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Civil Litigation - Browne v Dunn
MORE CASES
Part 2
. R. v. Millard
In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In these quotes the court considers the interesting issue of whether the rule in Browne v Dunn applied to impeach one's own witnesses:I. DID THE TRIAL JUDGE ERR BY PERMITTING THE CROWN TO CONTRADICT ITS OWN WITNESSES WITHOUT PRIOR CONFRONTATION?
[112] Crown witnesses, Dr. Khattak and Ms. Orr, provided testimony that if true, would prove that Ms. Babcock was alive after Mr. Millard allegedly killed her. Mr. Millard seeks to rely for the same purpose on a prior statement he alleges that Crown witness Mr. Dean made. In its jury address the Crown relied upon Ms. Babcock’s cellphone records to argue that witnesses who claimed to have had contact with Ms. Babcock after the early morning hours of July 4, 2012, were mistaken. It did so without first confronting any of these witnesses with those records. Mr. Millard argues that this was unfair, and that the trial judge erred by permitting it. I do not agree.
[113] The rule invoked by Mr. Millard, the “rule in Browne v. Dunn,” operates to discourage parties from attempting to discredit opposing counsel’s witnesses with contradictory evidence, without first confronting those witnesses with that evidence during cross-examination: R. v. McNeill (2007), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at paras. 44‑45; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81 (C.A.), at paras. 75‑86. Mr. Millard appreciates that, technically, this rule does not apply because the material witnesses in this case were not opposing witnesses, but Crown witnesses who were never subjected to cross-examination by the Crown. He argues that the unfairness he identifies is nonetheless “akin” to breaches of the rule in Browne v. Dunn.
[114] I would not give effect to this ground of appeal.
[115] I will begin with the suggestion that it was unfair of the Crown not to confront Mr. Dean with the phone records. Simply put, there can be no reasonable expectation that the Crown would have done so because Mr. Dean’s evidence was entirely consistent with the Crown theory as to the time of Ms. Babcock’s death. He denied making an out of court statement about having seen her on or after July 10, 2012, and no such statement was ever proved.
[116] In contrast, there was evidence from Dr. Khattak and Ms. Orr about contact with Ms. Babcock after the point in time the Crown theorized that Ms. Babcock was dead, that was contradicted by inferences arising from Ms. Babcock’s cellphone records. There are three reasons why I do not accept Mr. Millard’s submission that it was unfair for the Crown not to have confronted Dr. Khattak and Ms. Orr with those records.
[117] First, a party cannot cross-examine its own witnesses without leave, and it would doubtlessly have constituted cross-examination had the Crown attempted to confront these witnesses with Ms. Babcock’s cellphone records in order to contradict the testimony they had provided. Moreover, there were no available legal mechanisms that the Crown could use to obtain leave to cross-examine, even if it was of a mind to do so. Neither witness was hostile, and the Crown was not relying on inconsistent statements made by those witnesses. Simply put, there would have been technical impediments to the confrontation Mr. Millard proposes.
[118] Second, and relatedly, if Mr. Millard thought that these witnesses would have testimony capable of neutralizing the cellphone records or dampening their effect, subject to irrelevance objections he could have confronted them with the records.
[119] Ultimately, there is nothing improper with a party asking the trier of fact to prefer some of its evidence, over other evidence that it has called, where that other evidence does not serve its theory of the case. This happens frequently, for example, where an identification witness deviates from the description provided by other witnesses the Crown considers to be more reliable. I see no problem with the Crown inviting jurors to prefer the circumstantial inferences supported by the cellphone records to the testimony of some of its witnesses.
[120] I would dismiss this ground of appeal. . Morey v. C.A.T. Inc.
In Morey v. C.A.T. Inc. (Ont CA, 2023) the Court of Appeal cited the failure of the adducing party to follow the impeachment requirements of Evidence Act s.20 as a factor in having their affidavit struck:[10] Turning to his final ground of appeal, the appellant sought to impeach Ms. Laurendeau on her evidence about how many trucks were currently at the Nappanee terminal by putting to her a prior statement in an affidavit. The appellant did not comply with s. 20 of the Evidence Act, R.S.O. 1990, c. E.23, in how he proceeded. ... . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the rule in Browne v Dunne, typically considered in a criminal context, here in an administrative context:[35] The Appeal Division also rejected this argument, explaining that the Appellant did have notice that her evidence was being impeached. The panel stated, at paras. 14-19:The rule in Browne v. Dunn stems from a scenario where the plaintiff’s witnesses were not given notice that their evidence would be impeached, and were not cross-examined in relation to their evidence. The impeaching evidence was introduced without notice to the plaintiff, after the plaintiff’s case was closed and there was no opportunity to respond to the impeaching evidence. That fact situation is completely different from what occurred at the hearing of this matter.
Here, the hearing was convened specifically to address the allegation that the appellant had failed to respond to the Society. The appellant was fully aware of that allegation – it was the only and core issue of the hearing.
The appellant was also aware of the fact that the Law Society would be tendering evidence from its investigator to support its case. At the hearing of August 24, 2018, the appellant introduced last-minute evidence (an affidavit sworn August 22, 2018) asserting that she had indeed responded. On August 23, the Law Society in turn filed last-minute rebuttal evidence to refute that assertion...
The record shows that the appellant did have notice that her credibility would be impeached. The Law Society had filed its rebuttal material prior to the hearing, and the appellant was aware of the material and had had an opportunity to review it, as we discuss below.
Also, at the hearing, the appellant was cross-examined on the truthfulness of her sworn affidavit. She was directly questioned about the fact that she said, in her August 22 affidavit, that she had responded to the Society on June 11, 2018. She was also questioned about why she had not mentioned this in an e‑mail to the investigator on June 18, 2018.
We find in these circumstances the rule in Browne v. Dunn was not violated. The rule in Browne v. Dunn is not applicable where it is “otherwise perfectly clear that [the person being impeached] has had full notice beforehand that there is an intention to impeach credibility of [the] story.” The Divisional Court has recently affirmed that parties who are well aware of the allegations made against them need not be cross-examined on those allegations [Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2019 ONSC 4294 (Div. Ct.), at para. 78]. [36] The Law Society proceeded first at the trial. The Appellant knew that the Law Society’s position was that it had no record of receiving the Appellant’s letter in its mail room on June 11, 2018, and that it would ask the Tribunal to draw an inference that the letter had not been delivered. The Appellant was specifically asked on cross-examination why, when she emailed the Law Society investigator on June 18, 2018 to inquire about her extension request, she made no reference to having personally delivered the material on June 11, 2018. She was unable to provide an explanation for this omission. This was an important basis for the Hearing Division’s rejection of her claim.
[37] I agree with the conclusions of the Hearing Division and the Appeal Division that there was no unfairness and in these circumstances the rule in Browne v. Dunn was not violated. . R. v. Jarrar
In R. v. Jarrar (Ont CA, 2023) the Court of Appeal considered the appropriate response to a Browne v Dunn violation:[19] As stated, it is difficult to discern what exactly the appellant’s concern with his counsel’s conduct is because he also alleges that they were wrong to not insist that the complainant be recalled to the stand after the Crown closed its case, because of an alleged violation of the rule in Browne v. Dunn. That said, even this is difficult to know because, on this question, he appears to lay the blame squarely at the feet of the trial judge. In either case, there is no merit to this argument. Even when the rule in Browne v. Dunn is violated, the remedy is often for it to go to weight: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 119, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 203. As such, the failure to have the complainant recalled – either at the request of defense counsel or on the trial judge’s own motion – falls well short of the threshold for either an ineffective assistance finding or a mistrial. . R. v. M.B.
In R. v. M.B. (Ont CA, 2022) the Court of Appeal briefly characterizes the practice rule in Browne v Dunn:[60] First, the basis on which the appellant’s trial counsel put the matter to the trial judge was a perceived obligation under the principle in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). This principle requires a party who intends to challenge a witness’ credibility by calling contradictory evidence to give the witness an opportunity to address the contradictory evidence in cross-examination: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 75, leave to appeal refused, [2016] S.C.C.A. No. 203. The principle is grounded in fairness. It does not speak to the scope of cross-examination as much as it speaks to the possible remedies flowing from a breach of the principle. .... . Jacobi v. Winners Merchants International LP
In Jacobi v. Winners Merchants International LP (Div Ct, 2022) the Divisional Court considers impeachment of a witness:[41] .... And this conclusion goes to a fundamental principle of witness impeachment. Where it is put to a witness that there is a contradiction or discrepancy in her evidence, or a conflict with other reliable evidence, the witness is entitled to explain it. It is for the trier of fact to assess that explanation. This principle is fundamental to trial fairness to the point that, if a party fails to put a contradiction to a witness, that party may be precluded from relying on the contradiction at the end of the case: Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (UK HL); R. v. Quansah, 2015 ONCA 237, para. 77. . R. v. Megill
In R. v. Megill (Ont CA, 2021) the Court of Appeal considers the rule in Browne v Dunn:[110] In general terms, a party who intends to impeach a witness called by an opposite party must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence. This rule, the rule in Browne v. Dunn as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at para. 76, leave to appeal refused, [2016] S.C.C.A. No. 203.
[111] The rule in Browne v. Dunn is rooted in considerations of fairness:i. to the witness whose credibility is attacked, by alerting the witness to the intended impeachment and offering the witness the opportunity of explanation;
ii. to the party whose witness is impeached, by providing notice, thus the opportunity to decide about introducing confirmatory evidence; and
iii. to the trier of fact, by ensuring that it is not deprived of the full picture of the impeachment and its response, thus not compromising the accuracy of its verdict. See Quansah, at para. 77. . Liu v. Huang
In Liu v. Huang (Ont CA, 2020) the Court of Appeal considered how strict the rule in Browne v Dunn is:[21] Finally, the trial judge did not misapply the rule in Browne v. Dunn. This rule of trial fairness requires parties to cross-examine opposing witnesses on points that the party will later seek to contradict by calling evidence to that effect and thereby give witnesses the opportunity to address major contradictions so that their evidence can be assessed fairly. It is not an inflexible rule but rather a matter within the trial judge’s discretion. Its application is therefore subject to significant deference on appeal: see Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 530, at paras. 27-29; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 80-82, leave to appeal refused, [2016] S.C.C.A. No. 203. . R. v Quansah
In R. v Quansah (Ont CA, 2015) the Court of Appeal expounded broadly on the principles underlying the "rule in Browne v Dunn", as follows:[75] In Browne v. Dunn, Lord Herschell, L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 134 C.C.C. (3d) 131 (Ont. C.A.), at p. 141; and R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 144 C.C.C. (3d) 551 (Ont. C.A.), at para. 44.
[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example in Australia, practitioners describe it as a “puttage” rule because it requires a cross-examiner to “put” to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner’s own witness or witnesses.
[77] The rule is rooted in the following considerations of fairness:i. Fairness to the witness whose credibility is attacked: The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, 2013 ONCA 744 (CanLII), 313 O.A.C. 226, at para. 17; Browne v. Dunn, at pp. 70-71.
ii. Fairness to the party whose witness is impeached: The party calling the witness has notice of the precise aspects of that witness’s testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and
iii. Fairness to the trier of fact: Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict. [78] In addition to considerations of fairness, to afford the witness the opportunity to respond during cross-examination ensures the orderly presentation of evidence, avoids scheduling problems associated with re-attendance and lessens the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted.
[79] Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness’s evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it: R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.), at pp. 206-207; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.), at pp. 313-314.
[80] As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 124, at paras. 21-22; R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 211, at para. 42.
[81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at pp. 375-376; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.
[82] In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the cross-examining party does not accept the witness’s version of events. Where the confrontation is general, known to the witness and the witness’s view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
[83] It is worthy of reminder, however, that the requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.
[84] The potential relevance to the credibility of an accused’s testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness’ testimony depends on several factors. The factors include but are not limited to:i. the nature of the subjects on which the witness was not cross-examined;
ii. the overall tenor of the cross-examination; and
iii. the overall conduct of the defence. See Paris, at para. 23.
[85] Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused’s credibility. On the other hand, where a central feature of a witness’s testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused’s credibility: Paris, at para. 23.
[86] The confrontation principle is not violated where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness’s story: Browne v. Dunn, at p. 71. Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule: Verney, at p. 376. . Yan v. Nadarajah
In Yan v. Nadarajah (Ont CA, 2017) 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. . R v Kirlew
In R v Kirlew (Ont CA, 2017) the Court of Appeal states the essence of the 'rule in Browne v Dunn' briefly as follows:[8] The rule in Browne v. Dunn requires that, in the interests of fairness, where a party intends to challenge the credibility of a witness, the party must provide the witness with an opportunity to address the point upon which the witness’ credibility is attacked.
[9] However, this is neither a fixed nor inflexible rule. As this court recently explained in R. v. Quansah, 2015 ONCA 237 (CanLII), 331 O.A.C. 304, at para. 80, the extent of the application of the rule “lies within the sound discretion of the trial judge and depends on the circumstances of each case” (citations omitted). Further, and importantly, compliance with the rule requires that “the cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’ credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’ story is not accepted” (emphasis in original, citations omitted). . R v Vassel
In R v Vassel (Ont CA, 2018) the Court of Appeal reviews the rule Browne v Dunn:[119] To begin, the rule in Browne v. Dunn (1894), 1893 CanLII 65 (FOREP), 6 R. 67.
[120] The rule is one of fairness, thus not a fixed or invariable rule, much less a rule of admissibility. The extent of its application rests within the sound discretion of the trial judge, a discretion that is subject to significant deference on appeal: R. v. Quansah, 2015 ONCA 237 (CanLII), 125 O.R. (3d) 81, at paras. 76-77 and 80, leave to appeal refused, [2016] S.C.C.A. No. 203
[121] Compliance with the rule in Browne v. Dunn requires a cross-examiner to confront the witness with matters of substance, not inconsequential detail, on which the cross-examining party seeks to impeach the witness and call contradictory evidence: Quansah, at para. 81. When it is apparent from the tenor of counsel’s cross-examination of a witness that the cross-examiner does not accept the witness’s version of events, the confrontation is general and known to the witness, and the witness’ view on the contradictory matter is apparent, specific confrontation of the witness is not necessary: Quansah, at para. 82.
[122] As a rule of fairness, no fixed relation exists between a breach of the rule in Browne v. Dunn and the remedy available for that breach. No single or exclusive remedy follows from the breach. It is for the trial judge to say what remedy is best suited to maintain fairness in the trial process: Recall of the witness, for instance. A jury instruction about the impact of the failure to cross-examine on the jury’s assessment of credibility and reliability. Or something else entirely. A remedy decision also attracts deference on appeal: Quansah, at paras. 117-118. . Curley v. Taafe
In Curley v. Taafe (Ont CA, 2019) the Court of Appeal stated as follows:(2) The Browne v. Dunn error
[27] The rule in Browne v. Dunn creates an obligation to give a witness, called by the opposite side, an opportunity to explain evidence which the cross-examiner intends to later use to impeach the testimony or credibility of the witness. This rule was expressly adopted in Canada in Peters v. Perras (1909), 42 S.C.R. 244.
....
[31] Trial judges do have discretion as to the remedy to be afforded for a breach of the rule in Browne v. Dunn, if a breach has occurred. The effect that a court should give to a breach of the rule depends on a number of factors and the circumstances of the case: R v. Dexter, 2013 ONCA 744, 313 O.A.C. 266, at para. 20; R v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9. In Dexter, this court delineated two permissive options to rectify a breach of the rule. First, the trial judge can take into account the breach of the rule when assessing a witness’s credibility and deciding the weight to attach to that witness’s evidence: Dexter, at para. 21; Werkman, at para. 9; R v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124. Second, the trial judge can also allow counsel to recall the witness whose evidence was impeached without notice: Dexter, at para. 21; R v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (Ont. C.A.), at paras. 47-49.
[32] Although such discretion rests with trial judges, here the rule was not engaged, as occurred in Yan v. Nadarajah, 2017 ONCA 196, 82 R.P.R. (5th) 175, at paras. 15-16:We agree with the 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, 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), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376, cited in R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at para. 73.
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. [Citations in original.] . R. v. Forrester
In R. v. Forrester (Ont CA, 2019) the Court of Appeal commented as follows on the rule in Browne v Dunn:[34] The rule in Browne v. Dunn is a rule of trial fairness. It requires a party cross-examining a witness to give notice to a witness whose credibility the cross-examiner intends to later impeach: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at paras. 4, 17-22. The effect to be given to a breach of the rule is in the discretion of the trial judge, having regard to all the circumstances. It may include permitting counsel to recall the witness whose evidence has been impeached without notice. It may also include taking into account the failure to cross-examine when assessing the credibility of the party who failed to cross-examine: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22.
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