Une partie peut contre-interroger un témoin autre que l'accusé sur toute circonstance tendant à démontrer un biais, un intérêt ou de la corruption

R. v. Megill, 2021 ONCA 253

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[109]   The motive of a witness to testify is a subject that may be explored in cross-examination. For example, a witness may be cross-examined about circumstances that tend to show bias, interest or corruption. The witness' denials may be contradicted by evidence as an exception to the collateral facts rule: see, for example, Attorney General v. Hitchcock (1847), 1 Ex. 91; McDonald v. The Queen, 1959 CanLII 25 (SCC), [1960] S.C.R. 186, at p. 191; and R. v. S. (A.) (2002), 2002 CanLII 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 32.

[110]   In general terms, a party who intends to impeach a witness called by an opposite party must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence. This rule, the rule in Browne v. Dunn as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at para. 76, leave to appeal refused, [2016] S.C.C.A. No. 203.

[111]   The rule in Browne v. Dunn is rooted in considerations of fairness:

i.      to the witness whose credibility is attacked, by alerting the witness to the intended impeachment and offering the witness the opportunity of explanation;

ii.      to the party whose witness is impeached, by providing notice, thus the opportunity to decide about introducing confirmatory evidence; and

iii.     to the trier of fact, by ensuring that it is not deprived of the full picture of the impeachment and its response, thus not compromising the accuracy of its verdict.

See Quansah, at para. 77.

Les principes cardinaux du contre-interrogatoire

R v Schmaltz, 2015 ABCA 4

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[19]           In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination of a witness, several principles ought to be borne in mind:

(1)   The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from the presumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at para 39, [1991] SC J No 62 (QL); Osolin at para 25. This is particularly so when credibility is the central issue in the trial: Osolin at para 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.

 

(2)   The trial judge may intervene in certain instances, including to clarify an unclear answer, to resolve misunderstanding of the evidence, or to correct inappropriate conduct by counsel or witnesses. This would extend to protecting complainant witnesses – especially complainants to a sexual assault – from questions tendered for an illegitimate and irrelevant purpose designed to demean, particularly where those questions are random shots at the complainant’s reputation or groundless questions directed to discredited “rape myths” to the effect that the complainant’s unchaste or aroused state made it more likely that she would have consented to the sexual activity in question: Lyttle at 208-09; R v Valley, (1986) 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207 at para 53, 13 OAC 89, leave to appeal refused [1986] SCCA No 298 (QL) [Valley]; R v Regan, 2002 SCC 12 at para 85, [2002] 1 SCR 297; R v Shearing, 2002 SCC 58 at para 76), [2002] 3 SCR 33.

 

(3)   When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustrates counsel’s strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses: Valley at para 55; R v Brouillard, [1985] 1 SCR 39 at 44-47, 1985 CanLII 56; R v Konelsky, 1989 ABCA 201 (CanLII), 98 AR 247 at 248, 68 Alta L R (2d) 187 (CA).

 

(4)   If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial: R v Switzer, 2014 ABCA 129 at para 7, 572 AR 311 [Switzer].

 

(5)   In determining whether the trial judge’s interventions deprived the accused of a fair trial, those interventions should not be considered separately and in isolation from each other, but cumulatively: R v Khan, 2001 SCC 86 at para 77, [2001] 3 SCR 823 [Khan]; R v Stucky, 2009 ONCA 151 at para 72, 303 DLR (4th) 1, R v Watson (2004), 2004 CanLII 45443 (ON CA), 191 CCC (3d) 144 at para 14, 192 OAC 263. The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead a reasonably minded person to consider that the accused had not had a fair trial: Khan at para 76; R v Stewart (1991), 1991 CanLII 11753 (ON CA), 62 CCC (3d) 289 at para 46, 1991 CarswellOnt 1317 (CA) [Stewart].

 

[20]           The test for considering a ground of appeal citing trial unfairness depends on the kind of unfairness alleged. Here, the question to be answered is whether the appellant’s right to make full answer and defence was breached by significant and unwarranted constraints imposed by the trial judge upon defence counsel’s cross examination of the complainant: Lyttle at 196.

[21]           As to the standard by which this question is to be answered, before us both the appellant and the Crown were agreed that the standard is stated by this Court in Switzer, which (at para 5, citing Valley) considers whether the accused or an observer present throughout the trial might reasonably consider that the accused had not had a fair trial. In its factum, however, the Crown referred to the reasons for judgment reserved of this Court in R v Hodson, 2001 ABCA 111, 92 Alta LR (3d) 262 [Hodson]. There, while a dissenting judgment articulated (at para 56) a standard virtually identical to that later stated in Switzer, the majority (at para 31) held that a declaration that the trial judge had impermissibly “entered the arena ... should be reserved to the clearest of cases.” Hodson was, however, not a case where objection was taken to the trial judge’s entry into the arena took the form of interjections during cross-examination per se. Rather, the appellant in that case had put in issue the trial judge’s disparagement (some of which occurred during interjections during cross-examination) of studies on the frailties of dock identification and the use of lineups as “imaginary psychobabble”. The question presented by Hodson was whether the trial judge’s comments revealed that he had closed his mind to, and was therefore no longer impartial on, the issue of identification. In short, the complaint in Hodson, rejected by this Court, was one of reasonably apprehended bias. I deal below (under “Reasonable Apprehension of Bias”) with that aspect of trial fairness as it pertains to this case.

[22]           In Brouillard v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, [1985] SCJ No 3 (QL) [Brouillard], the trial judge’s interjections during questioning of the accused and (among others) another defence witness led the accused to complain (inter alia) that the judge was biased. The Supreme Court concluded (at para 27) that those interjections were so extensive as to give the impression of assisting the Crown, thus raising a reasonable apprehension of bias. The objective standard by which the Court determined the complaint of bias was, however, stated so broadly as to apply to another aspect of trial unfairness raised (at para 6) by the appellant in that case, which was that the interjections prevented him from making full answer and defence to the charges against him:

The role of a trial judge is sometimes very demanding, owing to the nature of the case and the conduct of the litigants (parties). Like anyone, a judge may occasionally lose patience. He may then step down from his judge’s bench and assume the role of counsel. When this happens and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, even when the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not incorrectly assessed the facts.

The reason for this is well-known. It is one of the most fundamental principles of our case law, the best known formulation of which is to be found in Lord Hewart’s judgment in R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259:

… [it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

[23]           As I shall discuss below, the requirement that justice be seen to be done – which necessarily entails adopting the standpoint of an objective observer – is applied to assessing grounds of appeal based on an allegation of bias or the reasonable apprehension thereof. Brouillard demonstrates, however, that it also describes the standard to be applied generally to appeals based on a denial of trial fairness, and more particularly to appeals based on the denial to an accused of the right to make full answer and defence by subjecting the Crown’s evidence to cross-examination. While, therefore, in a case involving reasonably apprehended bias, the Supreme Court (in Teskey, at para 21) required not only that impartiality be “objectively determined to the informed and reasonable observer”, but that fairness also be so objectively demonstrable. See also Cojocaru at para 13: “[t]o determine whether a defect relating to reasons for judgment is evidence of procedural error negating a fair process, the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer, having regard to all relevant matters ....”A reasonable observer is a well-informed and right-minded observer. The question to be asked in assessing whether interjections during defence counsel’s cross-examination of a Crown witness generated trial unfairness is, therefore, whether a reasonable and, as such, well-informed and right-minded observer would consider that the trial judge’s interjections during defence counsel’s cross-examination of the complainant deprived the appellant of his right to make full answer and defence.

[24]           Unlike (as I discuss below) where the trial fairness concern involves bias or the reasonable apprehension thereof, there are no presumptions. While I recognize the Ontario Court of Appeal has said otherwise (R v Hamilton, 2011 ONCA 399 at para 29, 279 OAC 199), there is no good reason to presume that a trial judge has not unduly intervened in cross-examination. The reason a presumption of impartiality in cases of bias makes sense is that a reviewing court cannot know the trial judge’s mind or motivations for deciding the way he or she did. That uncertainty is resolved by presuming, subject to cogent evidence otherwise, the trial judge’s fidelity to his or her oath to administer justice impartially and independently: Cojocaru at para 69. Interventions in cross-examination, however, can be objectively viewed and assessed, without the aid of presumptions in one direction or another. The reasonable observer test itself makes this plain.

Comment apprécier les interventions d'un juge lors d'un contre-interrogatoire

R. v. Walton, 2025 ONCA 368

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[16]      I would frame the first issue slightly differently: Did the trial judge improperly assume the role of counsel by his interruptions, interjections, and questioning of Ms. Walton?

[17]      The law interposes several protective barriers between the immense power of the prosecuting state and a vulnerable accused person including the burden of proof on the Crown to prove the charge beyond a reasonable doubt, the elements of the charge the Crown must prove, other procedural protections offered by the Criminal Code, R.S.C. 1985, c. C-46, and by the common law, the rights protected by the Canadian Charter of Rights and Freedoms, and the adversarial system itself. That system’s elements include the right of each party to be represented by counsel, the right to examine witnesses in chief and to cross-examine witnesses, and the ability of defence counsel to object and require the judge to rule on the admissibility of evidence and other procedural issues. Certain duties are imposed on members of the jury, who are the fact finders. Finally, the judge who presides over the trial has a large role.

[18]      I will set out the governing principles and then apply them. The relevant principles cover several different areas.

(1)         The Governing Principles

[19]      The overriding principle governing a trial judge’s intrusion into the questioning of a witness is cautious restraint, in light of the roles that our adversarial system accords to the judge, the jury, counsel, the parties, and to witnesses. The supporting principles are well known but sometimes require restatement.[5]

[20]      In the context of a jury trial, the judge holds in tension two considerations, outlined by Kelly J.A. in R. v. Torbiak and Campbell,[6] at para. 5:

On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose.

[21]      Later cases have elaborated on this tension between preserving judicial neutrality and intervening by questioning a witness.

[22]      The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness.[7] However, a trial judge is permitted to intervene where doing so is essential to ensure justice is done in both substance and appearance.[8] A trial judge is entitled to and must “manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides”, and to witnesses.[9]

[23]      However, trial judges should, consistent with the principle of cautious restraint, confine themselves to their own responsibilities, leaving counsel and the jury to perform their respective functions.[10]

[24]      In this light, I point out that examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator.[11] A trial judge must not cause a reasonable person to believe that he has “placed the authority of his office” on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression created may be fatal to the appearance of trial fairness.[12]

[25]      Although the trial judge may ask questions that should have been asked by counsel, the trial judge must not usurp counsel’s role. The judge must not “leave his or her position of neutrality as a fact-finder and become the cross-examiner.”[13] When the trial judge does intervene in questioning a witness, “it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.”[14]

[26]      As this court instructed in Chippewas, at para. 239, a trial judge should try to avoid interfering with the organization and flow of the evidence, because judicial intervention might impede counsel in following an organized line of inquiry. This is especially important during examination-in-chief.[15] Obviously, the trial judge should never cross-examine a witness. Rather, when the trial judge believes that it is necessary to question a witness, the judge’s questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning. An exception would be a fast clarification that does not become a digression.

[27]      Stucky and Murray provide useful bookends on permissible and impermissible interventions. In Stucky, at para. 64, this court adopted and summarized the comments of Martin J.A. in Valley, at para. 53:

Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses’ answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.

[28]      The other bookend, in Murray, provides the counterpoint, at para. 94, per Watt J.A.:

The principal types of intervention that attract appellate disapprobation include, but are not limited to,

(i)        questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

(ii)      questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

(iii)     intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

(iv)     inviting the jury to disbelieve the accused or other defence witnesses.

[29]      There are other relevant limits on the right to intervene. As Lamer J. emphasized in Brouillard, at para. 24, when an accused testifies, “prudence and the resulting judicial restraint must be all the greater”.[16]

[30]      Lastly, a trial judge must be especially cautious in questioning an accused or a witness while sitting with a jury.[17] In particular, the judge should be careful to not ask questions that seem to favour one side or the other. In jury trials, trial judges “must always keep in mind that they are neither an advocate nor the trier of fact.”[18]