Le juge jouit d'une discrétion pour admettre en preuve une déclaration dans son intégralité lorsqu'un témoin subit un contre-interrogatoire exhaustif en regard d’une déclaration extrajudiciaire contradictoire

R. v. Bartley, 2012 BCSC 2183

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[3]           Section 10(1) of the Canada Evidence Act, among other things, grants the trial judge a discretion to call for production of a witness statement and make such use of it as he or she thinks fit where the witness has been cross-examined on the statement.  While the authorities relied upon have referred to the discretion accorded to the trial judge under s. 10 as broad, the circumstances in which the trial judge should normally permit the statements to become exhibits is limited to cases in which there has been extensive cross-examination of the witness on the statement.  In general, the cross-examination must normally be “at large” or “wide-ranging”.  Where the cross-examination meets this criterion, the statements may become evidence in the trial in fairness to the witness.  As Craig J.A. says in Smith at para. 17:

… A corollary of the right to contradict a witness by a previous statement in writing is that the witness has the right to show that the writing generally, not merely the parts referred to by counsel, does not necessarily contradict his testimony. This may be done in re-examination or by reference to the writing generally.

[4]           In this case, the defence did not cross-examine Ms. Steeves as to inconsistencies between her testimony at trial and her prior statements to the police, generally, or regarding her description of the alleged assault by Mr. Bartley.  Instead, the defence cross-examined on the witness’s lack of candidness with the police concerning her own involvement in the marihuana grow operation, her knowledge of the purpose and timing of Mr. Bartley’s attendances at the ranch, details surrounding the sale of marihuana through Mr. Bartley, and her lack of prompt disclosure to the police about Mr. Hala.  She was also cross-examined on the sequence of events preceding the assault and as to how long the events surrounding the assault or the attack took place.  Ms. Steeves’ description of the assault was generally left untouched by cross-examination.

[5]           In light of the nature of the cross-examination, it is not necessary, in fairness to the witness, to admit the bulk of the statements which contained her description of the assault.  None of her evidence in this regard was exposed to extensive cross-examination based upon her inconsistent statements to the police.  The other areas of cross-examination involved discrete subjects that did not spill over into her description of the events.  The existence of credibility problems regarding the marihuana grow operation and Mr. Bartley’s involvement in the sale of the marihuana does not require the court, in fairness to the witness, to have regard to her statements concerning other events to properly assess her credibility generally.  There is no suggestion that the passages read into the record by the defence are out of context or require additional passages to clarify Ms. Steeves’ answers.  The Crown did not re-examine on any of these specific areas.

[6]           I have ordered a transcript of Ms. Steeves’ evidence to ensure that I have a complete picture of her prior statements, her evidence at trial, and her responses to the cross-examination to properly assess the extent to which she was impeached and in regard to what manner she was impeached.  In the particular circumstances of this case, to admit the otherwise consistent statements made by the witness would have the effect of allowing the Crown to bolster her credibility by prior consistent statements that were not the subject of cross-examination.  I do not believe this is the purpose of s. 10 of the Canada Evidence Act.

[7]           In my view, the authorities cited by the Crown and defence support a conclusion that it is only where the nature of the cross-examination makes it essential that the whole of the statement becomes evidence in the trial that they should be marked as an exhibit.  For example, in Newall, the trial judge properly introduced the statements because the cross-examination was directed at showing the jury that the witness did not include much of her evidence at trial in her statement to the police.  The jury could not understand whether it would have been appropriate for these matters to come out in her statement unless they read the entire statement for context.  The defence also suggested in cross-examination in Newall that the statements became more damaging to the accused as the interview went on.  This formed another reason the jury should see the entire statement to assess whether this was true.