CHAPTER 3
EVIDENCE
3.7 Weight or Probative Value
3.7.2 The Weight To Be Given to Testimony
3.7.2.1 Ordinary Witnesses
3.7.2.1.1 Examination in Chief
Examination in chief generally involves the questioning of a witness on the facts of the appeal. The witness may also be questioned on collateral facts that add weight to his or her testimony. For example, it may be shown that a witness was in a good position to observe the fact he or she is speaking to, or that he or she has a special reason to remember it accurately. A witness may be called upon to give an opinion, or, since hearsay is admissible, to repeat what a third party told him or her. Administrative tribunals must take care to note whether the evidence is direct (something the witness saw, heard, etc.) or indirect (something the witness heard someone say, something reported to the witness, etc.).538
A party cannot generally ask leading questions of his or her witness. This common law rule, applicable to Quebec (art. 306 C.C.P.), is premised on the idea that a litigant generally knows what his or her witness will say and therefore has no cause to use creative means to suggest an answer. A leading question is one that states the answer the examining party desires to have confirmed with a yes or no.539
It is likewise considered inappropriate for tribunal members to ask leading questions, because this could give rise to an apprehension of bias, or at least the appearance thereof.
On the other hand, leading questions are allowed when the witness is clearly attempting to dodge a question or side with the opposing party, or when the witness is a party adverse in interest to the one examining him or her. Leading questions may also be allowed to refresh a witness' memory.
There are common law and civil law rules on refreshing the memory of a witness who is having trouble recalling precisely the facts about which he or she is being questioned. The person who is asking the questions may use the witness' prior written statements, notes and in some cases, the notes or testimony of another person. Leading questions may be asked with the permission of the tribunal. The tribunal may also ask any useful questions of the witness.
The tribunal can allow a witness to use a document to refresh his or her memory or refer to personal notes if he or she cannot completely recall a fact. But the opposing party is entitled to examine any document used to refresh a witness' memory, even if it is privileged. Such documents have some probative value when the conditions under which they were drawn up provide sufficient guarantees of reliability.540
Under s. 9 of the Canada Evidence Act and art. 310 C.C.P., a party cannot impeach his or her own witness by evidence of dishonesty, bias, corruption or bad reputation. This occurs when a witness' version of events is substantially different from that expected by the party who called him or her. However, s. 9 provides that the party may contradict the witness with other testimony, or, with leave of the court, by proving that the witness made statements that are inconsistent with his or her testimony.
The circumstances in which the witness allegedly made the prior inconsistent statement must be told to him or her, and the witness must be asked whether or not he or she made it. If the statement was made in writing or is available on a video or other recording, the tribunal can allow the witness to be cross-examined on it. The statement can be tendered. If it was made orally before witnesses, it can be proven through witnesses with leave of the court.
Thus, alleged prior inconsistent statements are admissible not only to impeach the credibility of a witness but also as proof of their contents if they are facts relevant to the issues to be determined. A witness' prior inconsistent statements are admissible if their reliability is sufficiently guaranteed.541
The Commission often introduces claimants' prior inconsistent statements before boards of referees. According to some cases, a person's first statement is more credible than subsequent ones,542 but this may only be a presumption or guideline.543 The position is based on the idea that the first statement was probably made spontaneously and is more sincere. In fact, the person may have been taken by surprise and answered questions asked by the Commission or its investigator too hastily without having understood the questions.544
The credibility to be given to a testimony or even documents is a question of fact that is up to the board to determine,545 especially when there is conflicting testimony546 or a conflict between documentary evidence and testimony.547 The board is in the best position to assess credibility when there is conflicting evidence.548
It has been held that a telephone hearing is not appropriate when credibility is in issue.549 In those situations, the hearing must be held in the presence of the parties, and perhaps even the witnesses.
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