R. v. MacIsaac, 2017 ONCA 172
[57] Addressing this ground of appeal is made more difficult because the psychological report in question was not filed as a lettered exhibit at trial. It should have been: see 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, [2017] O.J. No. 331, at paras. 35-36.[1] Without reading the report, it is difficult to put the “mystical powers” comment in its proper context. Nevertheless, even on the limited record that is available, it is clear that defence counsel’s proposed line of questioning was not barred by the collateral fact rule. But as discussed below, the cross-examination was problematic in other ways.
[58] The collateral fact rule does not curtail what is otherwise proper cross-examination of a witness; it potentially limits the manner in which answers given may be subsequently challenged by extrinsic evidence: see Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis Canada Inc., 2014), at pp. 1195-1201. As is often said, if the questioner asks a question that bears on a collateral issue, he or she is “stuck” with the answer, in the sense of not being permitted to lead extrinsic evidence to contradict it. However, this does not prevent proper questions from being put in the first place: see R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at pp. 474-475 and R. v. Khanna, 2016 ONCA 39, 127 W.C.B. (2d) 613, at para. 9.
[59] The collateral fact rule is most often engaged when a cross-examiner attempts to challenge the credibility of a witness. Generally speaking, credibility is considered to be collateral, thereby barring the questioner from adducing extrinsic evidence that bears solely on this issue. However, the rule has developed in a manner that admits of a number of exceptions: See Earl J. Levy, Examination of Witnesses in Criminal Cases, 7th ed. (Toronto: Thomson Reuters, 2016), at pp. 509-511. The exception that might have applied in this case is that medical evidence may be adduced to prove that, by virtue of a mental or physical condition, the witness is incapable of telling or is unlikely to tell the truth. In Toohey v. Metropolitan Police Commissioner, [1965] A.C. 595 (H.L.), at p. 608, Lord Pearce held: “…it must be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.” See also R. v. Dietrich, 1970 CanLII 377 (ON CA), [1970] 3 O.R. 725 (C.A.), at pp. 742-744.
[60] If Leggat suffered from delusions and/or experienced hallucinations, it may have affected her credibility and reliability as a witness. Defence counsel should have been permitted to explore this issue in cross-examination. Moreover, and although it was never expressed, if defence counsel was contemplating leading the type of evidence considered in Toohey, fairness to Leggat required that she be confronted with this suggestion during her testimony: see Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) and R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.
[61] This legitimate line of inquiry was undermined by the manner in which counsel framed his questions. Given that the psychological report said that Leggat “apparently believes” she has special mystical powers, it was appropriate to ask her whether she told Dr. Valiant that she had mystical powers. Defence counsel asked the question and Leggat denied the suggestion. Moreover, there would have been nothing improper in asking Leggat whether she believed that she had mystical powers. It was not appropriate, however, to cross-examine Leggat on an assessment or diagnosis contained in the report. It would appear that this is where things were headed when the trial judge intervened. It may have been appropriate to attempt to refresh Leggat’s memory by reference to the report, assuming that a proper foundation for doing so could be laid: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, para. 45. However, it is not clear from the portion of the transcript reproduced at para. 52 above whether Leggat actually looked at the report before saying, “I never said I had…what are mystical powers? I don’t even know what that word means.”
[62] Even though the trial judge improperly curtailed the cross-examination of Leggat, he offered defence counsel an opportunity to approach the issue in a different manner. Defence counsel did not accept the invitation, did not bring any authorities to the trial judge’s attention, nor did he attempt to adduce evidence of a mental disorder along the lines of Toohey.
[63] Leggat was thoroughly cross-examined on all aspects of her previous statements, evidence, character and lifestyle. As discussed earlier in these reasons, she was exposed as a witness whose evidence required confirmation. I am not persuaded that the manner in which the trial judge dealt with this issue, while somewhat problematic, resulted in an unfair trial. I would not give effect to this ground of appeal.
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