059 (ON CA), 53 O.R. (3d) 448, 153 C.C.C. (3d) 398:

. . . Crown counsel's cross-examination of the appellant was highly improper. From start to finish, it was designed to demean and denigrate the appellant . . . Many of the questions posed were laced with sarcasm and framed in a manner that made it apparent that Crown counsel personally held the appellant in utter contempt. In many respects, it was not a cross-examination but an attempt at character assassination.

[9] We do not find it necessary to detail the numerous transgressions committed by Crown counsel at trial. With her usual candour, Ms. Cecchetto, who was not the trial Crown, has conceded many of them in her factum.

[10] Assuming, for the purpose of these reasons, that the bad character evidence in issue [See Note 1 at end of document] was properly admissible despite its prejudicial effect, we are of the view that Crown counsel's preoccupation with the prejudicial aspects of the evidence considerably broadened and exacerbated the prejudicial side of the equation. As such, the cross-examination ran afoul of this court's admonition in R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 18 O.R. (3d) 184, 90 C.C.C. (3d) 144 (C.A.) at pp. 192-95 O.R., pp. 150-53 C.C.C., that unfair exploitation by Crown counsel of originally admissible bad character evidence can have a mushrooming prejudicial effect.

[11] In this case, the tone of the cross-examination was often sarcastic, personally abusive and derisive. The language used was emotive and it measured the appellant against a severe moralistic standard. The appellant was attacked for his lifestyle, including his relationship with women in general, his sexual activities, his supposed heroin addiction and his "thievery". While some of these matters (the thefts and the heroin addiction) were held by the trial judge to have probative value, as indicated, the Crown's questions focused largely on the prejudicial content of the evidence, rather than its probative content. [page106]

[12] In addition, the cross-examination broke, in a repetitive and persistent fashion, the following rules that have been spelled out time and time again by this court:

(1) It required the appellant to comment on the veracity of other witnesses.

(2) It improperly required the appellant to explain why certain witnesses were not being called to testify and in the same vein, it called upon him to answer for the fact that his evidence was not corroborated by anyone.

(3) It used the appellant's constitutional right to disclosure as a trap and portrayed him as a stage actor who, in light of disclosure, had carefully scripted his evidence to avoid the minefields in the case against him.

(4) Crown counsel repeatedly referred to the appellant as a bare-faced liar and he regularly injected his personal views and editorial comments into the questions he was asking.

(5) Crown counsel made a number of suggestions in cross- examination that were baseless but highly prejudicial to the appellant.

(6) Crown counsel mocked and unfairly challenged the appellant's adherence to his religious beliefs.

[13] Our concerns about the prejudicial impact of the cross- examination are heightened by a question asked by the jury from which it may be inferred that the bad character evidence had gone some way towards undermining the presumption of innocence. In these circumstances, despite the strength of the Crown's case, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 cannot be applied to save the conviction.

[14] The improprieties which we have identified rendered the trial unfair and the conviction cannot stand. In view of this conclusion, we find it unnecessary to determine the evidentiary issues raised by the appellant in his first ground of appeal. It will be for the trial judge at the new trial to deal with those issues, should they arise.