R. v. Lyttle, 2004 SCC 5, [2004] 1 SCR 193

R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5

Michael Garfield Lyttle                                                                                   Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Lyttle

Neutral citation:  2004 SCC 5.

File No.:  29412.

2003:  October 17; 2004:  February 12.

Present:  McLachlin C.J. and Major, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for ontario

Criminal law — Evidence — Witnesses — Cross-examination — Right of accused to cross-examine prosecution witnesses — Whether counsel must provide evidentiary foundation for cross-examination or whether good faith basis sufficient for raising questions.

Criminal law — Procedural unfairness at trial — Curative proviso — Defence counsel obliged to call police investigators as her own witnesses against her wishes and to forfeit statutory right to address jury last — Whether resulting trial unfairness could be saved by applying curative proviso — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (b)(iii).

The victim was severely beaten by five men.  He claimed that he had been beaten over a gold chain but two police officers stated in separate reports, which were disclosed to the defence, that they believed the attack was related to a drug debt.  The victim identified the accused in a photographic line-up.  The defence theory was that the beating related to an unpaid drug debt and that the victim had identified the accused as his assailant to protect the real offenders – his associates in a drug ring.  The Crown did not intend to call the officers as witnesses.  In a voir dire and repeatedly at trial, the trial judge stated that defence counsel could only proceed with her proposed cross–examination of the Crown’s witnesses if she provided substantive evidence of the drug debt theory.  Defence counsel called the officers and the accused lost his statutory right to address the jury last.  The defence did not present any other evidence.  The accused was convicted of robbery, assault causing bodily harm, kidnapping and possession of a dangerous weapon.  In affirming the convictions, the Court of Appeal held that the trial judge had erred in requiring defence counsel to call evidence in support of her drug debt theory but that the verdict could be saved by resort to s. 686(1)(b)(iii) of the Criminal Code .

Held:  The appeal should be allowed and a new trial ordered.

The trial judge unduly restricted the right of the accused to conduct a full and proper cross-examination of the principal Crown witness.  The accused was not required to undertake to call evidence to support his drug debt theory as a condition for permitting the cross-examination.  The right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence.  The right of cross-examination, which is protected by ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms , must be jealously protected and broadly construed.  A question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question.  It is not uncommon for counsel to believe what is in fact true without being able to prove it otherwise than by cross-examination.  “A good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used.  The information may fall short of admissible evidence and may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false.  The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition and there is no requirement of an evidentiary foundation for every factual suggestion put to a witness in  cross-examination.  Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may seek assurance that a good faith basis exists for the question.  If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness.  In this case, the existence of a good faith basis for the defence’s drug debt theory had become apparent over the course of the two voir dires.  The trial judge erred in law by requiring an evidentiary  foundation for the cross-examination.

The trial judge’s error cannot be cured by resort to s. 686(1)(b)(iii) of the Code.   The ruling had an intimidating effect on defence counsel, disrupted the rhythm of her cross-examinations, and manifestly constrained their scope.  It obliged defence counsel to call police investigators as her own witnesses against her wishes.  The Crown was permitted  to cross-examine its own officers and the accused was found to have forfeited his statutory right to address the jury last.  This had a fatal impact on the fairness of the trial.  It cannot be said that in the absence of the trial judge’s error, there is no reasonable possibility that the verdict would have been different and it would be wrong in these circumstances to apply the curative proviso.

Cases Cited

Explained:  R. v. Howard, [1989] 1 S.C.R. 1337; Browne v. Dunn (1893), 6 R. 67; disapproved:  R. v. Fiqia (1993), 145 A.R. 241; R. v. Fickes (1994), 132 N.S.R.

(2d) 314; referred to:  R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Cook, [1997] 1 S.C.R. 1113; R. v. Bencardino (1973), 15 C.C.C. (2d) 342; R. v. Krause, [1986] 2 S.C.R. 466; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C. (3d) 374; R. v. McLaughlin (1974), 15 C.C.C. (2d) 562; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58; Michelson v. United States, 335 U.S. 469 (1948); R. v. Norman (1993), 16 O.R. (3d) 295; Palmer v. The Queen, [1980] 1 S.C.R. 759; Rondel v. Worsley, [1969] 1 A.C. 191; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Anandmalik (1984), 6 O.A.C. 143; R. v. Wallick (1990), 69 Man. R. (2d) 310.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 7 , 11( d ) .

Criminal Code , R.S.C. 1985, c. C-46 , ss. 651(3) , 686(1) (b)(iii).

Authors Cited

Brauti, Peter M.  “Improper Cross-Examination” (1998), 40 Crim. L.Q. 69.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed.  Toronto:  Butterworths, 1999.

APPEAL from a judgment of the Ontario Court of Appeal (2002), 61 O.R. (3d) 97, 167 C.C.C. (3d) 503, 4 C.R. (6th) 1, 163 O.A.C. 33, [2002] O.J. No. 3308 (QL), affirming a judgment of the Superior Court of Justice.  Appeal allowed.

David M. Tanovich, for the appellant.

Shelley Hallett, for the respondent.

The judgment of the Court was delivered by

Major and Fish JJ. —

I.  Introduction

1                                   Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.  At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

2                                   That is why the right of an accused to cross-examine witnesses for the prosecution — without significant and unwarranted constraint — is an essential component of the right to make full answer and defence.

3                                   The Court of Appeal found in this case that the trial judge had unduly restricted the right of the accused to conduct a full and proper cross-examination of the principal Crown witness.  We agree with that finding. 

4                                   We agree as well that the judge’s error resulted from his understandable misapplication of this Court’s decision in R. v. Howard, [1989] 1 S.C.R. 1337. The trial judge considered that he was bound by Howard to require the appellant to “follow up with substantive evidence” every factual hypothesis defence counsel intended to put to a Crown witness in cross-examination.  As the Court of Appeal made plain, this is not the law:  Howard did not purport to change the well-established rule in this regard, and should not be understood to have added an evidentiary burden to the requirement of good faith that has long been considered the governing standard.

5                                   The Court of Appeal nonetheless concluded that the judge’s misapplication of Howard could be cured by resort to the harmless error proviso of s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 .

6                                   With respect, we have reached a different conclusion. 

7                                   First, because the trial judge’s impugned ruling had an intimidating effect on defence counsel, disrupted the rhythm of her cross-examinations, and manifestly constrained their scope. 

8                                   Second, because the ruling obliged defence counsel, against her wishes, to call police investigators as her own witnesses.  The Crown was then permitted  to cross-examine its own officers — while the appellant, having been obliged by a mistaken ruling to call them, was found to have thereby forfeited his statutory right to address the jury last.

9                                   In this latter regard, we do not think it necessary to consider here afresh whether it is generally an advantage to have the last word.  Many able and experienced counsel — and others — certainly take that view.  Moreover, the defence, where it calls no witnesses, is given that right by s. 651(3)  of the Criminal Code .  Here, the defence wished to exercise that right and was prevented from doing so by the judge’s erroneous ruling in law. 

10                               For these reasons and those that follow, we have concluded that the trial judge’s misapprehension of the governing principles of cross-examination had a fatal impact on the conduct of the defence and on the fairness of the trial.

11                               In our respectful view, the appeal should therefore be allowed and a new trial ordered.

II.  Facts

12                               On February 19, 1999, Stephen Barnaby was viciously beaten by five men with baseball bats, four of them said to have been masked.  He was found outside an apartment building, collapsed, shivering, with broken bones and with other severe injuries to his head and legs.  He had no wallet, no house keys and no identification. 

13                               Barnaby told a uniformed officer, with whom he spoke briefly soon after the attack, that he had been beaten over a gold chain. 

14                               Detective Sean Lawson, initially assigned to the case, stated in his “Occurrence Report” that the attack was believed to be over a drug debt and the victim was being less than truthful.  His suspicion in this regard was based on a conversation with Barnaby at the hospital, on the ferocity of the beating, on the fact that Barnaby had a drug-related conviction, and on other elements of Detective Lawson’s own preliminary investigation.

15                               On the following morning, referring to the Barnaby attack  in his “Daily Major” report summarizing all serious crimes that had occurred during his shift, Detective-Sergeant Ian Ganson wrote: “believed to be [over] a drug debt [. . .] further inquiries”. Ganson, it should be noted, never spoke directly with Barnaby.  He merely relied, in the usual way, on information he had received from subordinate investigators and uniformed officers.

16                               Lawson’s “Occurrence Report” and Ganson’s “Daily Major” report were disclosed to the defence in a timely manner, as required by law.  See R. v. Stinchcombe, [1991] 3 S.C.R. 326.

17                               Detective Michael Korb and his partner,  Detective Martin Ottaway, took over the investigation the day after the attack and obtained a statement from Barnaby at the hospital.  Korb and Ottaway were aware of the “drug deal gone bad” theory mentioned by Lawson and Ganson, but both testified that it did not influence their investigation.  Unlike Lawson and Ganson, Korb and Ottaway believed Barnaby’s version of the assault and the reasons for it.

18                               Barnaby, at a photographic line-up, identified the appellant as the unmasked attacker.

III.  Proceedings Below

A.  Ontario Superior Court of Justice

19                               The appellant’s trial commenced, before judge and jury, on October 21, 1999.

20                               Crown counsel was  aware, from pre-trial discussions, of the defence theory that Barnaby’s beating related to an unpaid drug debt and that he had identified the appellant as his assailant to protect the real offenders — his associates in a drug ring.

21                               Before opening his case, Crown counsel urged the trial judge to prohibit cross-examination along these lines in the absence of the “required” evidentiary foundation.  In support of its position, the Crown relied on Howard, supra, and stated that neither Lawson nor Ganson would be called as Crown witnesses.

22                               Throughout the ensuing  voir dire, the trial judge made it clear that, on his view of the law, the defence could only proceed with its proposed cross-examination if it provided “substantive evidence” of its “drug debt” theory.  The following exchange is illustrative:

THE COURT:  She is under no obligation at this point to advise as to the nature of her defence or what evidence she intends to call, but the law is quite clear that if you are making an allegation of that nature and of that substance, that you are required then to commit to leading some evidence in that regard.  Is that your intention, madam, or . . . . 

MS. ROBB [Defence counsel]:  Your . . . Honour, my friend’s well aware of the evidence.  I didn’t dream this up on my own.  The investigating officers, within moments at arriving at the scene, checked CPIC and made notations to the effect that they didn’t believe this was over a gold chain.  They believed it was over a drug deal gone bad.  That’s where this came from, from the Crown’s disclosure. [Emphasis added.]

23                               When defence counsel refused to give an undertaking to present an evidentiary foundation for the proposed cross-examination, the trial judge repeated the constraint he was placing on the cross-examination of Crown witnesses:

MS. ROBB:  Well, I mean you have to see my position, Your Honour.  I can’t investigate, prosecute, and prove Mr. Barnaby’s a drug dealer.  I’m not in a position to do that.  The defence theory is that this man made up Mr. Lyttle as the attacker to protect himself from the people that beat him up because he didn’t pay the money for drugs.  That’s the defence theory.

THE COURT:  Well, he can give that evidence, not — you have no obligation to tell us whether you are calling him or not.  But I can only tell you the law is that if you are going to make those allegations by cross-examining, in the course of cross-examination of the Crown witnesses, you had better follow up with substantive evidence.  That is the law. [Emphasis added.]

24                               In his preliminary ruling, later often repeated, the trial judge warned defence counsel that there was a danger of a mistrial if she put the “drug debt” allegations to the Crown witnesses and then failed to provide what he considered to be the necessary evidentiary support:

[THE COURT]:  The answer is, if you are indicating that the questions are necessary to your defence, and that you will comply with the rule in R. v. Howard, and cases going back as far as Browne and Dunn, then I will certainly allow you to ask them, but there better be the follow-up at some point down the road.

MS. ROBB:  All right.  At this point when the Crown calls its first witness, regardless of follow-up, am I allowed to ask about the CPIC?

THE COURT:  Yes. Certainly.

MS. ROBB:  So, the only question you’re saying I can’t ask is to the victim?

THE COURT:  I am not — no, you misunderstood me entirely.  I am not saying you can or cannot ask any questions.  It is your case, it is your defence, you conduct it as you see fit.  I am just saying that there will be strict adherence to the rules of evidence, which require that if you ask a question of the nature we have discussed, that, at some point, you are required to produce some foundation or substantive basis for asking that question.  You cannot simply pick out of the air an allegation of that nature and hope that it will persuade the jury.  There has to be factual underpinning for it.  And that if it comes later in the trial, fine, no problem . . . .

                                                                   . . .

. . . you have done your duty.

                                                                   . . .

But if it does not come, then you are subject to an application by the Crown for a mistrial.  [Emphasis added.]

25                               Later that same day, the submissions on the defence theory continued.  The trial judge settled the issue by reiterating his previous ruling:

[THE COURT]:  All right, we are going to handle this in the same way we are handling the other issue that we discussed at length this morning.  You will be permitted to ask those questions.  If you fail to follow-up, and under the R. v. Howard case you are obligated to, I presume by now you have read it.  I will quote, just to deal with that issue briefly, from page [1347] of the Judgment by Mr. Justice Lamer where he says quite clearly:

“It is not open to the examiner or cross-examiner to put as a fact, or even a hypothetical fact, that which is not and will not become part of the case as admissible evidence.”

MS. ROBB:  Okay, Your Honour . . . .

THE COURT:  So, there is your directive.  If you fail to abide by that directive, there will be consequences. [i.e., a mistrial] . . . .

26                               Near the end of the examination-in-chief of Ottaway, the second Crown witness, defence counsel expressed concern over the trial judge’s ruling and raised the issue of a mistrial.  In the absence of the jury, Ms. Robb indicated that she intended to pursue the “drug debt” theory in cross-examination and sought reassurance that in the event the Crown did ask for a mistrial, she would be permitted to address the court.  The trial judge confirmed that the defence would be given such an opportunity and stated:

THE COURT:  . . . You will be permitted to ask whatever questions you think are relevant to the defence of your client, and I will simply apply the rules of evidence, if, at some later [time] in the trial, you do not produce substantive evidence to – which, looking back, would have warranted that question and that suggestion to the witness.  Now, we are going to leave it at that.  We are going to bring the jury in.  Let us get on with the trial.

I ask you, before they come in, Ms. Robb, to simply read the decision of Mr. Justice Darichuk in the Manitoba . . . Queen’s Bench [R. v. Evans (1994), 93 Man. R. (2d) 77]. . . .  He quite clearly says:

“Does the right of cross-examination encompass the right to assert specific factual suggestions without confirmation from counsel that the matters suggested are or will be part of his or her case, and that evidence will be led on that subject?  I think not.”

27                               The issue of the foundation for the defence theory arose again during the cross-examination of Ottaway.  In order to avoid the possibility of a mistrial  should defence counsel not abide by his ruling, the trial judge conducted a second voir dire, this time to determine the nature of the facts that would in his view warrant defence counsel’s proposed cross-examination.  Ottaway and Lawson were called to testify.

28                               On the voir dire, the trial judge asked who would call Lawson.  Obviously resigned to the trial judge’s treatment of Howard, defence counsel replied, “Well, if my friend is not gonna call Officer Lawson, I will.”

29                               The trial judge considered that Lawson’s testimony would provide what he saw as the “substantive evidence” requirement.  And it was on this basis that he ultimately permitted the defence to cross-examine Crown witnesses with respect to its “drug debt” theory.

30                               After Ottaway’s evidence, and once the jury was excused, the trial judge returned to the evidentiary basis for defence counsel’s cross-examination:

THE COURT:  Just before we leave.  Apropos and flowing from my ruling with respect to cross-examination, Ms. Robb, I noticed [on] a number of occasions you put questions to this witness, 1) inquiring as to whether he’d seen a BMW in the driveway; 2) whether he checked the owners of all the cars that they took the license plates from; 3) with respect to whether they saw a Maxima in the driveway; 4) whether Ms. Veta Smith had any outstanding charges for importing and 5) suggesting that there were many other suspects . . . that they investigated.  These are all questions of the same nature as the one that you wanted to ask with respect to the drug deal situation.  I assume you are going to be leading evidence with regard to these various items or there will be evidence coming out.  There was no objection taken by your friend and they are not, of course, as egregious or perhaps as important to your defence as the drug related thing and I’ve given you the latitude to ask those questions but, you have a tendency to ask questions, take a no answer.  We wonder whether there will be evidence down the road to substantiate the finding of a BMW, for instance, in the driveway.

MS. ROBB:  Well, Your Honour, I got . . . [that from the Crown’s disclosure].

THE COURT:  Technically, under the Rule you can’t simply leave that hanging as you have.

31                               When defence counsel later advised the court that she wished to address  the jury last and did not wish to be forced to forego this right by calling evidence, the trial judge stated:

THE COURT: . . . Madam.  I’m going to ask you not to use that terminology again.  The Crown is not forcing you to call Lawson.  The reason I am suggesting you must call Lawson is because you committed to call Lawson freely during the course of a voir dire in which you won the day and your point prevailed to a great extent upon the commitment you made to the court that you would call Lawson so that you would have the opportunity to abide by the Howard principle that if you are going to cross-examine in this particular area you have to produce, as the Crown says, “the beef”. [Emphasis added.]

32                               Defence counsel then asked the trial judge to himself call Lawson as a witness in accordance with  R. v. Cook, [1997] 1 S.C.R. 1113, but the judge refused to do so.

33                               As a result, Lawson and Ganson were called by the defence, and the appellant lost his statutory right to address the jury last.  On cross-examination by the Crown, Lawson and Ganson described their “drug debt” suppositions as initial theories or “hunches” which appeared, they said, to have been disproved by further police investigation. 

34                               The defence did not present any other evidence.

35                               The appellant was convicted of robbery, assault causing bodily harm, kidnapping and possession of a dangerous weapon.

B.  Ontario Court of Appeal (2002), 61 O.R. (3d) 97

36                               On appeal to the Ontario Court of Appeal, the court found that the trial judge had erred in applying Howard, but that the verdict could be saved, and the appeal dismissed, by resort to s. 686(1)(b)(iii) of the Criminal Code .

37                               Delivering the judgment of the court, Carthy J.A. concluded (at para. 11) that the broad rule enunciated by Lamer J. (as he then was) in Howard had no application in the circumstances of this case as it was intended to apply only with respect to the cross-examination of expert witnesses:

Lamer J. could not have been intending to lay down a broad rule encompassing all forms of cross-examination and to be overruling well-established authorities of this court and others without referring to them.  The implications of such a strict rule would pervade and restrict all traditional cross-examinations containing any element of speculation.

38                               Carthy J.A. found, correctly in our view, that Howard did not overrule R. v. Bencardino (1973), 15 C.C.C. (2d) 342 (Ont. C.A.), which stood for the principle that counsel can cross-examine on matters he or she may not be able to prove directly so long as counsel had a good faith basis for asking the question.  He also referred to R. v. Krause, [1986] 2 S.C.R. 466, and noted, at para. 19, that:

[T]he general rule is for a broad right of cross-examination unconstrained by direct relevance to issues and then a narrower right, but not a compulsion, to rebut with further evidence if the issue is not collateral.

39                               The Court of Appeal held that the trial judge had erred in requiring defence counsel to undertake to call evidence to support her “drug debt” theory as a condition for permitting cross-examination on that subject.

40                               The court was satisfied, however, that this error had occasioned no substantial wrong or miscarriage of justice within the meaning of s. 686(1)(b)(iii) of the Criminal Code  and dismissed the appeal.

IV.   Discussion

41                               As mentioned at the outset, the right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence.  See R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 608, per McLachlin J. (as she then was):

The right of the innocent not to be convicted is dependent on the right to present full answer and defence.  This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. . . . In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. [Emphasis added.]

42                               In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. reviewed the relevant authorities and, at p. 663, explained why cross-examination plays such an important role in the adversarial process, particularly, though of course not exclusively, in the context of a criminal trial:

There can be no question of the importance of cross-examination.  It is of essential importance in determining whether a witness is credible.  Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony.  For example, it can demonstrate a witness’s weakness of sight or hearing.  It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing.  Its importance cannot be denied.  It is the ultimate means of demonstrating truth and of testing veracity.  Cross-examination must be permitted so that an accused can make full answer and defence.  The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused.  This is an old and well-established principle that is closely linked to the presumption of innocence.  See R. v. Anderson (1938), 70 C.C.C. 275 (Man. C.A.); R. v. Rewniak (1949), 93 C.C.C. 142 (Man. C.A.); Abel v. The Queen (1955), 115 C.C.C. 119 (Que. Q.B.); R. v. Lindlau (1978), 40 C.C.C. (2d) 47 (Ont. C.A.).

43                               Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms .  See Osolin, supra, at p. 665.

44                               The right of cross-examination must therefore be jealously protected and broadly construed.  But it must not be abused.  Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value.  See R. v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.);  R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, supra.

45                               Just as the right of cross-examination itself is not absolute, so too are its limitations.  Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done — and seen to be done.  In the exercise of that discretion, they may sometimes think it right to relax the rules of relevancy somewhat, or to tolerate a degree of repetition that would in other circumstances be unacceptable.  See United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 925.

46                               This appeal concerns the constraint on cross-examination arising from the ethical and legal duties of counsel when they allude in their questions to disputed and unproven facts. Is a good faith basis sufficient or is counsel bound, as the trial judge held in this case, to provide an evidentiary foundation for the assertion?

47                               Unlike the trial judge, and with respect, we believe that a question can be put to a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question.  It is not uncommon for counsel to believe what is in fact true, without being able to prove it otherwise than by cross-examination; nor is it uncommon for reticent witnesses to concede suggested facts — in the mistaken belief that they are already known to the cross-examiner and will therefore, in any event, emerge.

48                               In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used.  Information falling short of admissible evidence may be put to the witness.  In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false.  The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition.  The purpose of the question must be consistent with the lawyer’s role as an officer of the court:  to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited.

49                               In Bencardino, supra, at p. 347, Jessup J.A. applied the English rule to this effect: 

. . . whatever may be said about the forensic impropriety of the three incidents in cross-examination, I am unable to say any illegality was involved in them. As Lord Radcliffe said in Fox v. General Medical Council, [1960] 1 W.L.R. 1017 at p. 1023:

An advocate is entitled 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.  The penalty is that, if he gets a denial or some answer that does not suit him, the answer stands against him for what it is worth.

50                               More recently, in R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58, while recognizing the need for exceptional restraint in sexual assault cases, Binnie J. reaffirmed, at paras. 121-22, the general rule that “in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness . . .”.  As suggested at the outset, however, wide latitude does not mean unbridled licence, and cross-examination remains subject to the requirements of good faith, professional integrity and the other limitations set out above (paras. 44-45).  See also Seaboyer, supra, at p. 598; Osolin, supra, at p. 665.

51                               A trial judge must balance the rights of an accused to receive a fair trial with the need to prevent unethical cross-examination.  There will thus be instances where a trial judge will want to ensure that “counsel [is] not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box”.  See Michelson v. United States, 335 U.S. 469 (1948), at p. 481, per Jackson J.

52                               Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may properly take appropriate steps, by conducting a voir dire or otherwise, to seek and obtain counsel’s assurance that a good faith basis exists for putting the question.  If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness.

53                               Central to the trial judge’s ruling in this case was his understandable but mistaken view of Howard. 

54                               The Court of Appeal distinguished Howard on the basis that it applied only to expert witnesses. 

55                               In our respectful opinion, the ratio of Howard has been misunderstood and misapplied.  Howard dealt essentially with the admissibility of evidence.  Unfortunately, the reasons of Lamer J. have been applied beyond their context and the record in this case leaves no doubt that a misapprehension of Howard weighed heavily on the trial of the appellant.

56                               In Howard, the accused and his co-accused had been tried jointly and found guilty of first degree murder.  The Court of Appeal concluded that the trial judge had erred in some respects and ordered a new trial.  The co-accused pleaded guilty to second degree murder prior to the second trial.  At the first trial, both the Crown and defence called footprint experts in order to establish or disprove, respectively, that the footprints found beside the body of the victim were those of the co-accused, a certain Trudel. 

57                               At the second trial, before the defence expert testified, the Crown sought the court’s permission to ask the defence expert on cross-examination whether or not the fact that the co-accused had pleaded guilty to the murder and had accepted a statement of facts that put him at the scene of the crime would change the expert’s opinion that the footprints were not those of the co-accused as he had testified at the first trial.  The trial judge ruled that the Crown could ask the question.  The defence chose not to call the expert. 

58                               The issue was whether or not the Crown was entitled to refer, in cross-examining the defence expert, to the guilty plea entered by the co‑accused.  It is in this context that Howard must be understood.  The ratio of Howard, at p. 1348, is that counsel should not inject bias into the application of the witness’s expertise by being told of, and asked to take into account, a fact that is corroborative of one of the alternatives he is asked to “scientifically determine”:

Experts assist the trier of fact in reaching a conclusion by applying a particular scientific skill not shared by the judge or the jury to a set of facts and then by expressing an opinion as to what conclusions may be drawn as a result.  Therefore, an expert cannot take into account facts that are not subject to his professional expert assessment, as they are irrelevant to his expert assessment; a fortiori, as injecting bias into the application of his expertise, he should not be told of and asked to take into account such a fact that is corroborative of one of the alternatives he is asked to scientifically determine.  If the Crown experts had been told by the police when they were retained that Trudel had in fact confessed and that he acknowledged facts that established that it was his footprint, we would be left in doubt as to whether their conclusion is a genuine scientific conclusion.  This is so because their expertise does not extend to Trudel’s credibility, and what he admits to is totally irrelevant to what they were asked to do to help the Court, that is apply their scientific knowledge to the relevant “scientific facts”, i.e., the moulds, etc.

59                               Stated another way, the Crown should not have been authorized to ask the expert to take into account the co-accused’s guilty plea or his adoption of the Crown’s statement of facts.  The Crown had not called the co-accused as a witness and as Lamer J. later pointed out, at p. 1349, “[a]t the next trial Trudel may be called, if the Crown so chooses, to testify to these facts that would tend to prove that [the expert] was wrong in his conclusion”.

60                               The source of the confusion in Howard may originate in the following remarks by Lamer J., at p. 1347:

The fact that Trudel had pleaded guilty and had acknowledged that the footprint was his was not at the time the question intended to be put to the expert, and was not going to become, a fact adduced in evidence; nor was it a fact that could fairly be inferred from the facts in evidence.  It is not open to the examiner or cross-examiner to put as a fact, or even a hypothetical fact, that which is not and will not become part of the case as admissible evidence. [Emphasis added.]

61                               The question that the Crown proposed to put to the expert in Howard would have circumvented the rules of evidence.  Trudel had not testified and his guilty plea was not adduced in evidence.  The question and answer were irrelevant to the validity of the expert’s opinion and therefore inadmissible.  There is a crucial difference between questions put on cross-examination that relate to and rely on inadmissible evidence and cross-examination on unproven facts.  See P. M. Brauti, “Improper Cross-Examination” (1998), 40 Crim. L.Q. 69, at p. 91.

62                               Rather than confining Howard to the admissibility of evidence as Finlayson J.A. did in R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at p. 310, trial and appellate courts, as illustrated in this appeal, have not infrequently interpreted Howard as standing for a broad proposition that restricts cross-examination to questions based on facts established in evidence.  See R. v. Fiqia (1993), 145 A.R. 241 (C.A.), at paras. 44-50; R. v. Fickes (1994), 132 N.S.R. (2d) 314 (C.A.), at paras. 9-10. 

63                               The conclusion that Howard mandates or authorizes the requirement of an evidentiary foundation for every factual suggestion put to a witness (expert or not) in  cross-examination is misplaced.  Howard cannot be invoked for this purpose.  It is unlikely that the Court intended to add an evidentiary requirement to the foundation for cross-examination and thus limit the scope of cross-examination which had been developed by the long history of the common law and accompanying jurisprudence.  Howard therefore cannot be accepted as an authority beyond the ratio of that case which concerned the admissibility of certain evidence. 

64                               The trial judge also made reference to the case of Browne v. Dunn (1893), 6 R. 67 (H.L.), as support for the proposition that an evidentiary foundation is required for questions put in cross-examination.  He was mistaken.  The rule in Browne v. Dunn requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach.  The rationale for the rule was explained by Lord Herschell, at pp. 70-71:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.  My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.  Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.

65                               The rule, although designed to provide fairness to witnesses and the parties, is not fixed.  The extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case.  See Palmer v. The Queen, [1980] 1 S.C.R. 759, at pp. 781-82; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 954-57.  In any event, the foregoing rule in Browne v. Dunn remains a sound principle of general application, though irrelevant to the issue before the trial judge in this case.

66                               As long as counsel has a good faith basis for asking an otherwise permissible question in cross-examination, the question should be allowed.  In our view, no distinction need be made between expert and lay witnesses within the broad scope of this general principle.  Counsel, however, bear important professional duties and ethical responsibilities, not just at trial, but on appeal as well.  This point was emphasized by Lord Reid in Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), at pp. 227-28, when he said:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case.  But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.  Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. . . . [Emphasis added.]

67                               By requiring an evidentiary foundation on the basis of Howard, the trial judge erred in law.  Over the course of the two voir dires the existence of a good faith basis for the defence’s “drug debt” theory had, in any event, become apparent.  This basis included, but was not limited to, the police reports, the complainant Barnaby’s drug conviction, his admission at the preliminary hearing that he had dealt in drugs, and the drug conviction of the complainant’s acquaintance who drove him to the alleged scene of the attack.

V.  Conclusion

68                               In order to determine whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge’s error, an appellate court must determine “whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made”.  See R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617.

69                               In R. v. Anandmalik (1984), 6 O.A.C. 143, at p. 144, the Ontario Court of Appeal recognized that the importance of cross-examination becomes even more critical when credibility is the central issue in the trial:

In a case where the guilt or innocence of the [accused] largely turned on credibility, it was a serious error to limit the [accused] of his substantial right to fully cross-examine the principal Crown witness.  It would not be appropriate in the circumstances to invoke or apply the curative provisions of s. 613(1)(b)(iii) [now s. 686(1)(b)(iii)].

70                               The Manitoba Court of Appeal echoed these sentiments in R. v. Wallick (1990), 69 Man. R. (2d) 310, at p. 311:

Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses.  An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right.  Any improper interference with the right is an error which will result in the conviction being quashed.

71                               It follows that where, as here, a trial judge improperly interfered with an accused’s right to cross-examine, infused a mistrial chill into the proceedings, and placed conditions on a legitimate line of questioning that forfeited the accused’s statutory right to address the jury last, a substantial wrong occurred and an unfair trial resulted.

72                               This alone is sufficient to dispose of the appeal in the appellant’s favour. 

73                               Moreover, we are not convinced that, in the absence of the trial judge’s error, there is no “reasonable possibility that the verdict would have been different”.  See  Bevan, supra, at p. 617.

74                               In our respectful view, it would be wrong in these circumstances to apply the curative proviso.

75                               We would instead allow the appeal and order a new trial.

Appeal allowed.

Solicitors for the appellant:  Pinkofskys, Toronto.

Solicitor for the respondent:  Attorney General of Ontario, Toronto.