|
Presentation - Use of Court-Produced Materials by Presenters. R. v. Y.Y.
In R. v. Y.Y. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal.
The court considered a Browne v Dunn issue, here in a self-representing criminal defendant context where the court noted "that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet":(iii) The trial judge did not make a Browne v. Dunn error
[19] The Crown raised an objection during the defence case that evidence was being led on issues that had not been put to M.Y when she was cross-examined. The appellant continued to lead evidence that elicited further objections of this nature. By the time the case was going to the jury the Crown had raised numerous areas where, in the Crown’s view, the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) had been breached. The Crown’s position was that the remedy for this should be an instruction to the jury as it was not practical to recall M.Y.
[20] The trial judge agreed that it was impractical and unfair to recall M.Y. He decided to address the Browne v. Dunn issue in his charge to the jury. He instructed the jury on the rule, describing it as one of fairness. He then listed some “topics or areas of the evidence” where M.Y. was not given an opportunity to present her position. The trial judge told the jury that “there may or may not be other instances like this that you will think of” or that they may disagree with the instances the trial judge described. He went on to tell the jury that if they were of the view that evidence was led on issues that should have been, but were not, put to M.Y., then:[I]n such circumstances, when assessing the credibility and reliability of the witnesses and the extent to which you are prepared to rely on their testimony, you should keep this rule of fairness [the rule in Browne v. Dunn] in mind. It is for you to decide whether and to what extent the failure to put to [M.Y.] the contradictory evidence called later impacts the extent to which you are prepared to accept and rely upon the evidence of the witnesses. [21] The appellant submits that the trial judge erred in suggesting to the jury that there had been breaches of Browne v. Dunn. He submits that the areas identified were peripheral, and that in substance M.Y.’s position on them was made known in her evidence. He underscores the context of the appellant having been a self-represented litigant at trial.
[22] We disagree.
[23] On the issue of fairness to a self-represented litigant, we note that the appellant was provided, before trial, with a “Trial Information for Self-Represented Accused” booklet which explained trial procedure including the substance of the rule in Browne v. Dunn and the potential consequence of a violation. It stated:[I]f you are going to challenge a witness’ recollection of events or statements, you should cross-examine that witness on your version of events. If you fail to do so, it may make your suggested version of the events less compelling because the witness was not given a chance to provide his or her explanation of the events. [24] As well, cross-examination of M.Y. was conducted by s. 486.3 counsel, and it would be expected that he was briefed by the appellant on what evidence he planned to lead so that the cross-examination of M.Y. could be appropriately tailored to avoid Browne v. Dunn concerns.
[25] On the issue of whether there were violations of the Browne v. Dunn rule, as well as the remedy chosen, the trial judge’s determinations are entitled to deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 118, 121, leave to appeal refused, [2016] S.C.C.A. No. 203.
[26] We see no reversible error in the trial judge’s determinations that the rule appeared to have been violated in the instances that the trial judge identified.
[27] As for remedy, a trial judge is entitled to refuse to require a witness to be recalled to cure the other party’s violation of the rule, especially where, as here, the witness has already testified at length about sexual matters: R. v. M.F.1 & P.F., 2010 ONSC 4018, at para. 29, aff’d 2012 ONCA 807. An instruction, such as the one the trial judge gave, that advises the jury that they may take the violation into account in assessing credibility, while leaving it to the jury to decide whether to do so and the weight to assign to that factor, is a proper remedy in such circumstances: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (C.A.), at para. 27, leave to appeal refused, [2001] S.C.C.A. No. 124.
[28] We therefore reject this ground of appeal.
|
