Il est inapproprié de ''faire le procès du style de vie'' de l'accusé lors de son contre-interrogatoire, ainsi que de lui demander de commenter la crédibilité des témoins à charge

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

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[26] I agree with the appellant's contention that the cross- examination was improper. Crown counsel, of course, is entitled to conduct a vigorous cross-examination of an accused and, at times, permissible lines of inquiry will necessarily reflect adversely on the appellant's character. However, in this case, when the cross-examination is considered in the context of the issues in the case, it is my view that Crown counsel transgressed the limits of relevance in questioning the appellant generally on his lifestyle, from the manner of his dress to the fulfillment of his fiscal responsibilities. The appellant was not on trial for his general lifestyle and it was unfair to place him in a position where he had to defend against vague and irrelevant suggestions of improper conduct.

[27] Further, this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers: see, for example, R. v. Cole, [1999] O.J. No. 1647 (C.A.); R. v. F. (A.) (1996), 1996 CanLII 10222 (ON CA), 30 O.R. (3d) 470, 1 C.R. (5th) 382 (C.A.); R. v. Masse (2000), 2000 CanLII 5755 (ON CA), 134 O.A.C. 79 (C.A.); R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.). Crown counsel did this repeatedly during the course of the cross-examination. Questions of this nature suggest that there is some onus on an accused person to provide a motive for the Crown witness' testimony and, as such, they undermine the presumption of innocence.

Ce que doit viser un contre-interrogatoire

R. v. O.G.K., 1994 CanLII 8742 (BC CA)

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[14]           Halsbury [Halsbury's Laws of England], also citing Browne v. Dunn, supra [(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.)], puts the matter somewhat differently [4th ed., vol. 17, para. 278]:

278. Purpose of cross-examination. Cross-examination is directed to (1) the credibility of the witness; (2) the facts to which he has deposed in chief, including the cross-examiner's version of them; and (3) the facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose. Where the court is to be asked to disbelieve a witness, the witness should be cross-examined; and failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence.

Quelles sont les informations devant se retrouver dans un inventaire de type Laporte?

Chapelstone Developments Inc., Action Motors Ltd. et Hamilton c. Sa Majesté la Reine du chef du Canada, 2004 NBCA 96

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[27]                                   L’obligation du ministère public de divulguer les renseignements en sa possession, y compris les documents confidentiels obtenus de tiers, prend naissance lorsque l’accusé fait une demande de divulgation. Dans de telles circonstances, le ministère public est tenu de fournir un relevé détaillé de l’information en sa possession, en indiquant les documents ou renseignements qu’il a l’intention de divulguer ou de ne pas divulguer. Au sujet de cette dernière catégorie, le ministère public doit énoncer ses motifs de refuser la divulgation. Plus précisément, le ministère devrait énoncer le critère juridique applicable pour statuer sur la question de la divulgation (la pertinence, par exemple). De plus, la nature de chaque document ou renseignement doit être décrite de façon suffisamment détaillée pour que l’avocat de la partie adverse soit capable de décider de façon raisonnée s’il demande ou non la production ou la divulgation. Le relevé peut également servir à une autre fin utile. Si le refus est contesté par voie de motion, la liste permettra au juge du procès de vérifier si la production ou la divulgation sera nécessaire (par exemple, les communications entre avocat et client dont il sera question plus loin). 

L'inventaire de type Laporte est un outil que la Cour peut ordonner à la Poursuite de produire, à sa discrétion

R v Anderson, 2013 SKCA 92

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[95]   In R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, the Court set out the procedure to be followed by a reviewing judge when the Crown refuses to disclose material.  The Court explained:

25        In situations in which the existence of certain information has been identified, then the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the Crown an opportunity to call evidence to justify such allegation of non-disclosure. As noted in R. v. Stinchcombe, supra, at p. 341:

This may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence. A voir dire will frequently be the appropriate procedure in which to deal with these matters.

[96]   The process outlined in Laporte is not inconsistent with Chaplin.  Chaplin does not require an inventory to be produced.  The Crown simply has to justify non-disclosure.  The manner in which this is done will vary depending on the case.  In some cases the judge may just inspect the disputed material and in others the submissions of counsel in the absence of a list may suffice.

[97]   In my view, a Laporte inventory is no more than suggested by Sherstobitoff J.A.:  a practical suggestion to assist counsel and the court on a review of the Crown’s obligation to disclose.  It is a tool that a trial judge may, in his discretion, use to help determine whether the Crown has met its disclosure obligations but he is not obliged to order one in every case.  The Crown is not legally obligated to provide one in every case or to provide one upon the request of the defence.  That said, the Crown may choose to provide it, nevertheless, because it assists the review process.

[98]   The trial judge concluded that a type of Laporte inventory had been provided and achieved the goals of such a document.  Of interest is the reference by the trial judge to the Laporte inventory in the context of the delay decision:

108      The revised Laporte inventory (Exhibit P-3), provided by the Crown on April 29, 2011 was exhaustively examined by the Court. Eventually, after several hours of tediously reviewing the documentation in open court, the defence eventually conceded that the vetted and withheld material outlined in the Laporte inventory was with two exceptions, appropriate. The two points in contention were resolved in favour of the Crown.

Whatever the document could be called, it was helpful to counsel and the Court as part of the review process. 

La procédure devant être suivie pour réviser le refus du Poursuivant de communiquer un renseignement

R v Chu, 2016 SKCA 156

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[47]            Shortly after the Supreme Court of Canada released Stinchcombe, and before Chaplin, this Court established a procedure to review the Crown’s refusal to disclose in Laporte. According to Laporte, the Crown is required to produce “a written, itemized inventory of the information in its possession, identifying those items which it intends to disclose and those which it does not, and containing, in respect of the latter items, a statement in each case of the basis upon which the Crown proposes to withhold disclosure” (at para 18). The Crown should describe each item “with sufficient detail that counsel will be enabled to make a reasoned decision as to whether to seek disclosure or not”.

[48]            As Ottenbreit J.A. indicated in Anderson, the courts in Saskatchewan have continued to follow the procedure set out in Laporte. Although it is not mandatory and it is not inconsistent with Chaplin, it is a tool to help determine whether the Crown has met its disclosure obligations (see paragraph 97 of Anderson). Ottenbreit J.A. confirmed, however, that the Crown “has to justify non-disclosure” (at para 96) in circumstances where the Crown refuses to disclose documents known to exist.

La Poursuite peut utiliser les antécédents judiciaires d'un accusé pour démontrer qu'il n'est pas psychologiquement détenu lors de l'intervention policière et attaquer sa crédibilité

R. v. Poole, 2015 BCCA 464 

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[18]        On the voir dire the Crown introduced Mr. Poole’s criminal record to prove that he had experience dealing with police officers at the time of the offence – a factor identified in R. v. Grant, 2009 SCC 32, as relevant in assessing whether an individual has been psychologically detained. The trial judge also made use of the record to assess Mr. Poole’s credibility (at para. 57):

Secondly, he has a lengthy criminal record involving offences of moral turpitude. I conclude that Mr. Poole has little regard for the law including the import of taking an oath. [Emphasis added.]

[19]        Mr. Poole acknowledges that once the record was before the court, it was open to the trial judge to consider it in assessing credibility. But he submits that the trial judge went too far in using it to conclude that Mr. Poole had a propensity to lie. Mr. Poole argues there were no convictions for perjury or other offences that would support such a finding. This was described by counsel for Mr. Poole as impermissible ‘propensity reasoning’.

[20]        Using a criminal record to infer that a witness lacks credibility is precisely the sort of reasoning which the law permits. As Dickson C.J.C. states in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 686, citing with approval a passage from State v. Duke, 123 A.2d 745 (N.H. 1956) at 756:

What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word. In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense that when a defendant goes onto a stand, “he takes his character with him . . . .” Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concerned solely with crimes involving “dishonesty and false statement.” [Emphasis added.]

[21]        The trial judge was entitled to draw an inference of untrustworthiness from Mr. Poole’s criminal record which stretched back to 1987 and included seven convictions for robbery, a serious offence which Ryan J.A. described as “highly relevant” to an accused’s credibility: R. v. Madrusan, 2005 BCCA 609 at para. 48.

[22]        In summary on this ground of appeal, in my view the trial judge did not err when he concluded that Mr. Poole’s criminal record detracted from his credibility.

Comment la Cour doit traiter la perte des notes manuscrites des policiers lorsqu'il existe un rapport informatisé en lien avec l'événement

R. v. Thompson, 2015 ONCA 800

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[56]      In support of this submission, he relies on Wood v. Schaeffer, 2011 ONCA 716, 107 O.R. (3d) 721, rev’d on other grounds 2013 SCC 71, [2013] 3 S.C.R. 1053, for the proposition that when notes are used to refresh an officer’s memory at trial, it is vital that the notes used record the officer’s own independent recollection of the events in question.

[57]      The issue here is that the appellant could not compare the rough handwritten central notes with the typed version, not that each officer failed to prepare individual notes or that the notes were made in a group, as in R. v. Jinje, 2015 ONSC 2081, [2015] O.J. No. 1590.

[58]      I appreciate that the quality of the record-keeping and the adequacy of an officer’s notes are important, as noted in R. v. Odgers, 2009 ONCJ 287, [2009] O.J. No. 2592. In the post-Stinchcombe era, a police officer’s notes are more than an aide memoire and a potential source of fruitful cross-examination; they are a source against which to check the Crown’s disclosure.

[59]      The purpose of central notes was discussed by Pattillo J. in R. v. Thompson, 2014 ONSC 250, 111 W.C.B. (2d) 181, at para. 18:

The evidence establishes that the purpose of central notes is to enable the officers engaged in a real time police exercise to be able to concentrate on the task at hand without having to worry about noting down times, observations and actions during their involvement…At the end of the surveillance, the information in [the central notetaker’s] handwritten notes [are] canvassed with each officer and the observations [are] confirmed to reflect each officer’s recollection. [The central notetaker] then type[s] up his notes…

[60]      Pattillo J. held, at para. 19, that when central notes are relied upon it is important that every officer involved in the investigation review them as soon as possible after the event to ensure that the observations or actions attributed to them have been accurately recorded.

[61]      This appears to have occurred in this case. The appellant received disclosure of the typed report concerning the surveillance of his restaurant. The typed notes were a copy of the handwritten notes. The fact that the additions or deletions on the handwritten notes are not shown on the typed copy does not mean that the quality and adequacy of the central notes is lacking.

[62]      After reviewing the central notes, the officers made separate notes of their own participation. The officers involved that day testified and each testified that he had an independent recollection of the events in question. Each officer was subject to cross-examination.

[63]      In the circumstances, the trial judge did not err in placing little weight on the lost handwritten central notes.