The Crown’s job in cross-examination

Legal experts watching this trial say Crown lawyer Meaghan Cunningham had a big challenge in cross-examinating Hart today.

“It is a tall order to discredit a defendant, especially one who has been consistently denying the allegations,” says Lydia Riva, a criminal defence lawyer from Whitby, Ont., who’s not involved in this case.

“You're not really expecting in a case like this for the Crown to break down the defendant so that he basically confesses his involvement.”

Cunningham cross-examined Hart on issues of his memory, including whether it has been impacted by his level of intoxication.

“She's put to him at times that he's even feigning memory to protect other people in the room. But ultimately, she's trying to discredit him so that the trial judge ultimately will disbelieve his evidence,” Riva suggests.

But if Justice Maria Carroccia, after listening to Hart’s evidence, does not believe it, she still has to consider if it raises a reasonable doubt.

Even if she doesn’t believe what he’s saying, Carroccia has to consider if the Crown has proven its case, again beyond a reasonable doubt, and whether the complainant’s evidence is enough to prove the case, Riva says.

If the Crown’s case is weak, it’s difficult to rehabilitate it just from their cross-examination of the defendant, she adds.

“This is not a credibility contest between the defendants and the complainant.”

Riva says proving a case beyond a reasonable doubt “is a high burden … the trial judge is going to have to look at the evidence of the complainant and determine whether or not it's enough.”