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Evidence - Rule in Browne v Dunn

Yan v. Nadarajah (Ont CA, 2017)

In this case the Court of Appeal clarifies when the 'Rule in Browne v Dunn' applies to require a cross-examining party to 'put' (present) their conflicting version of facts to the witness for their response:
[14] The appellants argued on the motion and the appeal that the respondents’ counsel violated the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). They submit that the breach of the rule occurred during their cross-examination when the respondents’ counsel failed to tender their evidence in their July 24, 2011 affidavits, ask them whether they made the statements and give them an opportunity to explain them. The appellants submit that as a consequence of this breach the respondents cannot rely on the evidence in the affidavits.

[15] We agree with the motion judge that the appellants seem to have misunderstood the rule in Browne v. Dunn. The application of that rule is generally restricted to situations where a party cross-examining a witness called by the opposite side is planning on adducing contradictory evidence to impeach the witness’s credibility. The cross-examiner must “put” the contradictory evidence to the witness to allow the witness to provide an explanation for it: R. v. Quansah, 2015 ONCA 237 (CanLII), 125 O.R. (3d) 81, at paras. 75-76, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 203. The rule reflects fairness to the witness whose credibility is attacked and to the party whose witness is impeached. It “prevents the ‘ambush’ of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter”: R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376, cited in R. v. M.B., 2009 ONCA 524 (CanLII), 68 C.R. (6th) 55, at para. 73.

[16] In the present case, there was no element of the kind of unfairness or surprise that the rule in Browne v. Dunn protects against. The contradictory evidence used to impeach the appellants came in the form of the appellants’ own affidavits. Moreover, at the beginning of the cross-examination the appellants were asked whether there was anything in their affidavits that was incorrect or needed to be changed. They declined to make any changes or corrections. In the circumstances, there was no violation of the rule in Browne v. Dunn.

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