Cross-Examining a Crown Witness on his/her Criminal Record, Outstanding Charges, and Withdrawn Charges

Generally speaking, defence counsel may attempt to undermine the credibility of a Crown witness by attacking the character of that witness.  Any Crown witness who, for example, has an unsavoury character, or a criminal record, or a disreputable past, is liable to be questioned by defence counsel in a manner that is designed to reveal any flaws in their character.  In so doing, the defence may attack his or her general character by exploring, within reasonable limits, all manner of past acts of alleged misconduct.  Such questioning is relevant to the credibility of the witness. 

 See R. v. Davidson, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont.C.A.) at pp. 441-442, leave denied, [1974] S.C.R. viii; R. v. Mitchell, 2008 ONCA 757 (CanLII), at paras. 17-19; R. v. Boyne, 2012 SKCA 124 (CanLII), at para. 47, leave denied, [2013] S.C.C.A. No. 54.

Cross-examination on the details of a Crown Witness’s Criminal Record

Defence counsel is permitted to cross-examine Crown witnesses, within reasonable limits, on the details of their criminal records, investigating all of the various factual nuances that support each conviction or finding of guilt.  Defence counsel are only limited in this regard by the bounds of relevance and the discretion of the trial Judge, who must balance the probative value of such cross-examination against its prejudicial effect. 

See R. v. Davidson, DeRosie and MacArthur, at p. 443; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont.C.A.) at paras. 15-25; R. v. Burgar, 2010 ABCA 318 (CanLII), at para. 12.

Cross-examination on a Crown Witness’s Outstanding Charges

Defence counsel is permitted to cross-examine Crown witnesses, again within reasonable limits, as to the factual details of alleged misconduct by the witness that did not result in any criminal charge or subsequent conviction. 

See R. v. Gassyt and Markowitz (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont.C.A.) at paras. 34-40; R. v. Miller, at paras. 15-25.   

Accordingly, a Crown witness may properly be cross-examined in relation to the factual allegations regarding an outstanding charge against him/her that has not yet come to trial. 

See R. v. Titus (1983), 1983 CanLII 49 (SCC), 2 C.C.C. (3d) 321 (S.C.C.); R. v. Chartrand (2003), 2002 CanLII 6331 (ON CA), 62 O.R. (3d) 514 (C.A.), at paras. 10-11. 

Similarly, a Crown witness may properly be cross-examined by defence counsel on the factual allegations underlying a finding of guilt that did not result in a conviction, but rather led to the imposition of a conditional or absolute discharge.  See R. v. Cullen (1989), 52 C.C.C. (3d) 459 (Ont. C.A.).

For the Purpose of Cross-examination, an Acquittal is Viewed as Legal Innocence

One of the few legal restrictions placed upon the scope of such cross-examination of Crown witnesses is that, where the witness has been tried on criminal charges and acquitted, defence counsel may, generally speaking, not question the witness as to the factual allegations underlying those “not guilty” verdicts, by suggesting that the witness may actually have engaged in the alleged misconduct.  The governing authorities hold that such a verdict of acquittal is generally viewed as a verdict of “legal innocence.”  

See R. v. Grdic (1985), 1985 CanLII 34 (SCC), 19 C.C.C. (3d) 289 (S.C.C.), at p. 293; R. v. Grant (1991), 1991 CanLII 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.), at p. 279; R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 371; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 (S.C.C.), at p. 383; R. v. M. (W.) (2007), 2007 ONCA 720 (CanLII), 87 O.R. (3d) 425 (Ont. C.A.), at paras. 22-27. 

For cross-examination purposes, the verdict of acquittal renders “entirely innocent” the person’s “connection to the conduct underlying the charge.” 

See R. v. Akins (2002), 2002 CanLII 44926 (ON CA), 59 O.R. (3d) 546 (C.A.), at para. 16; R. v. Jama, 2012 ONSC 7095 (CanLII), at paras. 22, 30-31; R. v. Hillis, 2016 ONSC 450 (CanLII), at paras. 88-101; R. v. Camacho (1998), 1998 CanLII 4930 (ON CA), 129 C.C.C. (3d) 94 (Ont.C.A.); R. v. Martin (1980), 53 C.C.C. (2d) 425 (Ont.C.A.). 

Cross-examination on Charges that have been Withdrawn

Where criminal charges against an individual are withdrawn, however, there has been no judicial determination made that the person was “not guilty” as no verdict was ever reached in relation to the charges. 

Criminal charges may be withdrawn by the Crown for “a number of reasons” and, accordingly, the withdrawal of criminal charges does not mean that there has been any determination of guilt or innocence in relation to the charges laid but subsequently withdrawn.  Given that Crown witnesses may be properly questioned about the facts surrounding acts of alleged prior misconduct on their part where no criminal charges were ever initiated, it follows that such witnesses may also be properly questioned about the factual basis of alleged prior misconduct on their part that led to criminal charges that were ultimately withdrawn against them.

It is the factual basis of the of the prior acts of misconduct that is relevant to witness credibility, not the charges themselves

It is important to appreciate, however, that it is the factual basis of the alleged prior acts of misconduct on the part of the Crown witness that may be relevant to the credibility of the Crown witness, not the mere fact that the witness may have outstanding criminal charges pending against them, or that the witness may have been originally charged with some criminal offences before those charges were ultimately withdrawn.  Accordingly, the proper focus of permissible cross-examination of a Crown witness must remain on the factual basis underlying the charges, not the charges in and of themselves. 

See R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont.C.A.), at pp. 510-511; R. v. Hoilett (1991), 1991 CanLII 7285 (ON CA), 3 O.R. (3d) 449 (C.A.) at paras. 15-18; R. v. Gassyt and Markowitz, at paras. 36-39.

R. v. Abdo, 2016 ONSC 7240.