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Evidence - Adverse Witnesses. R. v. Dupuis
In R. v. Dupuis (Ont CA, 2020) the Court of Appeal considered s.9(2) of the Canada Evidence Act on the use of adverse witnesses:[44] I begin by referring to the relevant legal principles. Just as counsel is not permitted to put leading questions to his or her own witness, cross-examination of a party’s own witness is also not permitted. Exceptions occur where the witness is determined to be adverse, or hostile, or where the witness is not necessarily adverse or hostile but has allegedly made a prior inconsistent statement, where the requirements of s. 9(2) of the CEA are met. In each case, it is necessary before cross-examining one’s own witness to obtain leave of the court. The procedure for cross-examining one’s own witness on a prior inconsistent statement is prescribed by s. 9(2) of the CEA, which provides:9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse. [45] The proper procedure for bringing and considering an application under s. 9(2) is set forth in R. v. Milgaard (1971), 1971 CanLII 792 (SK CA), 2 C.C.C. (2d) 206 (Sask. C.A.), at pp. 221-22, leave to appeal refused, [1971] S.C.R. x. The statement must be produced, and the trial judge must determine whether the prior statement is inconsistent, and then determine whether counsel should be permitted to cross-examine the witness. See also R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43-51.
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[57] To succeed on a s. 9(2) application, the Crown would have been required to prove: (1) that there was an inconsistency between the preliminary hearing evidence and Ms. Delina’s evidence at trial; and (2) that Ms. Delina made the prior statement. Then the appellant’s counsel would have had the opportunity to cross-examine Ms. Delina as to the circumstances under which the statement was made, and to call evidence for the purpose of showing that cross-examination by the Crown should not be permitted, before the trial judge would rule on the application: see Milgaard, at pp. 221-22.
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