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ULCC Witness Confrontation Working Group 2018 Report Final

WITNESS CONFRONTATION AND SECTION 9 OF THE CANADA EVIDENCE ACT – REPORT OF THE WORKING GROUP (2018)

 

Contents

I: Introduction

II: Witness Confrontation Rationales and Critiques
a) Historical Context
b) Legal Context
c) Rule Against Cross-Examining One’s Own Witness and Its Exceptions 
d) Critiques of Existing Exceptions (Section 9 and Common Law Hostility) 
i. Threshold Issues 
ii. The Scope of Cross-examination that Subsection 9(2) Permits is Unclear
iii. We Simply Ignore Part of the Section
iv. Cumbersome and Confusing Common Law Procedure 
v. Section 9 Says Nothing about Whether Courts Can Review the Whole Prior Inconsistent Statement

III: Jurisdictional Scans

a) Introduction 
b) United States
i. Summary
ii. Attacking Witness Credibility 
iii. Hostility and Adversity: The Power to Pose Leading Questions
iv. Common-law Limitations to Impeachment
c) The United Kingdom
i. England and Wales
ii. Scotland 
d) New Zealand
i. General Provisions Related to Adverse/Hostile Witnesses 1
ii. Relationship between Confrontation and the Admissibility of Out-of-Court Statements
iii. Impeaching A Party’s Own Witness 
iv. Summary
e) Australia 
i. Australian Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory
ii. Queensland, Western Australia, and South Australia

IV: Analysis and Recommendations 

a) General Concerns and Broad Goals 
b) Initial Impressions of the Laws in Other Jurisdictions
c) Recommendations 
i. Circumstances Permitting Cross-Examination of One’s Own Witness 
ii. Scope of Cross-Examination
iii. ULCC Civil Section and Provincial Evidence Acts
d) What We Considered Recommending and Dismissed
e) Topics for Further Consideration
i. Presumptive Admissibility?
ii. Abrogating hostility and adversity

V: Concluding Remarks 

 

I: Introduction

 

1. Catherine Cooper, Counsel, Ministry of the Attorney General, Ontario.
2. Isabelle Doray, prosecutor, Directeur des poursuites criminelles et pénales, Quebec
3. Jessyca Greenwood, Criminal Lawyers’ Association, Toronto, Ontario
4. Fraser M. Kelly (chair), General Counsel, Ministry of the Attorney General, Ontario
5. Joanne Klineberg, Justice Canada, Ottawa, Ontario
6. Nadine Nesbitt, Senior Policy Counsel, Alberta Prosecution Service
7. Lorne Phipps, Crown Counsel, British Columbia Prosecution Service
8. Kevin Westell, Canadian Bar Association, Vancouver, British Columbia

II: Witness Confrontation Rationales and Critiques

a) Historical Context

b) Legal Context
 

• Past recollection recorded
• Present memory revived
• Transcripts and depositions

c) Rule Against Cross-Examining One’s Own Witness and Its Exceptions
 

• Loyalty. Historically, our law has presumed that witnesses usually have a bias towards the party calling them and that they will too readily adopt suggestions put to them by counsel who acts for the party that called them rather than testifying in accordance with their true recollection. While this will be true in many cases, often there is little choice but to call even disreputable or antagonistic persons as witnesses “because they are the only possible witnesses to whatever it is that occurred.”¹⁵​

• Intimidation. Here, the concern is that lawyers will come to know their own witness so well that they are “apt to have inside knowledge of discreditable or contradictory information that can be held over the witness to intimidate the witness into testifying falsely in favour of the party who called the witness.”¹⁶ In reality, rarely do lawyers know their own witnesses so well that they could intimidate in this way even if so minded. More fundamentally, however, this cynical theory is premised on the notion counsel will suborn perjury by implied or direct threat.
• Selective Presentation. Here, the concern is that skilful use of leading questions of one’s own witness will permit lawyers to control the narrative to the point that important aspects of what a witness would otherwise say will never emerge and the trier will be misled. In other words, lawyers will have the ability to ask leading questions “in such a manner as to extract only so much of the evidence that would be favourable to their side and skew the fact finding process by presenting but part of the relevant evidence.” In modern times, this concern is addressed by disclosure obligations and broad powers of cross-examination “in relation to matters not touched upon in chief, whether it be a topic directly related to the facts in issue or a point going solely to the witness’s credibility.”¹⁷
• Voucher theory. The theory is not rooted in a risk that leading questions may taint the quality of a witness’ evidence. Rather, under this theory, litigants vouch for their witnesses’ evidence. If that is so, using leading questions to undermine credibility should be unnecessary. It is now widely accepted, however, that counsel, including the Crown, who cannot control what witnesses choose to say, are entitled to invite the jury to be selective as to what part or parts of the evidence of any witness they should choose to believe.¹⁸

d) Critiques of Existing Exceptions (Section 9 and Common Law Hostility)
 

III: Jurisdictional Scans

a) Introduction

b) United States

  Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

611 (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified
with an adverse party.
________________________________________________________________________
⁴⁰ Federal Rules of Evidence, Rule 607, available online courtesy of Cornell: <https://www.law.cornell.edu/rules/fre>.


The section preserves the need to have witnesses declared hostile or be declared an adverse party or as being “identified with” an adverse party. The section does not define these terms however – so they have been defined judicially. In her article, “Federal Rules of Evidence 611(c): Leading a Witness on Direct Examination”, Christina Kang summarizes concepts and case-law pertaining to the definitions of hostile and adverse parties.⁴¹

Adverse parties and those associated to an adverse party? Ms. Kang notes that there has not been much debate in the courts as to who is an adverse party (generally the other side in litigation), but indicates that determining whether a witness is associated with an adverse party like a corporation, can be more difficult.⁴²  Examples of associated adverse parties have included former and current employees⁴³, romantic partners⁴⁴, and in some cases, expert witnesses.⁴⁵

Hostile? Ms. Kang defines a hostile party as one where his or her “actual hostility, bias or reluctance to testify can be demonstrated to the trial court’s satisfaction.” Hostility has not been defined with absolute certainty. Merely offering evidence contradicting a party is not enough to constitute a finding of hostility.⁴⁶  However, having aligned sympathies with an adverse party or being unwilling to share knowledge is sufficient.⁴⁷

iv. Common-law Limitations to Impeachment

Despite a broad ability to impeach one’s own witness, there are other policy-related rules under the laws of evidence that constrain the ability to do so, none of which are directly relevant to the current inquiry.⁴⁸
________________________________________________________________________
⁴¹ Christina J. Kang, “Federal Rule of Evidence 611(c): Leading a Witness on Direct Examination” (2009) 17(3) Proof 1.
⁴² Ibid at 7.
⁴³ Perkins v. Volkswagen of Am Inc, 592 E 2d 681 (5th Cir 1979); Chonich v. Wayne County Community College 874 F 2d 359 (6th Cir 1989).
⁴⁴ United States v Hicks, 748 F 2d 854 (4th Circ 1984).
⁴⁵ Leskin v. Pottsville Hosp Civil Action No 87-2487, 1991 US Dist Lexis 6842.
⁴⁶ Hickory v. US, 141 US 303 (1894) at 309;
⁴⁷ Kang, supra at 17.
⁴⁸ These limitations include the collateral facts rule, the need to have a good faith basis to ask questions in cross-examination for the purposes of impeachment, and the requirement that the questioner lay a foundational questions before asking about prior statements. See K.S. Broun et al., McCormick on evidence, 6th ed (St. Paul, MN: Thomson/West, 1999) at pages 157-169 and 232-238.

 

c) The United Kingdom

In examining the UK, our group considered the approaches taken in England and Wales, and Scotland.

i. England and Wales

The rules governing witness confrontation in England and Wales are set out in the Criminal Procedure Act 1865 and the Criminal Justice Act 2003.

Section 3 of the Criminal Procedure Act uses language similar to subs. 9(1) of the CEA.

Criminal Procedure Act 1865

Section 3: How far a witness may be discredited by the party producing

A party producing a witness shall not be allowed to impeach his credit by general evidence
of bad character; but he may, in case the witness shall in the opinion of the judge prove
adverse, contradict him by other evidence, or, by leave of the judge, prove that he has
made at other times a statement inconsistent with his present testimony; but before such
last-mentioned proof can be given the circumstances of the supposed statement, sufficient
to designate the particular occasion, must be mentioned to the witness, and he must be
asked whether or not he has made such statement.

For section 3 to apply, the witness must be found by the judge to be hostile. While the common law does make a distinction between an “unfavourable” witness and a “hostile” one, the threshold to be found hostile appears to be lower than what is suggested in Canadian law.

“Hostile” means, “not desirous of telling the truth to the Court at the instance of the party calling him.”⁴⁹

In R. v. Jobe,⁵⁰ the Court of Appeal held that hostility may be demonstrated by the witness’ manner and demeanour alone, by refusing to answer questions or repeatedly saying “I cannot remember”, or by inconsistency between the witness’ evidence and a prior statement. The inconsistency does not have to be a “flat contradiction”, but the judge must decide “whether the proposed evidence has a tendency to contradict or be inconsistent with the witness’ present statement.”⁵¹  

Once a witness is declared hostile pursuant to section 3, the party calling the witness can cross-examine the witness on the previous statement.
________________________________________________________________________
⁴⁹ Stephen’s Digest of the Law of Evidence approved by Court of Appeal in R v. Prefas and Pryce 86 Cr. App. R. 111.
⁵⁰ R. v. Jobe [2004] EWCA Crim 3155 at para 63.
⁵¹ Ibid at para 66.


In sharp contrast to the law in Canada, if the witness does not admit the truth of the previous statement, section 119 of the Criminal Justice Act 2003 allows the previous statement to be entered as evidence for the truth of its contents.⁵²

If evidence is admitted under section 119, the jury must be given a warning as to how to weigh the evidence in the previous statement with the evidence provided by the witness on the stand, and how the inconsistencies may be used to assess credibility. 

Some cases indicate there is confusion about when to use a statement to refresh a witness’ memory, when to use it as past recollection recorded, and when to use it to show a witness is hostile and then enter the statement as evidence pursuant to section 119.

ii. Scotland

Scottish practice is governed by the common law and the Criminal Procedure (Scotland) Act 1995. The issue of hostile witnesses does not occur in Scotland. Cross-examination on a prior statement is permitted by either party when it is “different” on a pertinent issue from the witness’ testimony.

A prior statement can be put to a witness in three main scenarios:
 

• The witness is unable to recall events but acknowledges that a statement was made to police and was true (past recollection recorded).
• The previous statement is contained in a document and the witness indicates the statement was made by him and he adopts it as his evidence (section 260 Criminal Procedure (Scotland) Act 1995).
• The witness gives evidence different from his previous statement (section 263(4) Criminal Procedure (Scotland) Act 1995).

In the first two situations the statement can be entered as evidence for the truth of its contents. In the third situation, where the witness does not adopt the contents of the previous statement, it can only be used for credibility and reliability purposes.⁵³ 

The overlap between the three scenarios causes some confusion for criminal law practitioners in Scotland, especially when determining what use can be made of the previous statement.
________________________________________________________________________
⁵² See R. v. Gibbons [2008] EWCA Crim 1574 at para. 11 where the Court of Appeal states section 119 comes into play principally when a witness maintains that the contents of a prior statement are not true. The big change made by section 119 was to permit the jury to rely upon the prior statement, albeit that the witness in evidence declines to adopt it or goes further and says that it is not true.
⁵³ Judicial Institute for Scotland, Jury Manual 2015, chapter 23.

 

d) New Zealand
 

i. General Provisions Related to Adverse/Hostile Witnesses

In New Zealand, the rules for confronting a party’s own witness have been reformed in the Evidence Act 2006 (the “Evidence Act”), a comprehensive codification of the law of evidence. Cross-examination of “hostile” witnesses is permitted under section 94, which provides that:

In any proceeding, the party who calls a witness may, if the Judge
determines that the witness is hostile and gives permission, cross-examine
the witness to the extent authorised by the Judge.

Relative to the Canadian approach, the definition of “hostile” is fairly liberal.  “Hostile” is defined in section 4 of the Evidence Act as meaning, in relation to a witness, that the witness:

(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence
unfavourable to the party who called the witness on a matter about which the
witness may reasonably be supposed to have knowledge; or

(b) gives evidence that is inconsistent with a statement made by that witness in a
manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party
who called the witness; or

(c) refuses to answer questions or deliberately withholds evidence.

ii. Relationship between Confrontation and the Admissibility of Out-ofCourt Statements

The impact of adopting this relatively low standard of “hostility” is particularly significant when considered alongside other changes to the definition of hearsay. A “hearsay statement” is defined in section 4 of the Evidence Act, as a statement that:

(a) was made by a person other than a witness; and

(b) is offered in evidence at the proceeding to prove the truth of its contents.

A hostile witness is still a witness in a proceeding, and consequently under the provisions of thev Eidence Act their previous out-of-court statements are no longer considered hearsay. Put another way, the practical effect of this change, when paired with section 94, is to make previous statements of a hostile witness potentially admissible as proof of their contents without being adopted by the witness.
 
These statements are ‘potentially’ admissible because they are still subject to a general exclusionary rule in section 8 which provides:

(1) In any proceeding, the Judge must exclude evidence if its probative value is
outweighed by the risk that the evidence will— 

(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the
risk that the evidence will have an unfairly prejudicial effect on a criminal
proceeding, the Judge must take into account the right of the defendant to offer
an effective defence.

iii. Impeaching A Party’s Own Witness

Previous to the introduction of the Evidence Act, there was a general rule that the Crown should not call a witness if that witness is known to be “intractably hostile”⁵⁴. In R. v. O’Brien, the court of appeal explained that the reason for that common law principle was:

... the undesirability of the Crown calling a Crown witness known to be hostile with
the intention of using him or her as a conduit through which to introduce a prior
statement which would be otherwise inadmissible evidence [because it was
hearsay].⁵⁵

In Morgan v. The Queen, [2010] NZSC 23 [“Morgan”], the Supreme Court of New Zealand revisited this common law rule and held that the Evidence Act had materially changed the law because a previous statement of a hostile witness is no longer hearsay. Such a statement is now admissible as proof of its content, unless section 8 otherwise applies. The Court in Morgan goes on to quote, with approval, the following passage of Asher J. in R. v. Vagaia [“Vagaia”]:

… the primary rationale for the principle set out in R v O’Brien, being the
undesirability of calling a hostile witness to introduce a previous inconsistent
statement that is not admissible as evidence of the truth of the facts stated, no
longer exists. The effect of the new definition of hearsay is that such a statement
can now be evidence of the truth of the facts stated. I would not, however, go so
far as to say that R v O’Brien no longer has any application. There may still be
circumstances where because of a witness’ intractability or history of hostility or
dishonesty, the Crown should not call that witness, providing that appropriate notice
and details of the witness are given to the defence. To call such a witness might
be to adduce blatantly unreliable evidence of little probative value but
considerable prejudicial effect.⁵⁶
________________________________________________________________________
⁵⁴ R v Vagaia [2008] 2 N.Z.L.R. 516 (H.C.) at para. 7. This general rule is not the law in Canada: See footnote 68.
⁵⁵ R v O’Brien, [2001] 2 N.Z.L.R. 145 (C.A.) at para. 21, per Tipping, Williams and Goddard JJ.
⁵⁶ Vagaia, at para. 15.


iv. Summary

New Zealand has adopted a liberal interpretation, relative to the Canadian standard, of what constitutes a “hostile witness” and will generally permit crossexamination by the party who has called such a witness. The impact of this provision is magnified by the broader approach taken to the definition of hearsay. The effect of these changes is to make previous statements of a hostile witness admissible as proof of their contents without adoption, subject to the general exclusionary rule contained in section 8 of the Evidence Act.
 

e) Australia

i. Australian Commonwealth, New South Wales, Victoria, Tasmania, the
Australian Capital Territory and the Northern Territory

On January 1, 1995, the Australian Commonwealth and New South Wales each brought into force an Evidence Act 1995. These are sometimes referred to as the Uniform Evidence Acts. They were largely identical and were based on a draft bill prepared by the Australian Law Reform Commission. Similar legislation followed in some of the other states and territories: Victoria, Tasmania, the Australian Capital Territory and the
Northern Territory. 

The principal provision relevant to witness confrontation is section 38 (“Unfavourable Witnesses”). Leading questions are dealt with in section 37, which has been interpreted as reflecting the common law.⁵⁷  The equivalent provisions in the legislation of each of those jurisdictions either mirror or are substantially equivalent to the Commonwealth version of sections 37 and 38, according to the Australian AttorneyGeneral’s Department Uniform Evidence Act comparative tables.⁵⁸  Therefore the following discussion will refer only to the Evidence Act 1995 (Cth).⁵⁹  The remaining states (Queensland, Western Australia and South Australia) will be dealt with briefly following that.
________________________________________________________________________
⁵⁷ A. Ligertwood and G. Edmond, Australian Evidence: A Principled Approach to the Common Law and Uniform Acts, 6th ed., Lexis Nexis Butterworths, 2017 at ¶ 7.117. 
⁵⁸ https://www.ag.gov.au/LegalSystem/Pages/Uniform-Evidence-Acts-comparative-tables.aspx
⁵⁹ https://www.legislation.gov.au/Details/C2017C00386


The heart of the witness confrontation issue is dealt with in subs. 38(1) of the Evidence Act 1995 (Cth):

38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness,
as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge
and about which it appears to the court the witness is not, in examination in chief,
making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

This provision does not expressly state what the threshold trigger is that would cause the court to grant leave, but one text has stated that “[a]t a minimum, it is enough that the witness, whatever his or her intent, has merely given unfavourable evidence, that is, evidence that does not favour the party calling the witness, and that evidence will not be probed by the cross-examination of another party.”⁶⁰ Subsection (6) provides that, in
determining whether to give leave under the section, the court is to take into account the matters on which and the extent to which the witness is likely to be questioned by another party.⁶¹  The court is also to determine whether the party gave notice at the earliest opportunity of its intention to seek leave.⁶² Other factors of general application to the granting of leave for any question are provided in subs. 192(2), some of which pertain to efficiency, fairness, and the importance of the evidence. Significantly, wider ranging
cross-examination on matters relevant only to credibility requires a further grant of leave under subsection (3).⁶³ 

At common law, the ability to cross-examine one’s own witness required a declaration that the witness was hostile, which was interpreted as the witness being unwilling to tell the truth.⁶⁴ Thus, section 38 represented a significant change, which was designed to improve the fact-finding process.⁶⁵ Very relevant to the impact of section 38 is the fact that, pursuant to the combined effect of section 38 and subs. 60(1), when a prior statement is proved during witness confrontation, it becomes admissible for the truth of its contents.⁶⁶ 
________________________________________________________________________
⁶⁰ Ligertwood and Edmond, at ¶ 7.122.
⁶¹ Para. 38(6)(b).
⁶² Para. 38(6)(a).
⁶³ Subsection (3) reads: “The party questioning the witness under this section may, with the leave of the court, question the witness about maters relevant only to the witness’s credibility.” See Ligertwood and Edmond at ¶ 7.122.
⁶⁴ Ligertwood and Edmond, at ¶ 7.120.
⁶⁵ Uniform Evidence Law, Report of the Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, December 2005, ALRC 102, 2005 [2005 Report], ¶ 5.69.
⁶⁶ Subsection 60(1) reads: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.”


In 2004-5, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission together undertook a review of the operation of the Evidence Act 1995 and published its report in December 2005. On section 38 generally, the Commissions concluded that on balance, the section was working well:

5.69 The guiding principle under which s. 38 was first recommended – improvement in
fact-finding by enabling a party who calls a witness to challenge unfavourable evidence
by cross-examining that witness – has been upheld by the operation of the section over
the last 10 years. While there has been some criticism of the section, there has also been
strong judicial support, as in the Adam and Milat judgments noted above. On this basis,
the Commissions recommend no change to the section.

Earlier in the report, the Commissions paraphrase the Chief Justice of the New South Wales Supreme Court as saying, in the April 23, 1996 unreported judgment in R. v. Milat that “the effect of section 38 would probably prove to be one of the most worthwhile achievements of the uniform Evidence Acts.”⁶⁷

In considering the impact of section 38, one contextual difference between Australia and Canada is noteworthy. In at least the jurisdictions covered by the 2005 report, the prosecution has a seemingly broader duty to call witnesses than is the case in Canada - any witness whose evidence may assist in determining the truth of the matter, although the prosecution does not need to call a witness whose evidence the prosecutor
considers to be unreliable, untrustworthy or otherwise incapable of belief.⁶⁸  If so, it would make sense that the prosecutor should be able to confront unfavourable witnesses through cross-examination.⁶⁹
________________________________________________________________________
⁶⁷ 2005 Report at ¶ 5.49.
⁶⁸ Whitehorn v. The Queen (1983) 152 CLR 657, 674. In Canada, the prosecution has a discretion
whether or not to call a particular witness, which discretion is subject to review only when exercised for an
oblique or improper motive (R. v. Cook, [1997] 1 SCR 1113).
⁶⁹ Ligertwood and Edmond at ¶ 7.123. 


ii. Queensland, Western Australia, and South Australia

These three states each have a provision in their evidence statutes that deals with how far a party can discredit its own witness. Each provision is somewhat different. On the central question of the ability to cross-examine one’s own witness on a prior inconsistent statement, Western Australia’s statute requires a judicial determination that the witness is hostile.⁷⁰ South Australia’s and Queensland’s statutes use the term
“adverse” rather than hostile.⁷¹

IV: Analysis and Recommendations

a) General Concerns and Broad Goals

As explained in the introduction, and for the reasons contained in Part II, we recommend replacing section 9 of the CEA. Based on the many critiques of our current approach to witness confrontation (canvassed earlier), the working group concluded that our witness confrontation laws as developed under section 9 of the CEA require significant change. Right now, our law is unpredictable in its application and there is no coherent basis upon which to support it. The part in section 9(1) that prohibits contradiction of one’s own witness by other evidence has been written off as a drafting “blunder” and is simply ignored. Canadian provinces disagree on the significance of a finding of adversity (vs. hostility), which is understandable in that the section does not
define adversity or what flows from that finding. Subsection 9(2) has become its own separate code – so it is being used in a way Parliament never intended.⁷²  We currently have two levels of cross-examination – one under subs. 9(2) “as to the statement” and another cross-examination “at large” under subs. 9(1) or after a declaration of adversity at common law. Each step requires a separate and often cumbersome application.

We recognized the following four goals:
 

1. Any change must facilitate and enhance the truth-finding function of the court.
2. Any change should streamline the trial process by particularizing the circumstances that justify relaxing the rule against crossexamining one’s own witness, and clarifying the permissible scope of resulting cross-examination. We suggest that one benefit of a clearer approach is that the spectre of arguments about when cross-examination of one’s own witness is permissible and its scope should diminish. This would streamline trials, make witness confrontation issues more predictable and make resulting verdicts less vulnerable to appeal.
3. We should remove the cumbersome and unworkable elements of our current law.
4. Any change needs to appropriately balance the needs of litigants and fairness to witnesses.

________________________________________________________________________
⁷⁰ Evidence Act 1906, https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a260.html , section 21.
⁷¹ Evidence Act 1929 https://www.legislation.sa.gov.au/LZ/C/A/EVIDENCE%20ACT%201929.aspx, section 27. Evidence Act 1977, https://www.legislation.qld.gov.au/view/html/inforce/current/act-1977-047, section 17.
⁷² A comprehensive examination of legislative debates and committee representations can be found in the “Report of the Commission of Inquiry Into the Wrongful Conviction of David Milgaard – Appendix K Memorandum of Law – section 9(2) of the Canada Evidence Act” at pp. 2581-2591, online:<http://www.publications.gov.sk.ca/freelaw/Publications_Centre/Justice/Milgaard/43-Appendix_K.pdf >.


To accomplish all these goals, we concluded that tweaking section 9 is insufficient. Major overhaul is needed.

We looked to the jurisdictional scan and decided it was best to adopt and adapt some approaches we see abroad. We were also mindful that the legislation from afar may not be easily “imported” because foreign provisions were sometimes enacted as part of a larger “code” – and the mandate of this working group was much narrower in scope.  We were not attempting to address the questioning of all witnesses generally – but rather, we address only confrontation of one’s own witness.

We were concerned about making recommendations that had unforeseen consequences and decided, in some cases, to leave parts of our common law intact completely.
 

b) Initial Impressions of the Laws in Other Jurisdictions

The American rules, being part of a larger body of evidence laws and using language that is substantially different from our concepts, seemed to us to pose too many challenges to use as a model for reform.

The UK experience was of interest to us because their laws often more closely resemble ours. While it appears that their threshold for adversity is lower than ours, and that previous inconsistent statements can be entered for the truth of their contents, which might hold some attraction, there remain areas of confusion and uncertainty under the various UK approaches, such as about how witness confrontation rules interact with other evidentiary doctrines like refreshing memory and past recollection recorded. These models did not suggest a clear path forward.

The group was particularly drawn to aspects of the New Zealand and the Australian Uniform Evidence Act models.⁷³ The main appeal of New Zealand’s approach was its simplicity and its clear definition of the concept of hostility. The Australian approach focuses on the evidence rather than the witness, allowing cross-examination on, amongst other things “unfavourable” evidence, regardless of the intent of the witness. While the Australian approach lacks some of the clarity of New Zealand’s, we liked the flexibility of the concept and the fact that the witness’ motive does not matter if it is otherwise clear their evidence is unfavourable.⁷⁴
________________________________________________________________________
⁷³ In speaking of the Australian Model/approach, we mean the Uniform Evidence Act/Commonwealth approach.
⁷⁴ In Canada, witness motive can impact whether the witness is hostile. We suggest motive should not matter if the witness is otherwise decidedly being unfair. For example, in R. v. Vivar, supra, a Crown witness who testified unfairly was not hostile because the motivation was “out of fear” of the accused not by animus to the Crown.


While the Australian approach had some appeal in that it clearly defines what kind of cross-examination is permitted, on balance we were not drawn to either the New Zealand or Australian approaches to the question of the scope of cross-examination that would be permitted. The New Zealand approach allows cross-examination “to the extent authorised” by the Court. We reject this as it fails to provide the needed clarity to enable the parties to conduct themselves appropriately. The Australian model preserves differing levels of cross examination, which we avoid in the interests of simplicity.

c) Recommendations

We recommend as follows:

1. Section 9 of the Canada Evidence Act should be repealed in its current form
and replaced in accordance with the recommendations that follow.

2. The circumstances in which cross-examination of one’s own witness are
permissible should be clearly defined including:
 

• When the testimony of the witness is meaningfully inconsistent with a previous oral or recorded statement; or
• When it appears that the witness is not making a genuine attempt to remember matters he or she ought reasonably be expected to have some recollection about; or
• When the witness refuses to answer questions or otherwise exhibits, through words or conduct, an intention to be unhelpful to the party that called them; or
• When the witness gives evidence that is unfavourable to the party that called them. [See section (i) below for further detail]

3. We recommend that the section make clear there is only one level of cross-
examination. Where cross-examination is permitted under this section, counsel
should be permitted to question their own witness on all matters as though they
were called by the opposing litigant. Sections 10 and 11 of the Canada Evidence Act
should apply⁷⁵ for the purposes of proving the previous statement and for the use
that can be made of previous statements. [See section (ii) below for further detail]
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⁷⁵ Section 10(1) provides: On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.
Section 11 provides: Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.


i. Circumstances Permitting Cross-Examination of One’s Own Witness
[Re Recommendation #2]

When Testimony Is Inconsistent With a Previous Oral or Recorded Statement. This is not novel. It makes sense that witnesses who testify inconsistently from previous statements may be cross-examined. There are some nuances here:

a) What is a statement? Right now, subs. 9(2) requires inconsistent statements
be reduced to writing or electronically recorded before that subsection applies.
Subsection 9(1), however, has no such limitation, which means that cross-
examination on an oral statement can only be done pursuant to a subs. 9(1)
application. We suggest statement for the purpose of witness confrontation
should include oral statements. Our recommendation removes the
restriction found only in the current subs. 9(2) limiting its operation to cases
where a witness’ statement is written or electronically recorded.

b) What is an inconsistency? Now, subs. 9(2) makes reference to inconsistent
statements but says nothing about the nature of inconsistency that suffices to
trigger operation of the section. We suggest that there should be some limit on
the nature of the inconsistency that triggers cross-examination – that essentially
meaningless inconsistencies on trivial matters should not trigger theability to
cross-examine one’s own witness. We think judges should maintain discretion on
this issue by assessing the nature of the inconsistency. “Material inconsistency”
may be too high as it might introduce a concept (materiality) that has a specific
meaning. An inconsistency may be very significant to a witness’ credibility but not
particularly “material” to a central fact in the case. Thus, inconsistency needs a
qualifier. We are undecided as to the best modifier but agree there needs to be
one. Significant inconsistency? Relevant inconsistency? Meaningful inconsistency?
An inconsistency about an important matter?

When Witness Makes No Genuine Attempt to Remember. The new provision should capture both the witness who professes no recollection about matters they oughtreasonably be expected to have some recollection about and the witness who does not appear to the court to be making a genuine attempt to remember. Right now, courts have applied subs. 9(2) to witnesses who testify that they no longer remember the relevant events even though, technically, the statement “I do not currently remember” is not inconsistent with a prior statement. As developed, cross-examination under subs. 9(2) is permissible once the court concludes a witness is lying about their lack of recollection.  Our recommendation, in contrast, is more expansive in that it also includes witnesses who profess no recollection about matters they ought reasonably be expected to remember. For such witnesses, the judge need not make a finding as to the witness’ motive – a fact that can be impossible to determine.

When Witness Exhibits an Intention to be Unhelpful. Where witnesses refuse to answer questions or exhibit, through words or conduct, an intention to be unhelpful to the party who called them, courts should have the ability to permit a party to crossexamine their own witness. In substance, this is not new.

When Testimony Is Unhelpful to the Calling Party. While witness demeanor may suffice to permit cross-examination, evidence of unfavourable demeanor should not be necessary in all cases. Right now, an adverse witness is one whose testimony advances a position “opposite” to the party who calls them.⁷⁶ Here, the emphasis is on the impact of the evidence on the party that called the witness, and not strictly speaking on the witness’ attitude toward that party. We think “opposite” is potentially too narrow.  We favour the Australian formulation which allows for cross-examination when a judge determines the witness’ testimony is “unfavourable” to the party that called them. In substance, then, permitting cross-examination for witnesses whose testimony is unfavourable to the party that called them is a modest expansion of the status quo.
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⁷⁶ The definitional issues relation to “adversity” and “hostility” are addressed in Part II (i) Threshold Issues.


ii. Scope of Cross-Examination
[Re Recommendation #3]

Our proposed approach removes subs. 9(2)’s limited cross-examination “as to the statement”. Rather, our recommendation is that there be a single scope of crossexamination under section 9, namely cross-examination as though the witness was called by an opposing litigant. We also recommend making clear that sections 10 and 11 of the CEA would apply (as they would be when a witness is called by an opposing litigant)
when putting the previous statement to the witness, as would any corresponding common law and evidentiary rules regarding the use of any previous statements.

In taking this approach we suggest that the current two-stage approach – first obtaining leave to cross-examine as to the statement before obtaining leave to crossexamine “at large” - causes more problems than it solves. For reasons explained earlier (in Part II of this document), our current two-stage approach to cross-examination of one’s own witness protracts proceedings and creates uncertainty, both of which we seek to
avoid.

Regarding the scope of permissible cross-examination we considered including a express provision that would empower judges to control it. We decided that to do so was not required on the basis of three related bodies of law, all of which would continue to operate if our recommended approach is accepted:
 

• Trial judges already have the ability to restrict how cross-examination occurs. Judges already have broad powers to curtail cross-examination that is unduly repetitive, abusive, insulting, overly aggressive, or intended to elicit hearsay or otherwise irrelevant information. etc.
• Further, regarding objectionable content, trial judges already maintain a gatekeeper function to restrict admissibility on the basis of undue prejudice.  Prejudice, it is to be remembered, includes not only moral and reasoning prejudice but also unfairness to the witness and unfair surprise. Reasoning prejudice includes the potential that the evidence in question will consume an inordinate amount of time.⁷⁷
• Last, quite apart from judicial oversight, counsel who are permitted to crossexamine their own witness will likely choose to limit the scope of their crossexamination in many instances for two reasons. First, when faced with an unusually pliable witness, leading the witness on critical issues can impact the weight to be given to their answer.⁷⁸  Further, for tactical reasons counsel will sometimes restrict their cross-examination, choosing solely to bring out or emphasize facts helpful to their position rather than attempting to elicit, by leading or other suggestive questioning, information that casts doubt on the witness’ credibility.

Expressly including reference to sections 10 and 11 is important for another reason. When a witness denies ever having made a prior inconsistent statement, proving what they previously said might offend the collateral facts rule (the common law rule that bars a party from introducing extrinsic evidence for the sole purpose of proving a matter not directly related to an issue in dispute).⁷⁹  By including reference to sections 10 and 11, determining whether the collateral facts rule bars proof of a witness’ prior inconsistent statement is unnecessary because section 10 (cross-examination on previous written or recorded statements) clearly contemplates “contradictory proof”. Similarly, section 11 (cross-examination as to previous oral statements) also expressly contemplates “proof may be given”.
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⁷⁷ R. v. Handy, [2002] 2 S.C.R. 908.
⁷⁸ Moor v. Moor , [1954] 2 All ER 458 (CA); R. v. Williams, (1982), 66 C.C.C. (2d) 234 (Ont. C.A.) see p.236 :“It is clear, however, that an answer elicited by a leading question is entitled to little, if any, weight.”; R. v. Nicholson, 1998 ABCA 290, (1998), 129 C.C.C.(3d) 198 (Alta. C.A.). See also McWilliams’ Canadian Criminal Evidence, 5th ed., supra, at chap. 21:40: Leading Questions may Impact Weight of Evidence.
⁷⁹ The Hon. David Watt, Manual of Criminal Evidence (Toronto: Thompson Reuters, 2017), chapter 22.03.


iii. ULCC Civil Section and Provincial Evidence Acts

Many provincial and territorial evidence laws closely parallel the provisions found in the Canada Evidence Act. While we recognize that federal rules of evidence may apply in many civil contexts, provincial rules often apply. Indeed provincial evidence laws also apply in many quasi-criminal contexts as well. It may be advisable to share this report with the ULCC’s Civil Section for their consideration. They may wish to assess provincial
and territorial laws in this area to determine whether there is a comparable need for reform at that level. We see benefits of harmonizing federal, provincial and territorial laws relating to evidence.
 

d) What We Considered Recommending and Dismissed

We entertained simply repealing section 9 altogether and allowing the form of questioning to be left simply as a matter of judicial evolution and discretion. We decided this approach is not advisable because of the desire to foster certainty and finality in the judicial process. While most of the evidence law in Canada is judge-made rather than legislative, repealing section 9 and leaving it to the courts to develop a replacement
could take significant time and lead to years of uncertainty. Litigants are entitled to know with confidence what is admissible, or not, and when they are wading into or causing appealable error. While absolute precision in legislation is impossible, we think that providing a coherent framework that establishes a fresh, clear and principled rule is to be preferred over leaving the matter entirely to the courts.

We considered recommending enacting a provision that would require lawyers to believe that the witness they call would (not could) say something of relevance. This seemed inadvisable for two reasons. First, we felt that requiring a trial judge to enquire about counsel’s motives in calling witnesses is inconsistent with the proper role of the courts. The second concern is that this approach could undermine the truth-finding function of the courts. Simply, counsel’s motive for calling a completely uncooperative witness, believing they are to lie about everything of substance, may be both ethical and mandatory when counsel anticipates applying to tender a sworn video statement as substantive evidence under the principled approach to the admission of hearsay explained in Khelawon and KGB.⁸⁰ In such circumstances, calling the
uncooperative witness is usually required to establish necessity.⁸¹  The Court retains the ability to curtail abusive trial tactics like in Soobrian where the Court concluded that the Crown called a witness to elicit lies and to prove collusion with the accused.⁸²

We considered retaining the use of terms like Adverse and Hostile. We decided that it would be preferable if the new section 9 not include the terms “adversity,” “adverse witness” or other similar existing concept, such as “hostile.” Even if re-defined, these terms carry historical baggage. To re-define these terms will inevitably lead to future judicial consideration about whether earlier jurisprudence defining them retains any relevance. We recommend that the new provision eliminate the term “adversity” or “adverse witness” or similar concept entirely. It is simpler to define the circumstances when cross-examination is permissible.

Amending the definition of hearsay. We considered the New Zealand model carefully because it had some positive aspects but it also included an amended definition of “hearsay” that is not consistent with the current Canadian definition. We chose not to recommend re-defining hearsay because it arises in so many evidentiary contexts. Any change made for the purpose of confronting one’s own witness could generate unforeseen and unintended consequences in other contexts.
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⁸⁰ R. v. B.(K.G.), [1993] 1 S.C.R. 740; R. v. Khelawon, [2006] 2 S.C.R. 787.
⁸¹ R. v. Glowatski, 2001 BCCA 2499; R. v. M. (D.), 2007 NSCA 296; R v. Mohammad, (2007), 75 W.C.B. (2d) 690, [2007] O.J. No. 4901 (S.C.) at para. 27: “Normally the necessity requirement of the principled approach to hearsay is met by the recantation of the witness.”
⁸² R. v. Soobrian, [1993] O.J. No. 703 (Gen.Div.) (trial ruling); further appeal (1994), 96 C.C.C. (3d) 208 (Ont. C.A).


We considered recommending the enactment of provisions setting out what the trier of fact could receive/review. We considered whether a new Canadian law in this area should specify expressly that triers of fact (judge or jury) are entitled to see the entire inconsistent statement once a witness is confronted with it for the purpose of assessing the weight/significance to be attached to an alleged inconsistency when ultimately determining witness credibility. There will be cases where examining the entire inconsistent statement will help in the fair assessment of overall context and extent of the inconsistency, and, more generally, the appropriate weight to be placed upon any inconsistency.⁸³  On the other hand, in some cases there are risks of misuse or prejudice.  We decided our recommended approach renders this kind of provision unnecessary.  Because we recommend an approach that permits cross-examination “as though they were called by the opposing litigant”, expressly including the use of sections 10 (crossexamination relating to a prior recorded statement) and section 11 (cross-examination as to a previous oral statement), ensures the jurisprudence in relation to the use of prior statements under those sections is maintained and applied.

e) Topics for Further Consideration

i. Presumptive Admissibility?

This issue relates to the use of prior inconsistent statements. Currently, when a witness does not adopt an inconsistent statement, it remains hearsay and is therefore not evidence of the truth of its content unless a party obtains a ruling for substantive admissibility under KGB/Khelawon.⁸⁴  Accordingly, in Canada when a witness is confronted with a prior inconsistent statement, it is presumptively inadmissible for its truth.
Ours is not the approach taken in Australia, New Zealand, England and Wales, where, once confrontation occurs, the statement presumptively may be considered by the trier of fact for its truth. That is, where a witness is cross-examined on a prior statement, the trier of fact is presumptively entitled to receive it and consider the contents of the inconsistent statement for the truth of its content subject to judicial discretion to exclude if admission is unfair. Although we decided against recommending presumptive admissibility (the
approach taken in Australia, New Zealand, England and Wales), some of us think it is a matter that warrants future consideration. 
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⁸³ See R. v. Dorsey, [1997] O.J. No. 349 (C.A.) where the trial judge examined the entirety of a witness’ prior inconsistent statement to assess the extent of the alleged inconsistency. See also R. v. Campbell (1990), 57 C.C.C.. (3d) 200 (Alta. C.A.); R. v. Rodney (1988), 46 C.C.C. (3d) 323 (B.C.C.A.); R. v. Cain, 2018 SCC 20 adopting the majority in 2017 NSCA 96. While these cases addresses cross-examination on
inconsistent statements under section 10 of the Canada Evidence Act, there is no reason the use made of an inconsistent statements under section 9 should be treated differently.
⁸⁴ Supra, note 79.


ii. Abrogating hostility and adversity

Declarations of hostility permit examination at large. Similarly, in at least some provinces, a declaration of adversity accomplishes the same thing. Our recommendations include that there be only one scope for cross-examination, namely, cross-examination as though the witness was called by an opposing litigant. For this
reason, our recommended approach renders both adversity and hostility moot as a practical matter. We leave to drafters to determine whether there is any need to statutorily abrogate the law that is associated with these terms, in particular “hostility” which is a creature of the common law.

V: Concluding Remarks

This working group consists of prosecutors and defence counsel as well as policy counsel both provincial and federal. We see the issues similarly. Confronting one’s own witness is not rare in practice. It occurs daily in courtrooms across Canada. We are using a provision written 160 years ago and nobody likes it. We can find no academic or judicial writing that suggests our current approach is good or coherent. It is unfortunate that after over fifty years of judicial and academic criticism our witness confrontation laws have been permitted to fester for so long. Every other major common law jurisdiction we sampled has been able to revise this area of law with varying degrees of success.  Canada, alone, seems stuck in the distant past. It is time to revise this area of law and the fix suggested is not complicated. What is proposed, we submit, is principled, simple,
practical and fair.