Explanation of what the Crown is seeking
The defence teams are continuing to challenge the Crown’s allegations of inconsistencies in Howden’s testimony.
For an explanation of what the Crown is seeking today, we spoke with Sarah Leamon, a B.C.-based criminal defence lawyer.
Leamon told CBC News that the Crown is in a position now where they are seeking to cross-examine their own witness in relation to a prior statement that was given on an out-of-court basis.
“In order to engage in an attack or a question on the credibility of their own witness, they are required to ask the court to make a finding that they are able to cross-examine.”
On Tuesday, Cunningham asked Howden to read past statements, but would not herself read them or have Howden read them in court.
Leamon said that’s because a prosecutor in this scenario would not be able to ask a leading question on a contentious issue.
“It’s not for the Crown to then put suggestions to the witness, for example, or to read prior statements or pieces of evidence that the witness hasn’t elicited themselves on the stand into the record,” she said.
“So in this situation, if the Crown wishes to introduce the evidence that this witness provided in a prior statement, on an out-of-court basis, they must do that by way of cross-examination.”
And that’s why, according to Leamon, Cunningham is seeking the Section 9(2) application of the Canada Evidence Act.
“I think the important thing to keep in mind here is that the Crown is likely going to be applying to do something that is a little bit unusual, although not unheard of, in relation to their own witness,” Leamon said.
“Ultimately the decision is going to rest with the court as to whether they allow them to proceed in this manner or not.”
