9(2) of the Evidence Act is at their discretion. The decision whether to permit counsel to cross-examine the witness they are calling under s.

↑ Rouse McInroy, supra - no adversity finding needed.R v Rouse McInroy, 1978 CanLII 175 (SCC), 1 SCR 588, per Martland J ↑ R v Milgaard, 1971 CanLII 792 (SK CA), 2 CCC (2d) 206 (SKCA), per Culliton CJ.The common law principles have largely fallen out of disuse and issues of recantations or unfavourable changing of evidence is dealt with in s. Such a witness may be cross-examined to the extent that the judge sees necessary to do justice, which can include a broad area of topics such as all facts in issue, the witnesses reliability and credibility on the circumstances of the case.Ī common law declaration of hostility may be available solely on the basis of the witness's manner in giving evidence and demeanour. The calling party may call evidence to contradict that evidence while still relying on the other evidence that was not contradicted.Ī 'hostile' witness at common law is one who is 'not desirous of telling the truth'. Īn 'unfavourable' witness is one who gives evidence that is contrary to the fact that they were called to prove. ↑ R v Fairbarn, 2020 ONCA 784 (CanLII), per curiamĪt common law, a witness who is unfavourable and hostile may be cross-examined on a prior statement of any type.Paciocco and Lee Stuesser, The Law of Evidence, 5th ed (Toronto: Irwin Law, 2008) at 503-509 R v Paquette, 2008 ABCA 49 (CanLII), 425 AR 4, per curiamĭavid M. R v Situ, 2005 ABCA 275 (CanLII), 200 CCC (3d) 9, per curiam Sales v Basil MacDonald (1956), 3 DLR (2d) 442 at 450 (NSCA) (*no CanLII links) ↑ Hanes v Wawanesa Mutual Insurance, 1961 CanLII 28 (ON CA), OR 495 at 499 (ONCA), per Porter CJ.

Hostile witness rules of court