Fairness On Cross-Examination

 

One missing question can be the whole appeal, and that’s where we start. We walk through a B.C. Court of Appeal decision arising from a judge-alone second-degree murder trial where the accused admits indignity to human remains but denies murder, claiming an accidental death during consensual sex and blaming memory gaps on intoxication. The legal tension is sharp: if the Crown wants to argue the intoxication story is fabricated, do they have to put that allegation directly to the accused in cross-examination?

From there, we explain the Brown and Dunn principle in plain language and why it sits at the centre of fairness in Canadian evidence law. We talk about what it means to confront a witness with your theory, what counts as a real opportunity to respond, and why appellate courts look at the entire trial record instead of treating the rule like a technical “gotcha.” If you care about criminal procedure, credibility findings, and how appellate review actually works, this is a must-hear breakdown.

We then shift into the NCRMD system, where the words “not criminally responsible” can be deeply misunderstood. A woman with treatment-resistant schizophrenia grabs a child on a bus, truly believing the child is hers, and ends up in secure psychiatric custody for years. We unpack Review Board decisions, the “significant threat to the safety of the public” test, and how mental health law can mean detention with no fixed end date.

To close, we tackle a home invasion conviction built on circumstantial evidence like DNA on masks and cell tower data, plus a thorny issue about a trial judge relying on material in a court file that was not marked as an exhibit. Subscribe, share the episode, and leave a review, then tell us: where should courts draw the line on fairness and proof?

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.