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| Patrick Ducharme |
Fixing an arbitrary time limitation on cross-examination of a witness constitutes a refusal to exercise jurisdiction that can be cured by a mandamus order. Subsection 540(1)(a) permits the right of cross-examination of any witness called by the Crown. The right of cross-examination contemplated is that of full, detailed and careful cross-examination.
The Justice should allow any cross-examination that advances the accused’s legitimate interests in preparing his or her defence or advances the ability to demonstrate insufficiencies or weaknesses in the Crown’s evidence.
While Charter arguments cannot be advanced at a preliminary inquiry4 the accused has the right to cross-examine police officers at the preliminary hearing as to their basis for obtaining a search warrant, arresting or detaining the accused, failing to provide an adequate opportunity to contact counsel of choice or any other of a number of possible constitutional violations in order to establish a foundation for a later application at trial relevant to his rights under the Charter.
Although the primary purpose of the inquiry is to determine if there is sufficient evidence to order the accused to trial the preliminary inquiry also serves to protect the accused from a needless and improper exposure to a public trial and is also a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial.
The accused or his counsel is not, however, required to demonstrate a particular cause for cross-examining a witness. The Justice presiding is required to determine whether to allow the cross examination in light of the accused’s legitimate interest in preparing his defence, discovering the Crown’s case and exposing insufficiencies or weaknesses in the Crown’s evidence.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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