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EVIDENCE - Witnesses - Credibility - Impeachment - Prior inconsistent statements

Friday, February 19, 2021 @ 6:19 AM  

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Appeal by Dupuis from her conviction, by jury, of manslaughter. The appellant’s former boyfriend died from a single stab wound to the chest. The appellant testified the boyfriend was the aggressor, had come at her with knives while they argued and that he was stabbed by a knife he was holding when, in self-defence, she forcefully pushed him out the door of her apartment. The appellant’s neighbour, Delina, was called by the Crown to testify to what she heard and saw at the door to the appellant’s apartment. The Crown questioned Delina about her allegedly inconsistent statement made at the preliminary inquiry and used the inconsistency in closing submissions to impeach Delina regarding the parts of her testimony that were supportive of the appellant’s account.

HELD: Appeal allowed; new trial ordered. The Crown’s questioning of Delina was not merely an attempt to refresh her memory but was an improper cross-examination of its own witness. The elicitation, use and treatment of Delina’s previous statement rendered the trial unfair. The Crown cross-examined Delina using alleged inconsistencies from her preliminary inquiry evidence without complying with the requirements of s. 9(2) of the Canada Evidence Act and then used the alleged inconsistencies to attack the credibility and reliability of Delina’s evidence. Instead of instructing the jury to disregard the improperly elicited evidence, the trial judge permitted Crown counsel to use the fruits of the improper cross-examination for impeachment purposes and then erred by referring to the potential inconsistencies in the jury charge and inviting the jury to consider them in their assessment of Delina’s evidence. Those errors might have affected the jury’s assessment of the appellant’s credibility, which was the central issue at trial.

R. v. Dupuis, [2020] O.J. No. 5543, Ontario Court of Appeal, J.M. Simmons, K.M. van Rensburg and B. Zarnett JJ.A., December 16, 2020. Digest No. TLD-February152021008