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Browne v Dunne

. 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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