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R. v. Haussecker, 1998 ABPC 117 (CanLII)


18]                  Mr. Kay is generally entitled to conduct his cross-examination without disclosing its purpose to the witness.  In 6 Wigmore, Evidence §1871 (Chadbourn rev. 1974)  at p. 670, the learned authors state:

“...the cross-examiner need not state beforehand the connection of a question which appears to be irrelevant, unless exceptionally, under the trial court’s determination.  The chief reason is that the advantages of brevity and relevancy, which might otherwise be insisted on, are in experience found to be far overbalanced by the danger of destroying the effectiveness of the great weapon of  cross-examination; for it would often be made useless by requiring in advance a betrayal of its purpose to the wary witness whose falsities are desired to be exposed:

W.D. Evans, 2 Notes to Pothier 230 (1806):  

The benefits of cross-examination are sometimes defeated by the interposition of the Court to require an explanation of the motive and object of the questions proposed, or to pronounce a judgment upon their immateriality; whereas experience frequently shows that it is only by an indirect and apparently irrelevant inquiry that a witness can be brought to divulge the truth which he prepared himself to conceal.  The explanation of the motives and tendency of the question furnishes the witness with a caution that may wholly defeat the object of it, which might have been successfully attained if the gradual progress from immateriality to materiality was withheld from his observation.”

The learned authors of Wigmore, supra, reproduced the following quotation at footnote 8:

“‘An experienced equity judge once said to me in relation to a question I had asked, ‘Really, this is a long way from the point.’  ‘I am aware of that, my lord,’ was my answer; ‘if I were to begin any nearer, the witness would discover my object’” (Ballantine, Experiences of a Barrister’s Life 127 (1882)).”

[19]                  This concept is also referred to in 3 Wigmore, Evidence §781 (Chadbourn rev. 1974) at p. 173.  There, the learned authors state:

“...a cross-examiner need not state the purpose of his question...; the objection in such a case is not that the witness is deceived as to the ultimate purpose of the question, for it is immaterial whether or not he understands that, and it is enough if he is not deceived as to its actual tenor [emphasis is added]; the objection to a cross-examiner’s not disclosing his purpose is that the relevancy of the facts inquired about may otherwise not appear, and the rule permitting such concealment is merely a necessary exception to the general rule requiring relevancy to appear at the time of asking....”

[20]                  From this, I conclude that while a cross-examiner need not disclose his or her purpose in asking a particular question or questions, yet the questions must not be put in such a way as to mislead the witness as to what he or she is being asked.  If the context within which the questions are asked is such that it reasonably leads the witness to conclude that the questions are restricted in their scope to the theme of the preceding questions (what is referred to in Wigmore as the “tenor” of the questions), then the answers to those questions will have little or no probative value in respect of  topics which fall outside that restricted scope.  This is particularly so when the court is asked to draw a negative inference (in this case, an inference that the Informant was not provided the facts necessary for her to form reasonable and probable grounds to believe the accused had committed certain offences).  If a witness is asked questions about steps he or she took, and those questions are put within a context that reasonably leads the witness to conclude that the steps about which he or she is being asked are restricted to a certain category or type of step, then the answers to those questions provide no basis to fairly infer that no steps whatsoever (other than those specified in the answers) were taken.

[21]                  As  noted, it is open to the cross-examiner to cross-examine in such a way that when the witness is finally asked the real question in which the cross-examiner is interested (“the target question”), the previous answers have logically excluded any possible answer but that answer which is sought.  The technique is described in The Art of  the Trial by Robert B. White, Q.C. (Canada Law Book Company; Aurora, Ontario) as “encirclement” (pp.117-120).  It could also be described as “questioning by exclusion”.  Simply put, the cross-examiner asks a series of questions the answers to which ultimately restrict the witness to only one possible answer when he or she is finally asked the target question.  Similarly, the cross-examiner may use the technique to exclude any possible answer to the target question but the one desired by the questioner, even though the target question is not actually put to the witness.  In that circumstance, the questioner eliminates any possible answer to the target question except the answer he or she wants, and achieves that answer not by putting the question to the witness, but by inviting the trier of fact to infer the desired conclusion based on what has been eliminated by the witness as other possible answers.  The  target question is never put to the witness, but the court is invited to infer that had it been asked there could have been no other answer except the one advocated by the questioner.

[22]                  Again, the success of the technique depends upon the content of the questions  (“the exclusionary questions”) which are  posed for their cumulative effect of excluding all answers but one to the target question.  The ability of the exclusionary questions to have their desired effect depends on whether they logically exclude all possible answers except the desired one to the target question.  The thrust of the exclusionary questions is determined not only by the actual words used in them, but also by the context in which they are put.  As noted above, the questions which precede and lead into an exclusionary question help determine what is actually being asked of the witness.  If what the witness fairly may take the exclusionary question to be asking is restricted or modified by the preceding questions, then the answer to the question  will not exclude as much as desired.  The ultimate result is that, when the trier of fact is asked to draw a particular inference in respect of the target question, the factual foundation necessary to lead to only the desired inference is missing.  As a result, the desired answer to the target question cannot be properly supplied by inference.

Jim O'Neil, LL.B.

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