Cross-Examination

• Author: Austin M. Cooper, Q.C. and Mark J. Sandier
• Pages: 583-598

Cross-Examination

Austin

M.

Cooper,

Q.C.

and

Mark

J.

Sandier*

A.

INTRODUCTION

There

is a

wealth

of

jurisprudence

on the

permissible scope

of

cross-

examination.

What follows

are

brief

summaries

of

some leading cases

respecting several

of the

important issues that arise

in the

conduct

of

cross-examinations

in

criminal cases. Some

of the

principles articulated

in

these cases also have application

in the

civil context.

B.

THE

EVIDENTIARY

FOUNDATION

FOR

CROSS-EXAMINATION

R. v.

Lyttle

(2002),

167

C.C.C.

(3d)

503

(Ont.

C.A.),

application

for

leave granted

23

January

2003

The

trial judge ruled that certain

questions

could only

be put to

Crown

witnesses

by the

defence

if an

undertaking

was

given

to

call evidence

to

give

factual

support

to the

implications raised

by the

questions.

Reliance

was

placed

by the

trial judge

on the

evidentiary directive

of

Lamer

J. (as

he

then was)

in R. v.

Howard

(1989),

48

C.C.C. (3d)

38

(S.C.C.)

that

"it is

not

open

to the

examiner

or

cross-examiner

to put as a

fact,

or

even

a

*

Of

Cooper,

Sandier

&

West.

583

584

AUSTIN

M.

COOPER,

Q.C,

AND

MARK

J.

SANDLER

hypothetical

fact,

that which

is not and

will

not

become part

of the

case

as

admissible evidence."

• The

trial judge

was in

error.

Howard

is a

sensible rule when applied

to

expert evidence, which must

be

based

on

facts

that

are

proven

in

evidence.

Howard

was not

intended

to

overrule well-established

authorities such

as R. v.

Bernardino

and

DeCarlo

(1973),

15

C.C.C. (2d)

342

(Ont.

C.A.),

which approved

the

rule that

"[a]n

advocate

is

enti-

tled

to use his

discretion

as to

whether

to put

questions

in the

course

of

cross-examination

which

are

based

on

material

which

he is not in

a

position

to

prove directly."

•

However,

as

noted

by

Morden J.A.

in R. v. D.

(C.)

(2000),

145

C.C.C.

(3d)

290

(Ont. C.A.)

at

317-18,

while there

may not be

"illegality"

as

per

Bencardino

in a

question, counsel

may

enter into

a

problematic

area

of

ethical responsibility,

as

"[i]t

is a

breach

of

professional ethics

for

counsel

to

'knowingly

assert something

for

which there

is no

rea-

sonable basis

in the

evidence,

or the

admissibility

of

which must

first

be

established.'

...

Professional ethics

are

involved because

the

stat-

ing of

facts

for

which

there

is no

foundation can,

depending

on the

circumstances,

be

unfair

and

affect

the

fairness

of the

trial process."

• A

broad application

of the

Howard

direction would also

be

contradic-

tory

of the

collateral evidence rule, since

the

cross-examiner

is

barred

from

adducing evidence

to the

contrary

on

collateral issues.

C.

APPLICATION

OF THE

RULE

IN

BROWNE

v.

DUNN

R. v.

Henderson

(1999),

134

C.C.C.

(3d)

131

(Ont. C.A.)

The

accused

was

charged with sexual assault.

The

defence

was

consent.

The

complainant

had

spraypainted "You Rapist"

on the

accused's trail-

er,

and the

accused's complaint

to

police resulted

in the

investigation

leading

to

this charge. Crown counsel cross-examined

the

accused

in a

number

of

areas alleged

to be

improper

and

unfair.

•

Crown counsel sought

an

explanation

from

the

accused

for

defence

counsel's

alleged violation

of the

rule

in

Browne

v.

Dunn (i.e.,

if

coun-

sel is

going

to

challenge

the

credibility

of a

witness

by

calling contra-

dictory evidence,

the

witness

must

be

given

the

chance

to

address

the

contradictory

evidence

in

cross-examination, while still

in the

wit-

ness box).