Carl Holmes Leep-Ngeen Lem

During a criminal trial for immigration-related offences, the Crown brought an application under s. 9(1) of the Canada Evidence Act to declare its own witness adverse and hostile.

The witness, a former co-accused who had previously pled guilty, was evasive, repeatedly claimed memory loss, and refused to refresh his memory from his prior Agreed Statement of Facts and preliminary inquiry testimony.

The court found the witness to be both adverse under the Act and hostile at common law, noting his clear motive to protect the accused and his refusal to provide helpful evidence.

The Crown was granted leave to cross-examine the witness at large.