R v Dayes – 2013 ONCA 614 (LaForme):

[29] I would reject the appellant’s submission because, in my view, it was open to the Crown to cross-examine T.M. under s. 9(2) of the CEA about why his testimony at the trial was inconsistent with his testimony at S.R.’s trial. Such questioning relates to the inconsistent statement and is therefore within the scope of cross-examination permitted by the provision.

[30] One of the purposes of cross-examination under s. 9(2) is to permit the court to make an adversity ruling. Factors that are relevant to an adversity finding include possible grounds for bias and collusion between the witness and the opposing party to fashion testimony: see the Hon. Mr. Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 5th ed., (Toronto: Canada Law Book, 2013), at para. 21:20.30.60.30.

[31] Crown counsel’s questions attempting to elicit the reason why T.M. had changed his evidence – in particular, whether he did so to protect the appellant – were relevant to the inconsistencies in his
prior testimony and did not exceed the acceptable scope of cross-examination under s. 9(2) of the CEA: see R. v. F.J.U. (1994), 90 C.C.C. (3d) 541, (Ont. C.A.), at p. 551, aff’d [1995] 3 S.C.R. 764; R. v. S.(S.W.), [2005] O.J. No. 4958, 2005 CanLII 43072, (Ont. S.C.), at paras. 1-2; R. v.
Mohammad, [2007] O.J. No. 4901, 2007 CanLII 54965, (Ont. S.C.), at paras. 14-16; and the Hon. David M. Paciocco, “Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases” (2012) 59 C.L.Q. 301, at p. 331.

[32] The appellant goes on to cite R. v. Soobrian (1994), 21 O.R. (3d) 603 (C.A.) for the proposition that it is impermissible for the Crown to call a witness where the witness does not in any way advance the Crown’s case and where the cross-examination merely tends to show that the witness is not credible. In Soobrian, this court concluded that it was incumbent on the trial judge to provide a limiting instruction to the jury to the effect that, in the absence of any collusion between the witness and the accused, if the jury were to find the witness not to be credible, they cannot use that finding to draw an inference adverse to the defence.

[33] In Figliola, this court held, at paras. 61-62, that a Soobrian limiting instruction is required where the effect of the Crown’s cross examination of a witness under s. 9(1) is to “shred the credibility of the Crown’s own witness and to create a factual matrix” where the jury could conclude that the witness “was not only a liar, but was a witness lying for the very purpose of covering up for the appellants’ wrongful deeds and that the appellants were therefore liars themselves, and guilty too.”

[34] According to the appellant, in the present case, Crown counsel urged T.M. to admit that he was lying at the trial to cover up for the appellant, with the implication being that the appellant was therefore guilty. The appellant contends that the trial judge erred in not providing a limiting instruction as described in Soobrian and Figliola.

[35] I do not agree that the cross-examination of the appellant strayed into impermissible Soobrian territory as described by this court in Figliola. Thus, I do not accept that the trial judge was required to provide the limiting instruction described in Soobrian and Figliola.

[36] Clearly, this was not a situation like Soobrian where the Crown called a witness for the tactical reason of demonstrating that the witness’s testimony was false and to use that evidence to suggest that the defence position was fabricated. The Crown did not call T.M. with the plan of impeaching him or suggesting that he and the appellant had colluded to cover up the appellant’s involvement in the robbery. Rather, based on T.M.’s testimony at the trial of S.R., the Crown
expected that T.M. would give evidence implicating the appellant in the robbery. When T.M. testified in a way that absolved the appellant of knowledge or involvement in the robbery, the Crown quite properly applied under s. 9(2) of the CEA to cross-examine T.M. on his prior statement at the trial of S.R.

[37] In Figliola, Crown counsel put to its own witness a series of questions aimed at supporting the Crown’s theory that this witness was fabricating an alibi for the accused. As this court put it, at para.
48, the Crown cross-examined its own witness “forcefully in a wide-ranging fashion” for the purposes of shredding the witness’s credibility.

[38] In contrast, Crown counsel’s cross-examination of T.M. was not aimed at extracting testimony in an effort to destroy his credibility and lead the jury to conclude that because he was not telling the truth, the appellant was therefore guilty. Rather, T.M. freely gave testimony that conflicted in a host of material respects from his prior sworn evidence at S.R.’s trial. The vast majority of the Crown’s questions explored these inconsistencies. Crown counsel’s few questions concerning why
T.M. had changed his evidence so dramatically were within the permissible scope of questioning under s. 9(2) of the CEA.

[39] Moreover, it is important to recognize that T.M.’s testimony from S.R.’s trial was admitted for the truth of its contents, unlike the witness’s prior inconsistent statement in Figliola. Accordingly, in
the present case, the jury was at liberty to use T.M.’s prior evidence for its truth, as well as for purposes of assessing his credibility. The limiting instruction described in Soobrian and Figliola is not suited to a situation where it is open to the jury to accept the witness’s prior inconsistent statement inculpating the accused for the truth of its contents and not merely for purposes of assessing the witness’s credibility.

[40] Finally, I note that in the second pre-charge conference, defence counsel specifically asked that no strong warning be given about T.M.’s credibility. He explained that such a warning would do a disservice to the appellant, given his own reliance on T.M.’s trial testimony. After the charge was delivered, defence counsel did not object or otherwise indicate that he had reconsidered this position.

[41] I would therefore dismiss this ground of appeal.