R v Klaus, 2017 ABQB 720

Court of Queen’s Bench of Alberta Citation: R v Klaus, 2017 ABQB 720 Date: 20171124 Docket: 141048777Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Jason Gordon Klaus and Joshua Gregory Frank Accused _______________________________________________________ Reasons for Decision on Order of Cross-Examination of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ [1] Near the conclusion of the examination-in-chief of the first named accused, Jason Klaus, the question arose as to the order ofcross-examination. That is, was Mr.

Klaus subject to cross-examination first by counsel for the co-accused and then the Crown or was hesubject to cross-examination first by the Crown? [2] While there appears to be quite limited authority on this precise issue, generally accepted convention is that the cross-examination of an accused by a jointly-tried accused occurs prior to cross-examination by the Crown. [3] In the The King v Barsalou (No 3) (1901), (QC CQ), 4 CCC 446 at 448 (Que KB), Würtele J. stated: The evidence adduced by the witnesses or any one of the defendants is effective as regards to the others either beneficially or adversely,and, therefore, before the counsel for the prosecution cross-examines, each of the other defendants has the right to cross-examine suchwitnesses and in doing so to bring out fresh facts which may be advantageous for his defence.

[4] This passage was cited with approval on another point in R v Jewell (1974), (ON CA), 22 CCC (2d) 252,[1974] OJ No 931 (CA). [5] In R v Phung, [2006] OJ No 5664, at paras 14-15 (Sup Ct Just), the Court noted the “orthodox position”that the co-accused should cross-examine first, followed by the Crown.

The Court referred to this as the “accepted convention withrespect to the order of cross-examination”. [6] In EG Ewaschuk’s Criminal Pleadings and Practice in Canada, 2d ed (Aurora, Ont: Canada Law Book, 1987-) at 16:2332, itis stated: Where “co-accused are being tried jointly” the practice is for the first accused named on the indictment to cross-examine a co-accusedor her witness first and the other co-accused to do so in the order in which their names appear on the indictment. Finally, the Crowncross-examines the witness last.

See to the same effect Ewaschuk at 16:2650 and 17:2127, SC Hill et al, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto:Canada Law Book, 2013-) at 21:30.80.20, and D Watt, Manual of Criminal Evidence (Scarborough, Ont: Carswell, 1998-) at 20.02. [7] In Phung at paragraph 16, the Court commented on the need to maintain an accepted convention.

While a trial judge doesretain some discretion as to trial procedure, the lack of certainty as to the order of cross-examination could easily result in considerabletime being used by parties asking the Court to balance different competing factors in relation to different parties and different witnesses.Issues existing between specific parties might create a real or imagined advantage to the order in which other parties, including theCrown, should cross-examine. [8] In criminal cases, jointly tried accused have one overriding common interest and that is to gain an acquittal.

In some cases,jointly tried accused may have only that interest in common while they remain adverse in interest to each other in respect of one, some orall other issues. The Crown, however, is always adverse in interest to all accused, as it seeks convictions against all. [9] While counsel may consider it an advantage to be the last to cross-examine a witness, such is not always the case. There aresituations where it may be considered an advantage to be the first to cross-examine.

For example, a co-accused may wish to cross-examine an accused before the Crown to elicit evidence more favourable to his position and before the Crown has an opportunity to leadthe evidence in a different direction, or to enable the Crown to explore areas raised by the cross-examination of the co-accused in thecase of a “cut throat” defence.

In other cases it may be considered an advantage to cross-examine last as it provides an opportunity to“fix” the evidence to favor that party. [10] Quite simply, if the Court were forced in each case to consider balancing all of the competing factors in relation to eachwitness and each party in order to determine the order of cross-examination, a great deal of time and effort would be expended.

No costbenefit analysis would support such a function. [11] However, two things must always be borne in mind: the Court has an overarching duty to ensure a fair trial (though not aperfect one); and the trial judge does retain a residual discretion to do what is necessary to ensure a fair trial. Accordingly, if the Courtcan be satisfied that trial fairness requires a variation or modification to the accepted convention as to the order of cross-examination, orthe possibility of re-cross-examination, it has the inherent discretion to vary or modify the order to assure trial fairness.

The order ofcross-examination does not affect the principles regarding the scope of cross-examination by co-accused and the Crown as set out in R vCrawford, (SCC), [1995] 1 SCR 858, [1995] SCJ No 30 and cases following it. Conclusion [12] Unless trial fairness demands that the trial judge exercise discretion to the contrary, where two or more accused are triedjointly, and one or more accused testifies, it is the other jointly tried co-accused who cross-examines first, in order of their namesappearing on the indictment, and the Crown cross-examines last. [13] In this case, Mr.

Klaus was cross-examined first by counsel for Mr. Frank following which he was cross-examined by theCrown. Heard on the 22nd day of November, 2017. Dated at the City of Red Deer, Alberta this 24th day of November, 2017. Eric F. Macklin J.C.Q.B.A.

Appearances: D. Taylor D. Sopko A. MacDonald for the Crown A. Fay for Jason Klaus T. Roulston A. Urquhart for Joshua Frank