R v Lyttle

R. v. Lyttle

[2004] 1 S.C.R. 193
Supreme Court of Canada — Major and Fish JJ. | February 12, 2004

Background

Stephen Barnaby was viciously beaten by five men with baseball bats outside a Toronto apartment building. He told police he'd been attacked over a gold chain, and later identified Michael Lyttle in a photo lineup as one of his attackers. But two police officers wrote in their reports that they believed the beating was actually about an unpaid drug debt — not a gold chain.

The Crown decided not to call those officers as witnesses. Defence counsel wanted to cross-examine Barnaby about the drug debt theory, suggesting he was lying to protect his real attackers (his drug associates). The trial judge said no — if defence counsel wanted to ask those questions, she'd have to promise to call evidence later to back up her theory. When she refused to make that promise, the judge threatened a mistrial. Eventually, defence counsel was forced to call the police officers herself, which cost Lyttle his right to address the jury last.

Issues

1. Can a trial judge require defence counsel to provide an evidentiary foundation before allowing cross-examination on a particular theory?
2. What is the "good faith" standard for cross-examination questions?

The Right to Cross-Examine

The Supreme Court was crystal clear: the trial judge was dead wrong. Cross-examination is a fundamental right protected by sections 7 and 11(d) of the Charter. Defence counsel can ask questions about matters that don't need to be proven independently, as long as there's a "good faith basis" for the question.

"Good faith" doesn't mean you need admissible evidence. It means the information might be incomplete or uncertain, but you're not asking reckless questions or questions you know are false. You can pursue "any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition." Here, defence counsel had police reports, Barnaby's drug conviction, and his admission at the preliminary hearing that he'd dealt drugs — more than enough for good faith.

The court distinguished R. v. Howard (the case the trial judge relied on), explaining it only applied to expert witnesses being asked to consider inadmissible evidence, not to ordinary cross-examination of lay witnesses.

Key Takeaway

You don't need to prove your cross-examination questions — you just need an honest belief they might be true.

If you're self-represented and want to cross-examine a witness about something that supports your theory of the case, you don't need to promise the court you'll call evidence later to back it up. As long as you have some reasonable basis for your questions and you're asking them in good faith, the judge should let you proceed.