This second part of the hearing has three components, the “examination-in-chief”, also called “direct examination”, the “cross-examination” and the “re-examination”. The examination-in-chief refers to when a party calls its own witness, generally a witness that will testify on facts favourable to its position (except for adverse witnesses). The cross-examination is when a party gets to question another party’s witness. Whenever a witness is called, the examination of that witness starts with the examination-in-chief, meaning that the party calling the witness gets to question that witness first. When the examination-in-chief is done, the opposing party then gets to cross-examine that witness. After the opposing party has cross-examined the witness, that witness may be re-examined by the party who called the witness initially. When a witness is done testifying, it’s the turn of the next witness, until the appellant no longer has any more witnesses to call. Then, it’s the turn of the Crown to call its witnesses. This time, since the Crown called the witness, the Crown will examine the witness first and, when done, the appellant will get the chance to cross-examine that witness. This goes on until the Crown has no more witnesses to call.
Generally, a witness can only testify regarding facts. The witness cannot provide an opinion unless he is qualified by the Court as an “expert witness”. If the appellant intends to call an expert witness, he must, at least 10 days before the hearing, file an expert report with the Court and serve the report on the Crown. The expert report must set out the expert’s name, address and qualifications, as well as provide the substance of the expert’s testimony.
Generally, the purpose of the examination-in-chief is to tell a story.
If the appellant is self-represented, he will need to go to the witness box and swear an oath (or make an affirmation) to tell the truth. Then, he will be given the opportunity to tell the judge his side of the story or, in other words, the relevant facts in support of his position.
If the appellant calls another person to the stand, the rules are a little different. The witness will not be free to talk at his will. Instead, the appellant will have to ask questions to the witness. An important rule to be aware of is that the appellant will have to ask “open-ended questions”. Open-ended questions are questions that do not suggest an answer, as opposed to “leading questions”. For example, an open-ended question would be something like “What did you do the morning of December 10, 2013?” In no way does the appellant suggest an answer to the witness. A leading question would be “The morning of December 10, 2013, you went to Starbucks, correct?” This is clearly a leading question because the appellant is indirectly answering the question for the witness and the witness just has to say “yes” or “no.”
Make sure that the evidence is clear, complete and credible.
A cross-examination can have many purposes:
- To undermine the story told during the examination-in-chief and, at the same time, undermine the witness.
- To put in evidence facts that were not mentioned during the examination-in-chief but that are important to the party cross-examining.
- To introduce documents into evidence. This happens often in tax cases. If the Crown decides not to call any witnesses, but needs to introduce documents into evidence, it will do so during cross-examination.
Because witnesses during cross-examination are generally adverse to the party asking the questions, the party asking the questions gets the benefit of asking what lawyers refer to as “leading questions”. Leading questions are more focused and are intended to lead the witness to answer in a certain way. For instance, if a lawyer wants to show that a witness went to Starbucks on December 10, 2013, he may not ask the witness “Did you go to Starbucks on December 10, 2013?” If the witness is adverse, he may just say “no” or “I don’t remember”. Instead, the lawyer will try to lead the witness by asking a series of questions to corner the witness to give the answer that he wants. Cross-examination is an art and even lawyers with many years of experience may stumble.
Once the opposing party has cross-examined the witness, the party who called the witness can re-examine that witness, but the re-examination is generally limited to facts raised during cross-examination. A re-examination is generally used to allow the witness to complete or clarify his answers given during cross-examination. Most lawyers will not re-examine their witnesses unless necessary to clarify a point.
Documentary evidence refers to documents or other tangible things that a party wants to introduce to prove or support a point. For example, if an appeal relates to business expenses that were disallowed, the taxpayer may want to introduce invoices showing that he incurred the expenses. Once the evidence is accepted by the Court, it becomes an “exhibit”.
A party should generally make 4 copies of the documents that it intends to introduce into evidence. One for the Court, one for opposing counsel, one for the witness and one to keep for reference.
Last updated: October 4, 2015