R. v. Lyttle (M.G.) (2004), 316 N.R. 52 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2004] N.R. TBEd. FE.029
Michael Garfield Lyttle (appellant) v. Her Majesty The Queen (respondent)
(29412; 2004 SCC 5; 2004 CSC 5)
Indexed As: R. v. Lyttle (M.G.)
Supreme Court of Canada
McLachlin, C.J.C., Major, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
February 12, 2004.
Summary:
The accused was convicted by a jury of, inter alia, assault causing bodily harm and robbery. He appealed the convictions, submitting that the trial judge unduly restricted his right to fully and properly cross-examine the principal Crown witness, thereby precluding him from making full answer and defence.
The Ontario Court of Appeal, in a judgment reported (2002), 163 O.A.C. 33, dismissed the appeal. The trial judge erred in requiring the accused to “follow up with substantive evidence” every factual hypothesis counsel intended to put to the Crown witness in cross-examination. The governing standard was good faith. However, the court applied s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal where the error resulted in no miscarriage of justice. The accused appealed.
The Supreme Court of Canada allowed the appeal and ordered a new trial. The trial judge erred in unduly restricting the accused’s right to cross-examine the Crown witness by requiring substantive evidence to support the defence theory the accused wished to put to the witness. However, the Court of Appeal erred in applying the curative proviso where the trial judge’s ruling had an intimidating effect on defence counsel, disrupted the rhythm of cross-examination and constrained its scope. Further, the ruling obliged defence counsel, contrary to her wishes, to call the police investigators as her own witnesses, permitting the Crown to cross-examine them and causing the accused to forfeit his statutory right to address the jury last.
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – What constitutes a substantial wrong or miscarriage of justice – A trial judge unduly restricted the accused’s right to cross-examine the principal Crown witness on the defence theory by requiring substantive evidence of the defence theory – In order to cross-examine the witness, the ruling forced the accused to call two police officers as his own witnesses, thereby permitting the Crown to cross-examine them and forfeiting the accused’s right to address the jury last (accused had not intended to call evidence) – The Supreme Court of Canada affirmed that the trial judge erred, but held that the Court of Appeal erred in applying the curative proviso of s. 613(1)(b)(iii) of the Criminal Code to dismiss the appeal – The court ordered a new trial, stating 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. … 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 paragraphs 68 to 73.
Criminal Law – Topic 5415
Evidence and witnesses – Witnesses – Cross-examination of – The Supreme Court of Canada held that counsel could cross-examine a witness on matters that he or she may not be able to prove directly as long as counsel had a good faith basis for asking the question – The court stated that “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. … 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. … 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.” – The court also held that its previous decision in R. v. Howard (1989), 96 N.R. 81, has been misapplied – The court stated that “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” – See paragraphs 38 to 67.
Criminal Law – Topic 5415
Evidence and witnesses – Witnesses – Cross-examination of – A victim identified the accused as his attacker – The defence theory, arising from the investigating officers’ initial beliefs, was that the attack related to an unpaid drug debt and that the accused was named to protect the identity of the real attackers (victim’s drug ring associates) – The trial judge ruled that the accused could not cross-examine Crown witnesses on this theory absent substantive evidence of the drug debt theory – Accordingly, defence counsel was forced to call the officers as defence witnesses in order to cross-examine the victim on its theory – Counsel, by doing so contrary to her wish not to call evidence, forfeited the right to address the jury last and the Crown, not the accused, had the right to cross-examine the officers – The Supreme Court of Canada affirmed that the trial judge erred in requiring an evidentiary foundation for the defence theory as a precondition to cross-examining Crown witnesses – Counsel could cross-examine a witness on matters that he or she may not be able to prove directly as long as counsel had a good faith basis for asking the question – See paragraphs 38 to 67.
Evidence – Topic 4703
Witnesses – Examination – Cross-examination – Range of examination – [See both
Criminal Law – Topic 5415
].
Evidence – Topic 4707
Witnesses – Examination – Cross-examination – Limitations – [See both
Criminal Law – Topic 5415
].
Cases Noticed:
R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81, refd to. [para. 4].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 16].
R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 32].
R. v. Bencardino (1973), 15 C.C.C.(2d) 342 (Ont. C.A.), refd to. [para. 38].
R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 38].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 41].
R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 42].
R. v. Meddoui, [1991] 3 S.C.R. 320, refd to. [para. 44].
R. v. Logiacco (1984), 2 O.A.C. 177; 11 C.C.C.(3d) 374 (C.A.), refd to. [para. 44].
R. v. McLaughlin (1974), 15 C.C.C.(2d) 562 (Ont. C.A.), refd to. [para. 44].
United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 45].
R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 50].
Michelson v. United States (1948), 335 U.S. 469, refd to. [para. 51].
R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 16 O.R.(3d) 295 (C.A.), refd to. [para. 62].
R. v. Fiqia (N.A.) (1993), 145 A.R. 241; 55 W.A.C. 241 (C.A.), disagreed with [para. 62].
R. v. Fickes (C.C.) (1994), 132 N.S.R.(2d) 314; 376 A.P.R. 314 (C.A.), disagreed with [para. 62].
Browne v. Dunn (1863), 6 R. 67 (H.L.), refd to. [para. 64].
R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 65].
Rondel v. Worsley, [1969] 1 A.C. 191, refd to. [para. 66].
R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 68].
R. v. Anandmalik (1984), 6 O.A.C. 143 (C.A.), refd to. [para. 69].
R. v. Wallick (1990), 69 Man.R.(2d) 310 (C.A.), refd to. [para. 70].
Authors and Works Noticed:
Brauti, Peter M., Improper Cross-Examination (1998), 40 Crim. L.Q. 69, p. 91 [para. 61].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 954 to 957 [para. 65].
Counsel:
David M. Tanovich, for the appellant;
Shelley Hallett, for the respondent.
Solicitors of Record:
Pinkofskys, Toronto, Ontario, for the appellant;
Attorney General for Ontario, Toronto, Ontario, for the respondent.
This appeal was heard on October 17, 2003, before McLachlin, C.J.C., Major, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.A., of the Supreme Court of Canada.
On February 12, 2004, the judgment of the Court was delivered in both official languages by Major and Fish, JJ.
