Making Factual Allegations or Suggestions to Crown Witnesses in Cross-examination that the Defence may not be in a Position to Prove


There is a general ethical requirement that defence counsel may properly make factual allegations or suggestions to Crown witnesses in cross-examination that they may not be in a position to prove, provided that they have a “good faith” basis for such suggestions, and that their questions are not simply based on speculation, innuendo, or wholly unreliable information.

See R. v Abdo, 2016 ONSC 7240 (CanLII), at para 13

In R. v. Lyttle, 2004 SCC 5 (CanLII), at paras. 47-48, the Supreme Court of Canada confirmed that a cross-examiner may pursue any hypothesis that is honestly advanced in good faith on the strength of reasonable inference, experience or intuition.  More specifically, the court, indicated that:

(1) counsel may properly frame questions based upon information “falling short of admissible evidence” provided that the suggestions are based upon what counsel “genuinely” thinks is possible based upon “known facts or reasonable assumptions;”

(2) it is “improper and prohibited” to “assert or to imply” facts in a manner “that is calculated to mislead;” and

(3) a cross-examiner should not put suggestions to a witness “recklessly” or advance assertions “that he or she knows to be false.” 
 See also R. v. Bencardino and DeCarlo (1973), 1973 CanLII 804 (ON CA), 15 C.C.C. (2d) 342 (Ont.C.A.), at p. 347; R. v. Wilson (1983), 1983 CanLII 229 (BC CA), 5 C.C.C. (3d) 61 (B.C.C.A.), at p. 85; R. v. Dixon (1984), 1984 CanLII 475 (BC CA), 16 C.C.C. (3d) 431 (B.C.C.A.), at pp. 451-452; R. v. Chambers (1989), 1989 CanLII 2846 (BC CA), 47 C.C.C. (3d) 503 (B.C.C.A.), affirmed, (1990), 1990 CanLII 47 (SCC), 59 C.C.C. (3d) 321 (S.C.C.), at pp. 334-335; R. v. K.(B.), [1998] O.J. No. 1165 (C.A.), at paras. 3-10; R. v. Tombran (2000), 2000 CanLII 2688 (ON CA), 142 C.C.C. (3d) 380 (Ont.C.A.), at paras. 37-45.

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