General Principles

The right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence. Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The right of cross-examination must therefore be jealously protected and broadly construed: R. v Lyttle, 2004 SCC 5

However, the right to cross-eamination is not absolute. In determining whether the unresponsiveness of a witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair, the court must consider three factors: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: R v TH, 2017 ONCA 485 at para 38