Le juge a une discrétion afin de permettre l'usage de questions suggestives lors de l'interrogatoire en chef

R. v. Muise, 2013 NSCA 81

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[23]                                             The law on the use of leading questions during direct examination was reviewed by Charron J. (as she then was) in R. v. Rose, 2001 CanLII 24079 (ON CA), [2001] O.J. No. 1150 :

 

9   A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances, and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness’ evidence on preliminary and non‑contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 at 22 (S.C.C.).

 

[24]                                             See also Maves v. Grand Trunk Pacific R. Co. (1913), 1913 CanLII 337 (AB CA), 14 D.L.R. 70, (Alta. S.C., App. Div.) pp. 76-77.

 

[25]                                             The Supreme Court of Canada held in Reference Re R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 at 22 (S.C.C.), that a trial judge has discretion to permit leading questions during direct examination whenever it is considered necessary in the interests of justice. It also held that a witness may refresh his or her memory by reference to his or her earlier depositions and that s. 9 of the Canada Evidence Act applies only when such refreshing is attempted to discredit or contradict a party’s own witness. Kellock J. wrote:

It is quite true that the initial answers made by the witness as to these three matters were not “accepted” by counsel for the Crown but while, as a general rule, a party may not either in direct or re‑examination put leading questions, the court has a discretion, not open to review, to relax it whenever it is considered necessary in the interests of justice, as the learned judge appears to have considered was the situation in the case at bar; ex parte Bottomley [[1909] 2 K.B. 14 at 21‑23.]; Lawder v. Lawder [(1885) 5 Ir. C.L.R. 27 at 38.]. Moreover, the authorities make it clear that a witness may be allowed to refresh his memory by reference to his earlier depositions and that it is only where the object of the examination is to discredit or contradict a party’s own witness that s. 9 of the Canada Evidence Act applies. In the present case it is evident that the object was to show that the mention by the appellant to the police of having left the Lindsay party in the company of two other persons was an afterthought which had not occurred to him when he gave his earlier account to the witness Petrie. Counsel did not wish, therefore, to discredit Petrie but to obtain from her the evidence she had given in her depositions if, on bringing the depositions to her attention, her memory would permit her to adopt them.

 

In Reg. v. Williams [(1853) 6 Cox C.C. 343.], a witness for the prosecution, having replied in the negative to a question put to him, was permitted by Vaughan Williams J., to have his depositions put into his hands, and, after having looked at them, to answer the question. Similarly, in Melhuish v. Collier [(1850) 19 L.J. Q.B. 493.], a witness for the plaintiff was asked by the plaintiff’s counsel as to whether or not she had not made a certain answer in previous proceedings before the magistrate. The question being objected to on the ground that it went to discredit the party’s own witness, the learned trial judge ruled that the question was a proper one. Upon a rule nisi for a new trial, the rule was discharged. At p. 496, Coleridge J., said:

 

A witness from flurry or forgetfulness may omit facts and on being reminded may carry his recollection back so as to be able to give his evidence fully and correctly, and a question for that purpose may properly be put.

 

As to the difference between a question directed to refreshing memory and contradicting one’s own witness, the learned judge continued:

 

But as to the first point it is objected that the object of the question put here was to contradict and not to remind a witness and that therefore it could not be put. It is certainly very difficult to draw the line of distinction in practice and I am not now disposed to do it. In the present case I do not think the question objected to went further than was proper ...

 

See also The King v. Laurin [(1902) 1902 CanLII 116 (QC CQ), 6 C.C.C. 135.], distinguishing R. v. Duckworth [(1916) 1916 CanLII 492 (ON CA), 37 O.L.R. 197].

 

[27]                                             Considering the whole of the evidence that was before the judge, especially the whole of KM’s testimony, I am satisfied the judge did not err in exercising his discretion to allow the Crown’s direct examination of KM to proceed as it did with some leading questions. A reasonable interpretation of Crown counsel’s questioning of KM is that the reason he drew KM’s attention to the excerpts from the transcripts of his sentencing in Youth Court and his testimony at Mr. Munroe’s trial, was to obtain from KM evidence he had given in his prior depositions should his memory permit him to adopt what he had said in those depositions. Few of the questions Crown counsel asked KM were leading in nature. As argued by the Crown, what transpired in this case is more akin to the situation in Coffin, rather than what occurred in Rose. Crown counsel did not cross the line from controlled examination of KM into cross‑examination for the purpose of discrediting or contradicting him: R. v. Situ, 2005 ABCA 275, para. 12.

Il n'est généralement pas permis de poser des questions suggestives à son témoin en interrogatoire principal

R. v. Rose, 2001 CanLII 24079 (ON CA)

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[9] A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1 at pp. 211-12 S.C.R., p. 22 C.C.C.

Les différences entre le contre-interrogatoire d'un témoin ordinaire et d'un accusé

R. v Borden, 2017 NSCA 45

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[114]   Cross-examination is of fundamental importance.  It is recognized as a component of the right to make full answer and defence, protected by ss. 7 and 11(d) of the Charter.  (See R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Lyttle, 2004 SCC 5 (CanLII), [2004] 1 S.C.R. 193).  

[115]   The purpose of cross-examination is not just to ask random questions or have a witness repeat what they said in direct examination.  Rather, it is to weaken the evidence given on direct, support the cross-examiner’s case or to discredit a witness.  Sopinka[1] describes these principles and the breadth accorded a cross-examiner:

§16.127  The oft-quoted words of Wigmore that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth” indicate its great value in the conduct of litigation. Three purposes are generally attributed to cross-examination:

(1)  to weaken, qualify or destroy the opponent’s case;

(2)  to support the party’s own case through the testimony of the opponent’s witnesses;

(3)  to discredit the witness.

To accomplish these ends, counsel is given wide latitude and there are, accordingly, very few restrictions placed on the questions that may be asked or the manner in which they may be put. Any question which is relevant to the substantive issues or to the witness’ credibility is allowed.  It appears that the scope of cross-examination is wide enough to permit questions which suggest facts which cannot be proved by other evidence.

[116]   There are important differences between the permitted scope for ordinary witnesses and an accused.  Ordinary witnesses can be cross-examined as of right, not just on all relevant matters, but also generally on prior disreputable conduct.

[117]   That conduct, if not relevant to some matter in issue at trial, only goes to credibility.  Subject to one important exception, the cross-examiner may be stuck with the answer he or she gets—as contradictory evidence may be precluded by the collateral fact rule. 

[118]   That important exception is the ability to prove a prior conviction, should the witness deny its existence or refuses to answer (s. 12(1.1) CEA).

[119]   However, when an accused testifies, cross-examination on prior discreditable conduct is limited to instances that have resulted in convictions.  This distinction was clearly explained by Martin J.A. in R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.):

[63]  An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack. If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross- examination with respect to discreditable conduct and associations.

[64]  If an accused could in every case be cross-examined with a view to showing that he is a professional criminal under the guise of an attack upon his credibility as a witness it would be virtually impossible for him to receive a fair trial on the specific charge upon which he is being tried. It is not realistic to assume that, ordinarily, the jury will be able to limit the effect of such a cross-examination to the issue of credibility in arriving at a verdict.

. . .

 [71]  It seems reasonable to assume that Kerwin, J., in the passage quoted above, did not intend to cast doubt on the well-established principle that an ordinary witness may be cross-examined with respect to discreditable conduct and associations, unrelated to the subject-matter of his testimony, as a ground for disbelieving his evidence (Phipson on Evidence, 11th ed. (1970), at p. 654), but was rather enunciating a principle peculiarly applicable to an accused.

. . .

 [73]  I conclude that, save for cross-examination as to previous convictions permitted by s. 12 of the Canada Evidence Act, an accused may not be cross-examined with respect to misconduct or discreditable associations unrelated to the charge on which he is being tried for the purpose of leading to the conclusion that by reason of his bad character he is a person whose evidence ought not to be believed. Cross-examination, however, which is directly relevant to prove the falsity of the accused’s evidence does not fall within the ban, notwithstanding that it may incidentally reflect upon the accused’s character by disclosing discreditable conduct on his part.

See also: R. v. Burgar, 2010 ABCA 318.

[120]   To ensure trial fairness, s. 12 of the CEA has been interpreted by the Supreme Court of Canada to give to a trial judge the discretion to prohibit or limit the cross-examination of an accused on his/her criminal record (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670).

[121]   There are other distinctions regarding the ability to cross-examine an ordinary witness as opposed to an accused.  Absent an accused putting his or her character in issue, an accused cannot be cross-examined on having received a conditional or absolute discharge (R. v. Danson (1982), 1982 CanLII 1916 (ON CA), 66 C.C.C. (2d) 369 (Ont. C.A.) and R. v. Sark (2004), 2004 NBCA 2 (CanLII), 182 C.C.C. (3d) 530 (N.B. C.A.)).

[122]   But there is no such restriction for a non-accused witness.  R. v. Cullen (1989), 1989 CanLII 7241 (ON CA), 52 C.C.C. (3d) 459 illustrates.  The main Crown witness had received a conditional discharge on a charge of possession of burglar’s tools.  The trial judge restricted the defence in its cross-examination because he had been granted a conditional discharge for the offence.  A new trial was ordered by the Ontario Court of Appeal.  Galligan J.A. explained (p. 463):

In my opinion those authorities show that, for the purpose of challenging a witness’ credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct. Possession of burglar’s tools is an offence that could contain an element of dishonesty. A person involved in such an offence is a person who could be considered to have been involved in discreditable conduct. In my opinion, therefore, the trial judge’s restriction of defence counsel’s cross-examination within the parameters of s. 12(1) of the Canada Evidence Act deprived the defence of the opportunity to bring to the attention of the jury circumstances which may very well have assisted the jury in deciding what weight it would place upon the complainant’s evidence.

[123]   Furthermore, while an accused can only be cross-examined on the bare bones of his or her criminal record, the charge, the date and the punishment imposed, an ordinary witness can be cross-examined on the underlying facts of the conviction (R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.)).  Indeed, an ordinary witness can even be cross-examined on the underlying facts behind outstanding charges (R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.)).

[124]   What flows from this state of the law is that counsel for the appellant needed no judicial fiat to cross-examine Ricky Borden, or any crown witness, on prior discreditable conduct or associations, and if conduct resulted in a criminal conviction, the date, punishment imposed and the underlying facts.  On the other hand, the appellant could have sought a ruling (prior to testifying) from the trial judge to restrict the Crown from cross-examining him on his criminal record, including recent offences for the very conduct that he was on trial for. 

Un témoin ordinaire peut être contre-interrogé sur toute conduite indigne

R. v. Cullen, 1989 CanLII 7241 (ON CA)

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When making the ruling it seems apparent that the trial judge had in mind the provisions of s. 12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. That section provides that a witness may be questioned as to whether he has been convicted of any offence. In R. v. Davison and DeRosie (1974), 20 C.C.C. (2d) 422, 6 O.R. (2d) 101 (S.C.), Martin J.A. giving the judgment of this court held that the narrow limitations upon cross-examination imposed by s. 12(1) of the Canada Evidence Act applied to the cross-examination of an accused person but did not apply to the case of an ordinary witness. He made reference to the "well established principle that an ordinary witness may be cross-examined with respect to discreditable conduct ...". Reference should also be made to the decision of the Supreme Court of Canada in Titus v. The Queen (1983), 2 C.C.C. (3d) 321, 144 D.L.R. (3d) 577, [1983] 1 S.C.R. 259. In that case the Supreme Court of Canada held that a Crown witness could be cross-examined with respect to the circumstances in an outstanding indictment which had not come to trial by the time he testified. 

In my opinion those authorities show that, for the purpose of challenging a witness's credibility, cross-examination is permissible to demonstrate that a witness has been involved in discreditable conduct. Possession of burglar's tools is an offence that could contain an element of dishonesty. A person involved in such an offence is a person who could be considered to have been involved in discreditable conduct. In my opinion, therefore, the trial judge's restriction of defence counsel's cross-examination within the parameters of s. 12(1) of the Canada Evidence Act deprived the defence of the opportunity to bring to the attention of the jury circumstances which may very well have assisted the jury in deciding what weight it would place upon the complainant's evidence. 

La doctrine et la jurisprudence reconnaissent qu’un appel au 9-1-1 est une exception à la règle du ouï-dire

R. c. Hudon-Barbeau, 2017 QCCS 5853

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[16]   La doctrine et la jurisprudence reconnaissent qu’un appel au 9-1-1 est une exception à la règle du ouï-dire. L’appel au 9-1-1 fait partie de la res gestae et fait preuve de son contenu :

7:120.20.10 – Contemporaneity

[…]

A common form of res gestae statements is 911 calls made during or following the commission of a crime.

[…]

7:120.20.50 – Whose Declaration

The statement can be made by any person who perceived the dramatic event and need not involve a victim-declarant. The rationale for admission is not based on the status of the witness in respect of the offence or the trial, but rather on the reliability of the statement as it arises out of the impact of the "overpowering event"[3].

[17]   Dans l’arrêt R. v. Sylvain, 2014 ABCA 153, la Cour d’appel de l’Alberta réitère que les appels faits au 9-1-1 ont souvent été admis en vertu de la règle de la res gestae qui est une exception à la règle du ouï-dire et souligne aussi que les appels au 9-1-1 au milieu d’un crime sont souvent des appels à l’aide à une tierce personne qui, en l’occurrence, est la répartitrice au 9-1-1 :

 [34]     A review of the case law confirms that 911 calls have often been admitted under the  res gestae exception to hearsay […] In today’s information technology world, a 911 call in the middle of a crime is akin to a cry for help heard by someone nearby. In these circumstances, the someone nearby happens to be the 911 operator. 

[…]

[40]      When considering the particular issues underlying this appeal, the ultimate issue is not whether the 911 call is admissible under the res gestae exception to the hearsay rule, as we have found, but rather the use to which it can be put once admitted.  Res gestae statements are admitted for the truth of their contents […] Certainly, a 911 call qualifying as  res gestae may be relevant to the time and place of the events, or the emotional state of those involved […] To this we would add that a 911 call may also be relevant to the physical state of the person making the call. In this case, the only issue was consent, and the emotional state of the complainant, as revealed in the 911 call, was evidence on that point […] The 911 call was also evidence of the sequence of events and the physical state of the complainant at the time of the call.

[18]   Dans l’arrêt R. c. Head, 2014 MBCA 59, la Cour d’appel du Manitoba mentionne qu’une déclaration est suffisamment contemporaine même si elle est faite peu de temps après la fuite des lieux du déclarant. De plus, la garantie de fiabilité d’une déclaration peut provenir de la situation elle-même. En effet, si le déclarant est soumis à un tel stress ou à une telle pression liée aux évènements, il se peut que le risque qu’il puisse avoir inventé ou déformé la réalité soit écarté :

[31]      The analysis as to whether a declarant’s statement if sufficiently contemporaneous is functional. A circumstantial guarantee of trustworthiness comes from the declarant being under such stress of pressure from the triggering event that the possibility of concoction or distortion when making the statement can safely be disregard (R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2d) 609 at 622 (C.A.), leave to appeal to C.C.C. ref’d, [1983] S.C.C.A. No. 253 (QL)).

[34]      When hearsay evidence satisfies a traditional recognized exception to the hearsay rule, it is admissible unless it is a rare case where it does not satisfy the indicia of necessity and reliability required by the principled approach to the hearsay rule (Mapara at para. 15).

[19]   L’arrêt R. v. Moore and Williams, 2014 ONSC 650 est au même effet aux par. 16 et 17 :

[16]      One of the traditional exception is the exception for spontaneous declarations, which applies « if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded. »

[17]      Professor Wigmore explained the principle underlying this exception as follows:

The general principle is based on the experience that, under certain circumstances of physical shock, s stress of nervous excitement may be produced which stills the reflective faculties and removes their control so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since the utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness) and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.

[20]   L’appel au 9-1-1 est ainsi admissible.

[21]   À cet égard, la Défense n’attaque pas la validité de la règle de la res gestae en soi. Comme le note la Cour suprême, ce n’est que dans des « rares cas » que la preuve relevant d’une exception existante et valide à l’exclusion du ouï-dire ne présentera pas les indices de nécessité et de fiabilité requis[4].

[22]   Les arguments de la Défense, selon lesquels l’appel 9-1-1 n’est pas admissible parce qu’il n’a pas été fait par la victime et parce qu’il a été fait hors la présence de l’accusé, ne sont pas étayés par la jurisprudence[5].

[23]   Le témoin rapporte ses propres observations relativement aux incidents qui viennent tout juste de se produire alors qu’il était à proximité des lieux.

[24]   Le contenu même de l’appel, le ton employé et le langage familier démontrent l’état de stress dans lequel il se trouvait et l’insistance manifestée pour que les secours arrivent au plus tôt.

[25]   Ces éléments joints à la contemporanéité des événements ne laissent aucun doute quant à la pertinence des propos qui sont rapportés par le témoin et comportent toutes les garanties de fiabilité permettant d’admettre en preuve l’appel au 9-1-1.

[26]    Quant aux indices de nécessité, le Tribunal fait siens les propos de la Cour d’appel de l’Alberta dans l’arrêt Sylvain, précité :

[33] As for necessity, where, for some reason, the person making the 911 call is unable to testify, then the necessity branch of the test is clearly met: R v Nicholas (2004), 2004 CanLII 13008 (ON CA), 184 OAC 139 at paras 90-92, 70 OR (3d) 1 (CA). Where, as here, the caller did testify, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated. More fundamentally though, the “excited utterances” exception to the hearsay rule does not arguably contain a necessity requirement. The policy underlying the necessity requirement is rooted in the “best evidence” proposition. Typically, that will be in-court testimony. But as pointed out by Justice David Paciocco in “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17:2 Can Crim L Rev 181 [Paciocco] at 192-193:

... [T]he “necessity” component performs a “best evidence” function. It exists to ensure that if it is possible to present “better evidence” in the form of in-court testimony, parties should not be permitted to resort to hearsay proof...

…

The res gestae exceptions do not have a necessity requirement ... In-court testimony may not be better evidence than “excited utterances” because in-court testimony is not uttered in the pressure of the moment before an opportunity to concoct has arisen ...