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Evidence - Cross-Examination. R. v. Davidov
In R. v. Davidov (Ont CA, 2023) the Court of Appeal considered the evidentiary use put to pre-trial exculpatory statements made to police, which were not adduced in the Crown's case, but were cross-examined on in the defence's case. The defence argued successfully that the court applied the inconsistencies exposed in cross-examination to truth-finding, not just to credibility impeachment (though the error was allowable under the curative proviso):[5] The appellant submits the trial judge made two related errors in how she used the evidence of those inconsistencies.
[6] First, the appellant submits, and the Crown agrees, that while the trial judge could use such inconsistencies as part of her assessment of the appellant’s credibility, such inconsistencies could not ground inferences about the appellant’s guilt: R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90, at para. 46; R. v. Kiss, 2018 ONCA 184, at para. 49. The appellant argues the trial judge committed a legal error by using those inconsistencies for the improper purpose of inferring the appellant knew of the illegal importation scheme and participated in it.
[7] Second, and relatedly, the appellant submits, and again the Crown agrees, that: (i) the law draws a distinction between statements or testimony by an accused that are disbelieved and rejected, and those that are found to be fabricated in an effort to avoid culpability; (ii) only the latter can be considered as circumstantial evidence of guilt; and (iii) to find that a statement was fabricated, there must be independent evidence that the exculpatory statement was deliberately made for the purpose of avoiding culpability: R. v. U.K., 2023 ONCA 587, at paras. 71-72.
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[10] We are not persuaded the impugned passages in the trial judge’s reasons are amenable to the interpretation advanced by the Crown. In our view, the passages disclose that the trial judge committed legal error by improperly using some of the inconsistencies between the appellant’s statement to the police and his evidence at trial to infer he knew of and participated in the importation scheme. . R. v. S.K.
In R. v. S.K. (Ont CA, 2023) the Court of Appeal considered improper cross-examination, here in a criminal appeal:(1) The trial judge did not rely on improper cross-examination evidence
[16] The appellant argues that the trial judge relied on evidence arising from improper cross-examination. According to the appellant, the Crown improperly asked the appellant to speculate on the motives of a witness and whether the appellant could explain why a witness would make false allegations: R. v. G.H., 2020 ONCA 1, at para. 24; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 38, leave to appeal refused, [2015] S.C.C.A No. 110. The result, the appellant contends, was a miscarriage of justice under s. 686(1)(a)(iii) of the Code.
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[19] The considerations for reviewing alleged miscarriages of justice arising from cross-examination were summarized by this court in R. v. K.L., 2018 ONCA 792, at para. 8:First, it will only be conduct that compromises trial fairness that will justify ordering a new trial, not merely improper conduct. Second, while not dispositive of the issue, the failure of defence counsel to object at trial is a relevant factor to consider. And finally, the reviewing court will look at the overall effect of the improper questions and conduct of the Crown in the context of the full cross-examination and the entire trial: R. v. A.G., 2015 ONCA 159, at paras. 20-25. . Interhealth Canada Limited v. O’Keefe
In Interhealth Canada Limited v. O’Keefe (Ont CA, 2023) the Court of Appeal considers judicial practice when the issue of limitations to be placed on cross-examination arises:[52] Counsel had cross-examined Mr. O’Keefe over two days and had cross‑examined Mr. Schwartz for approximately a half-day. When appellant’s counsel had 35 minutes left to cross-examine Mr. O’Keefe, he inquired whether it was a “hard stop”. The trial judge confirmed that it was. In the case of Mr. Schwartz, the trial judge simply told appellant’s counsel that his time was up.
[53] I begin by noting that deference is owed to trial management decisions. Judicial resources are scarce and were particularly scarce during the COVID-19 pandemic. Trial management is an essential and versatile tool. That said, it must be exercised carefully. “The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency”: R v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7, at paras. 22, 25.
[54] Where counsel seeks an extension of the time agreed or fixed for cross‑examination, and their cross-examination has not been unduly repetitive, rambling, argumentative, misleading or irrelevant, it is prudent for a trial judge to inquire as to what additional questions counsel wishes to ask, and how long doing so might take before cutting counsel off. This brief exchange may need to take place in the absence of the witness. Such an inquiry should not create delay. Armed with the responses to these questions, the trial judge will be able to quickly assess the relevance and materiality of counsel’s proposed line of further inquiry and determine whether a brief extension is reasonable and warranted in all the circumstances. Whether the pace of counsel’s cross-examination has been slowed by unreasonable interjections of opposing counsel may be a relevant factor in deciding whether a brief extension is appropriate.
[55] Here, the trial judge did not ask counsel for the appellant what additional questions he wished to ask Mr. O’Keefe or Mr. Schwartz, and how long doing so might take. She may have concluded that trial counsel had failed to focus and get to the point, as she had cautioned him to do, but she made no comment to that effect.
[56] In any event, counsel did not put on the record what additional lines of inquiry he sought to pursue, and why. While counsel says it was clear that nothing he said would change the trial judge’s mind, he nonetheless should have done so. Nor did the appellant outline in its factum on appeal what those additional lines of inquiry were, and why he was prejudiced by his inability to ask further questions.
[57] When pressed at the hearing of the appeal, counsel says that he wished to further press Mr. Schwartz, also a former director of the appellant, on why Mr. O’Keefe accelerated his resignation from December 31, 2005 to October 31, 2005. Whether Mr. O’Keefe’s resignation was prompted or influenced by a wish to acquire the “opportunities” at issue for CHNI was an issue at trial. As noted above, the trial judge accepted Mr. O’Keefe’s evidence about the reasons for his resignation, including that he accelerated his resignation because he did not support the appellant’s pursuit of the “Wave 2” projects in the UK. In his cross‑examination, Mr. Schwartz testified that his understanding was that Mr. O’Keefe accelerated his resignation because of the issues related to the “Wave 2” projects.
[58] The trial judge noted that Mr. O’Keefe’s concern was shared with the other Canadian directors, including Mr. Schwartz. Mr. Schwartz and another director stated in emails that they would resign in solidarity with Mr. O’Keefe. Three other directors resigned around the same time as Mr. O’Keefe.
[59] In the circumstances, I am not persuaded that the appellant was prejudiced by his inability to further press Mr. Schwartz on this issue.
[60] As to its cross-examination of Mr. O’Keefe, the appellant submitted that it would have pursued with Mr. O’Keefe why his June 2005 resignation letter did not mention the concern with Wave 2 projects[1] and asked more questions about the letter he sent to HBS on behalf of HIH on October 20, 2005. While the appellant had explored the interests of Dr. Muhairi in the Cromwell Opportunity, the appellant says it wished to explore this further, and also to further cross-examine Mr. O’Keefe on inconsistencies in his evidence.
[61] Counsel for the appellant did not explain what he hoped to elicit from these further questions, besides somehow casting doubt on Mr. O’Keefe’s credibility, and what role they would have had in the trial judge’s reasoning process. Again, I am not persuaded that the appellant was prejudiced.
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