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R. v. Figliola, 2011 ONCA 457 (CanLII)  


[36]         Section 9 of the Canada Evidence Act reads as follows:

Adverse witnesses

9(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

Previous statements by witnesses not proved adverse

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.


(REF R. v. Soobrian 1994 CanLII 8739 (ON CA), (1994), 21 O.R. (3d) 603 (C.A.).)

[39]         Soobrian was a sexual assault trial with two accused, Soobrian and Beaudry.  The defence was consent. At trial, the Crown called a witness, Williams, who, with another man, had been in the same apartment as the parties at the time of the offence.  Williams had told the police immediately after the incident that he had not seen any sexual activity between the complainant and the accused men.  By the time of the preliminary hearing, however, he changed his story to favour the accused, testifying instead that he had witnessed consensual sexual activity between the complainant and Beaudry, but not between the complainant and Soobrian.

[40]         The Crown called Williams not for the purpose of establishing some facts in proof of the Crown’s case, but for the deliberate tactical purpose of discrediting him and his evidence, and thereby – as this court said – “[to] throw a shadow across the expected defence.”  The Crown called Williams knowing that he would give the same evidence that he gave at the preliminary hearing in support of the accused and planning to impeach that evidence through resort to the prior inconsistent statement and then, through general cross-examination, to show that the witness had lied in collaboration with his friends.  The Crown was forthright in disclosing this objective and the trial judge refused to grant a declaration that the witness was adverse pursuant to s. 9(1), but nonetheless permitted cross-examination on the prior inconsistent statement pursuant to s. 9(2).

[41]         On appeal, this court agreed with the decision not to declare Williams adverse under s. 9(1) or to permit cross-examination of Williams at large.  Acknowledging that the Crown was technically within the ambit of s. 9(2), the court questioned whether there was any purpose left for a s. 9(2) order permitting cross-examination on the prior statement, since the Crown was not attempting to show that either the prior statement or the witness’ testimony at trial was the truth. This court concluded, however, that precluding cross-examination on the prior statement would have left the jury without adequate information to assess Williams’ credibility and that, since the Crown had begun its cross-examination before seeking a voir dire, there was little choice but to proceed as the trial judge did and to leave the matter to be dealt with in the charge to the jury.

[42]         There was no specific instruction to the jury in the charge respecting the use of Williams’ testimony, and the appeal was allowed on that basis.  The court said at pp. 612-13:

It is plain that the witness Williams did not adopt his prior statement as true and the only use the jury could properly make of his evidence that he saw the things he testified to was either to accept it, reject it or give it little weight having regard to the view they took of his initial statement to police and his explanation for having made it.  But, on the facts of this case, the thing for which the jury could not use a finding of credibility against Williams, if based on his statement to the police, was to support a finding that neither [either?] or both of the appellants were not credible. Nor could it support the truth of the complainant’s evidence that either of the appellants had sexually assaulted her.  A finding against the credibility of Williams on these grounds would simply neutralize his evidence under oath.  The instruction on the use of prior inconsistent statements was useful as far as it went.  In the unusual circumstances of this case, it did not go far enough in not addressing the true purpose for which that evidence was tendered by the Crown.  Williams’ evidence did not support the evidence of the complainant, or in any other way advance the Crown’s case.  Williams’ cross-examination tended to show that he was not a credible witness, but that in itself had no relevance to the case.  The true purport of Williams’ evidence, including his cross-examination by the Crown, was to show that the appellants were not credible because Williams was not.  The trial judge should have made clear to the jury that there was no basis upon which they could use Williams’ evidence to support that conclusion.

While there was no objection to the charge, we think it was non-direction amounting to misdirection to not make clear to the jury these things specifically.

[43]         This case is not dissimilar in the result.


[48]         The Crown sought an order under s. 9(1) declaring Ms. Pignatelli an adverse witness.  The trial judge made an order declaring Ms. Pignatelli an adverse witness.  The Crown did not seek, nor did the trial judge grant, an order declaring her a hostile witness, and, contrary to Ms. Pignatelli’s submission, the trial judge did not make an order granting the Crown leave to cross-examine Ms. Pignatelli at large.  Perilously, though, everyone appears to have assumed that such an order had been made.  The Crown proceeded to cross-examine the witness forcefully in a wide-ranging fashion – and with considerable success – with no intervention by the trial judge and no objection from defence counsel (not counsel on the appeal) or request for a limiting instruction to the jury.

[49]         However, this seamless move to a cross-examination at large was misguided.  In Ontario, a ruling that a witness is “adverse” pursuant to s. 9(1) of the Canada Evidence Act is not the equivalent of a common law declaration of “hostility” entitling the beneficiary of the ruling to cross-examine the witness at large.  This court has held that adversity and hostility are not synonymous for these purposes: Wawanesa Mutual Insurance Co. v. Hanes, [1961] O.R. 495 (C.A.); R. v. Cassibo (1982), 39 O.R. (2d) 288 (C.A.). See also, R. v. Vivar, [2004] O.J. No. 9 (S.C.), at paras. 11-12; R. v. S.W.S., [2005] O.J. No. 4958 (S.C.); R. v. Osae, 2010 ONSC 3108 (CanLII), 2010 ONSC 3108; R. v. Gushue (No. 4), 1975 CarswellOnt 25 (Ont. Co. Ct.); R. v. Cronshaw (1976), 33 C.C.C. (2d) 183 (Ont. Prov. Ct.).

[50]         This jurisprudence confirms that an “adverse” witness is one who is opposed in interest or unfavourable in the sense of opposite in position to the party calling that witness, whereas a “hostile” witness is one who demonstrates an antagonistic attitude or hostile mind toward the party calling him or her.  In R. v. Coffin (1956), 114 C.C.C. 1 (S.C.C.), at p. 24, Kellock J. described a hostile witness as one who does not give his or her evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.

[51]         The common law right of a party to cross-examine his or her own witness at large with leave of the trial judge, if in the judge’s opinion the witness is “hostile”, is not affected by s. 9(1) of the Canada Evidence Act: Cassibo, per Martin J.A., at p. 302.   Section 9 makes no reference to a witness “proving hostile” and contains no suggestion of a right to cross-examine at large.  As Porter C.J.O. pointed out in Wawanesa, a declaration of hostility and its consequences are something that arise “in addition [to]” a finding of adversity.  At pp. 507-508, after reviewing the steps to be taken by a judge in deciding whether to make a declaration of adversity and the factors to be considered, he stated that “[t]he Judge, if he declared the witness hostile, might, in addition permit him to be cross-examined” (emphasis added).  It follows that a declaration of adversity pursuant to s. 9(1) was not, itself, sufficient to trigger a right in the Crown to cross-examine Ms. Pignatelli generally as to all matters in issue.

Jim O'Neil, LL.B.

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