Cross-examination is the questioning of a witness by the opposing side, after that witness has already testified in examination-in-chief. It looks and feels different from the questioning that comes before it, and for good reason: cross-examination follows its own rules and serves a different purpose. This guide explains what cross-examination is generally for, why the questioning style changes, and an important statutory limit that applies in sexual-offence cases. It is general information only, not legal advice or trial strategy for a specific case.
The Purpose of Cross-Examination
Once a witness has given their evidence in examination-in-chief, the opposing party is generally entitled to cross-examine them. The general purpose of cross-examination is to test that evidence: to explore inconsistencies, probe the witness's opportunity and ability to observe what they describe, and challenge conclusions the witness has drawn. Cross-examination is a central tool for testing the reliability of the Crown's evidence and, where the accused testifies, the Crown's evidence in response.
Why Leading Questions Are Generally Allowed
A leading question is one that suggests its own answer, for example, a question phrased so that a simple "yes" or "no" all but answers it. In examination-in-chief, lawyers are generally not allowed to ask leading questions of their own witness on contested matters, since the goal is to hear the witness's own account in their own words rather than a script supplied by counsel. Cross-examination works differently: leading questions are generally permitted, and are in fact the primary tool of cross-examination. This allows the questioning lawyer to control the pace and direction of the exchange more closely, testing specific points rather than inviting an open narrative.
Scope of Cross-Examination
Canadian courts generally follow what is often called the broader "English rule" for the scope of cross-examination, allowing questions on any relevant matter rather than restricting cross-examination to only the topics raised in examination-in-chief. This gives the cross-examining lawyer considerable latitude, though the judge retains control over the proceeding and can disallow questions that are irrelevant, argumentative, or otherwise improper, and specific statutory limits, like the one discussed below, can narrow that latitude further in particular kinds of cases.
Testing Credibility and Reliability
Much of cross-examination is aimed at two related but distinct questions: is the witness being honest (credibility), and even if honest, is their account accurate (reliability). A witness might be entirely sincere but mistaken about details such as timing, distance, or lighting conditions. Cross-examination gives the other side an opportunity to explore both possibilities in front of the judge or jury, which is one of the reasons the right to cross-examine an adverse witness is treated as a fundamental part of a fair trial.
Cross-examination is a skill that depends heavily on preparation and knowledge of the disclosure in a case. How it is conducted, and what points are pursued, is something a lawyer plans carefully rather than improvising on the spot.
Section 276: Limits on Questioning About Sexual History
While cross-examination is generally broad, Canadian law places a specific and important limit on it in sexual-offence cases. Section 276 of the Criminal Code, sometimes called the "rape shield" provision, restricts when evidence that a complainant has engaged in other sexual activity, whether with the accused or anyone else, can be used. Such evidence is not admissible to support an inference that, because of the sexual nature of that activity, the complainant is more likely to have consented to the activity at issue, or is less worthy of belief. This directly limits what an accused can ask a complainant on cross-examination in cases such as sexual assault.
Why This Limit Exists
Before rape shield provisions existed, a complainant's prior sexual history was sometimes introduced at trial to suggest, based on outdated and discredited reasoning, that a person who had been sexually active before was either more likely to have consented on the occasion in question, or less credible as a witness generally. Section 276 exists to prevent this kind of reasoning, often described as relying on "twin myths," from being used to derail a fair assessment of the actual evidence. It reflects a deliberate legislative choice to protect complainants in sexual-offence cases from irrelevant and prejudicial questioning, while still permitting genuinely relevant evidence to be considered through a structured process.
How the Section 276 Process Generally Works
Section 276 does not operate as an absolute bar on all evidence of a complainant's sexual history. Instead, it sets out a specific procedure, generally requiring the accused to apply to the court in advance, outside the presence of the jury, before this kind of evidence can be introduced or explored in cross-examination. The judge then assesses, among other things, whether the evidence has significant probative value that is not substantially outweighed by the risk of prejudice to the proper administration of justice. This process reflects an attempt to balance the accused's right to make full answer and defence against the complainant's privacy and dignity interests.
Re-Examination
After cross-examination concludes, the party who originally called the witness may be permitted a brief re-examination, generally limited to clarifying matters that were raised for the first time during cross-examination. Re-examination is not an opportunity to simply repeat the original examination-in-chief or introduce new topics unrelated to what came up in cross-examination.
Once a witness has been fully cross-examined and, where applicable, re-examined, the judge may also ask limited clarifying questions, though a judge is generally expected to remain a neutral arbiter of the proceeding rather than taking on the role of an advocate for either side. The witness is then generally excused, unless a party has reason to recall them later in the trial for a specific and limited purpose, which is relatively unusual outside of complex or lengthy proceedings.
Frequently Asked Questions
Can any witness be cross-examined?
Generally, yes. Any witness who testifies, other than an accused person who chooses not to testify at all, is generally subject to cross-examination by the opposing side.
Are leading questions ever disallowed in cross-examination?
Leading questions are generally permitted in cross-examination, though a judge can still intervene if questioning becomes argumentative, harassing, or otherwise improper.
Does section 276 apply to every criminal trial?
No. It applies specifically to sexual-offence cases involving evidence of a complainant's other sexual activity, not to cross-examination generally.
Can an accused ever ask about a complainant's sexual history?
Only in limited circumstances, and generally only after a specific application and hearing before the trial judge under section 276, not as a routine part of cross-examination.
Why does the accused get to cross-examine a complainant at all?
The right to cross-examine adverse witnesses is a core part of the accused's right to make full answer and defence, though that right is not unlimited and can be shaped by rules like section 276.
What happens after cross-examination ends?
The party who called the witness may briefly re-examine them on matters that arose during cross-examination, and then the next witness is generally called.