Adverse or hostile

R. v. Figliola, 2011 ONCA 457 deals with the distinction between an adverse and a hostile witness:

[48]         The Crown sought an order under s. 9(1) declaring Ms. Pignatelli an adverse witness.  The trial judge made an order declaring Ms. Pignatelli an adverse witness.  The Crown did not seek, nor did the trial judge grant, an order declaring her a hostile witness, and, contrary to Ms. Pignatelli's submission, the trial judge did not make an order granting the Crown leave to cross-examine Ms. Pignatelli at large.  Perilously, though, everyone appears to have assumed that such an order had been made.  The Crown proceeded to cross-examine the witness forcefully in a wide-ranging fashion – and with considerable success – with no intervention by the trial judge and no objection from defence counsel (not counsel on the appeal) or request for a limiting instruction to the jury.

[49]         However, this seamless move to a cross-examination at large was misguided.  In Ontario, a ruling that a witness is "adverse" pursuant to s. 9(1) of the Canada Evidence Act is not the equivalent of a common law declaration of "hostility" entitling the beneficiary of the ruling to cross-examine the witness at large.  This court has held that adversity and hostility are not synonymous for these purposes: Wawanesa Mutual Insurance Co. v. Hanes, [1961] O.R. 495 (C.A.); R. v. Cassibo (1982), 39 O.R. (2d) 288 (C.A.). See also, R. v. Vivar, [2004] O.J. No. 9 (S.C.), at paras. 11-12; R. v. S.W.S., [2005] O.J. No. 4958 (S.C.); R. v. Osae, 2010 ONSC 3108; R. v. Gushue (No. 4), 1975 CarswellOnt 25 (Ont. Co. Ct.); R. v. Cronshaw (1976), 33 C.C.C. (2d) 183 (Ont. Prov. Ct.).

[50]         This jurisprudence confirms that an "adverse" witness is one who is opposed in interest or unfavourable in the sense of opposite in position to the party calling that witness, whereas a "hostile" witness is one who demonstrates an antagonistic attitude or hostile mind toward the party calling him or her.  In R. v. Coffin (1956), 114 C.C.C. 1 (S.C.C.), at p. 24, Kellock J. described a hostile witness as one who does not give his or her evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution. 

[51]         The common law right of a party to cross-examine his or her own witness at large with leave of the trial judge, if in the judge's opinion the witness is "hostile", is not affected by s. 9(1) of the Canada Evidence Act: Cassibo, per Martin J.A., at p. 302.   Section 9 makes no reference to a witness "proving hostile" and contains no suggestion of a right to cross-examine at large.  As Porter C.J.O. pointed out in Wawanesa, a declaration of hostility and its consequences are something that arise "in addition [to]" a finding of adversity.  At pp. 507-508, after reviewing the steps to be taken by a judge in deciding whether to make a declaration of adversity and the factors to be considered, he stated that "[t]he Judge, if he declared the witness hostile, might, in addition permit him to be cross-examined" (emphasis added).  It follows that a declaration of adversity pursuant to s. 9(1) was not, itself, sufficient to trigger a right in the Crown to cross-examine Ms. Pignatelli generally as to all matters in issue.