Appendix K Memorandum of Law - s. 9(2) of the Canada Evidence Act

More documents

Recommendations

Info

Appendix K Memorandum of Law At common law a party could cross-examine his own witness as to a previous inconsistent statement so as to ascertain if possible what induced him to change it: Wright v. Becket (1833), 1 M & Rob. 414, 174 E.E. 143; Melhuish v. Collier (1850), 19 L.J.Q.B. 493. As Lord Hewart, C.J., dryly said in R. v. Harris (1927), 20 Cr. App. R. 144 at p. 147: “It did not need Mr. Denman’s Act [Common Law Procedure Act, 1854, c. 125] to render that process possible.” See also R. v. Francis and Barber (1929), 51 C.C.C. 343 (Sask. C.A.). This common law right assumes that the witness admits to making an earlier inconsistent statement upon being so asked. It is not subject to any ruling or evidence that the witness is hostile or adverse. Further in R. v. Fraser; R. v. Warren (1956), 40 Cr. App. R. 150, Lord Goddard, C.J., said that it was not only the right of prosecuting counsel but his duty to inform the court regarding any earlier inconsistent statement. See also R. v. Mitchell, Dyer, Lowry and Field, [1964] Crim. L.R. 294 (C.C.A.). Strangely these cases do not appear to have been cited in Canada. The statement need not be directly or absolutely at variance: Jackson v. Thomason (1861), 31 L.J.Q.B. 11. It is emphasized that this right to cross-examine is limited to the specific issue as to why the witness has contradicted his earlier statement. It does not extend to a general right to cross-examine as to facts generally in issue or as to credit. It does not infringe the general rule against impeaching the credit of one’s own witness because, as Lord Denman, C.J., said in Wright v. Beckett (1833), 1 M. & Rob. 414 at p. 418, 174 E.R. 143: No inference arises, that I may not prove my witness to state an untruth, when he surprises me by doing so, in direct opposition to what he had told me before. In this case, the discredit is consequential, and the evidence is not general but extremely particular, and subject to any explanation which the witness may be able to afford. See also Wawanesa Mutual Insurance Co. v. Hanes, [1963] 1 C.C.C. 176 (Ont. C.A.), at p. 184, varied [1963] 1 C.C.C. 321 (S.C.C.). It is submitted that this rule continues. It prevents impeachment of one’s own witness by evidence of bad character or reputation. That has not been modified by s. 9 of the Canada Evidence Act nor is it affected by the cross-examination permitted of a witness who has been ruled hostile. The view expressed by defence counsel and the court in R. v. Singh (1979), 48 C.C.C. (2d) 434 (Man. C.A.), at p. 438 seems to be too wide. 36:40320 Proof of statement under s. 9(1) of the Canada Evidence Act At common law where one’s own witness denied making an earlier inconsistent statement it was an open question whether other evidence could be adduced to prove that he had made it: see Wawanesa Mutual Ins. Co. v. Hanes, [1963] 1 C.C.C. 176 (Ont. C.A.), at p.181, per Porter, C.J.O., and Greenough v. Eccles (1859), 5 C.B. (N.S.) 786 at p. 802, 141 E.R. 315, per Williams, J. See also Bradley v. Ricardo (1831), 8 Bing. 57, 131 E.R. 321; Alexander v. Gibson (1811), 2 Camp. 555, 170 E.R. 1250. Cf. R. v. Farr (1839), 8 Car. & P. 768, 173 E.R. 709; Ewer v. Ambrose & Baker (1825), 3 B. & C. 746, 107 E.R. 910. To remove the uncertainty of the common law section 22 of the Common Law Procedure Act, 1854, c. 125, was enacted. A similar provision was also enacted in Canada and is now section 9(1) of the Canada Evidence Act which provides as follows: … [the authors of McWilliams cite the text of 9(1) of the CEA]. 18 The Report of the Federal/Provincial Task Force on the Uniform Rules of Evidence 19 summarizes the reasons for the enactment of s. 9(1) of the CEA as follows: At common law a party is generally prohibited from asking leading questions of his own witness or impeaching his credibility. By calling a witness, the party “vouches” for the witness’s intention to tell the truth to the best of his recollection. 18 Emphasis added. McWilliams, supra note 17 at paras. 36:40100 to 36:40320 . 19 (Toronto: Carswell, 1982) (the “Task Force Report”). 2579
Appendix K Memorandum of Law A party cannot, at common law, impeach his own witness’s credibility by attacking his character or by showing that he had a motive to fabricate because of bias, interest, or corruption, or contradicting him by a prior inconsistent statement. However, a party could contradict his own witness’ testimony concerning the event in issue by calling another witness to relate his version of it. As an exception to the general common law ban against impeaching one’s own witness, a party could cross‐examine a witness if he were hostile. But the common law excluded evidence offered for impeachment of a prior inconsistent statement made by a party’s own witness. Section 3 of the (The Criminal Procedure Act, 1865 (U.K.) (which reenacted section 22 of the Common Law Procedure Act, 1854) was introduced to permit a party to impeach his own witness’ credibility by proof of a prior inconsistent statement. If the witness was adverse and the judge granted leave, the party would be entitled to cross-examine his own witness about a prior inconsistent statement. If the witness did not admit making the statement, the party could call other evidence to prove it, just as if he were an opposing party’s witness. But impeachment by attacking the witness’s character would, as at common law, be prohibited. 20 In Wawanesa Mutual Insurance Company v. Hanes 21 , the Ontario Court of Appeal examined s. 24 of Ontario’s Evidence Act (a nearly identical provincial counterpart to s. 9(1) of the CEA). All three Court of Appeal Justices analyzed the 19th century English jurisprudence that led to the enactment of s. 22 of the Common Law Procedure Act and the purpose of the Canadian versions of that legislation (both federal and provincial). At pages 181 and 182 of Wawanesa (OCA), Chief Justice Porter refers to Best on Evidence: Best on Evidence, 12th ed., p. 566 states: First, then, of the common law. It was an established rule that a party should not be allowed to give general evidence to discredit his own witness; i.e., general evidence that he is unworthy of belief on his oath. By calling the witness, a party represents him to the court as worthy of credit, or at least not so infamous as to be wholly unworthy of it; and if he afterwards attack his general character for veracity, this is not only mala fides towards the tribunal, but, say the books, it ‘would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him’. A party might, however, discredit his own witness collaterally, by adducing evidence to show that the evidence which he have was untrue in fact. This does not raise the slightest presumption of mala fides; and it would be in the highest degree unjust and absurd if parties were bound by the unfavourable statements of witnesses with whom they may have no privity, and who are frequently called by them from pure necessity. This passage fairly states, I think, the common law of which the first two branches of the section are declaratory. Best continues: But whether it was competent for a party to show that his own witness had made statements out of court inconsistent with the evidence which he had given in it, was an unsettled point, on which, however, the weight of authority was in favour of the negative. 22 After examining a number of authorities, Chief Justice Porter came to the following conclusion on the purpose of s. 24 of Ontario’s Evidence Act and other statutes like it: From these authorities it would appear that at common law questions could have been put to a witness by the party calling him as to former inconsistent statements if it were not done with the object of impeaching the credit of the witness, although consequentially it might have this effect. The cases illustrated the obvious difficulties in 20 Task Force Report, supra note 19 pp. 323 to 324. 21 [1963] 1.C.C.C. 176 (Ont. C.A.) (“Wawanesa (OCA)”), varied on appeal, [1963] S.C.R. 154 (“Wawanesa (SCC)”). 22 Wawanesa (OCA), supra note 21 at pp. 181 and 182. 2580
Page 1 and 2: Appendix K Memorandum of Law - s. 9
Page 3 and 4: Appendix K Memorandum of Law (a) Ev
Page 5 and 6: Appendix K Memorandum of Law Third
Page 7: Appendix K Memorandum of Law had gi
Page 11 and 12: Appendix K Memorandum of Law other
Page 13 and 14: Appendix K Memorandum of Law From t
Page 15 and 16: Appendix K Memorandum of Law Justic
Page 17 and 18: Appendix K Memorandum of Law party
Page 19 and 20: Appendix K Memorandum of Law can ap
Page 21 and 22: Appendix K Memorandum of Law 2 C.C.
Page 23 and 24: Appendix K Memorandum of Law Justic
Page 25 and 26: Appendix K Memorandum of Law (b) Ev
Page 27 and 28: Appendix K Memorandum of Law from g
Page 29 and 30: Appendix K Memorandum of Law In my

Appendix K Memorandum of Law - s. 9(2) of the Canada Evidence Act

Create successful ePaper yourself

Delete template?

Save as template?