R. v Borden, 2017 NSCA 45
[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.
