CHAPTER 3

EVIDENCE

 

3.7 Weight or Probative Value

3.7.2 The Weight To Be Given to Testimony

3.7.2.1 Ordinary Witnesses

3.7.2.1.2 Cross-Examination

The right to cross-examine an opposing party's witnesses stems from the principles of natural justice and is universally recognized, though it is not an absolute.^{550 Citation} Cross-examination affords the adversary an opportunity to weaken the effect of testimony or to undermine the credibility of a witness. Any party adverse in interest may exercise this right. If the interests of the parties are sufficiently similar, a tribunal has the discretion to limit or refuse to hear further cross-examination as to facts pertaining to common interests.

Cross-examination may pertain to any fact in issue, even if no questions were asked about it in the examination in chief (art. 314 C.C.P.). Persons conducting a cross-examination are given significant breathing space with regard to the purpose and form of their questions. They may ask leading questions. However, it is the duty of the tribunal to protect witnesses who are being seriously mishandled. It may disallow questions that are irrelevant, useless, aggressive, vexatious or abusive, designed to badger a witness, or likely to bring the administration of justice into disrepute.

Another purpose of cross-examination is to enable a party to strengthen his or her case through the testimony of another party's witness or even the testimony of the other party, when that party testifies. A litigant may attempt to obtain an admission on certain points through a skilful cross-examination.

Cross-examination is often employed to weaken a witness' credibility. It serves to verify a witness' powers and opportunities for observation, description and recollection. Witnesses may be questioned about their background, lifestyle, associations and involvement in questionable activities, provided the questions are related to their credibility as witnesses and are not designed to humiliate or badger them. Under s. 12 of the Canada Evidence Act Section 12 of the Canada Evidence Act, a witness may be questioned as to whether he or she has been convicted of any criminal, federal or provincial offence. If the witness denies the conviction, the opposite party may tender a certificate of conviction.

Proof of prior inconsistent statements on cross-examination is permitted and governed by ss.10 Subsection 10 of the Canada Evidence Act and 11 of the Canada Evidence Act Subsection 11 of the Canada Evidence Act. If the statement is written, the court or tribunal is entitled to examine it. If it is verbal, it may allow proof that it was really made. The witness must be made aware of the statement and the court must draw the witness' attention to the inconsistent portions of the statement.

Finally, a litigant may re-examine his or her witness to clarify, correct or explain answers given on cross-examination. The questions may pertain to new facts elicited by the cross-examination or may be aimed at restoring a witness' weakened credibility (art. 315 C.C.P.). Except insofar as it relates to the witness' credibility, re-examination must be limited to the facts elicited on cross-examination. The court or tribunal may, however, allow evidence neglected in the examination in chief to rectify an omission or when a situation that would have been difficult to foresee is discovered.

 

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