Full opportunity defined

Section 715(1) of the Criminal Code provides:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

And where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [Emphasis added.]

Today’s decision in R. v. Lewis, 2009 ONCA 874 explains the meaning of “full opportunity” in the following terms:

 [68]         The better approach, in my view, is to limit consideration of the “full opportunity” requirement to cases where, for example, a witness refuses to answer questions in cross-examination, a witness dies or disappears in the midst of cross-examination, or where the presiding judge curtails cross-examination by imposing improper limitations or restrictions. It should not apply where the failure to cross-examination stems from an accused person’s ignorance of potentially useful information, no matter the cause or reason. Those situations, in my view, are best dealt with under trial fairness, where, as I have indicated, the reason for the missing information can properly be taken into account as a factor.