The Rule in Browne v. Dunn

The Rule in Browne v. Dunn

The rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), addresses the problem where a witness is contradicted by other testimony, but where opposing counsel has not put the alternate version of events to that witness in cross-examination.

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. 

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, 68 C.R. (6th) 55, at para. 73.

However, this is neither a fixed nor inflexible rule.  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.”

[In two recent appeals before the Court of Appeal for Ontario, (R.  v. Kirlew, 2017 ONCA 171 and Yan v. Nadarajah, 2017 ONCA 196), the Court found that there was no element of the kind of unfairness or surprise that the rule in Browne v. Dunn protects against].

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 mine).

R. v. Quansah, 2015 ONCA 237, 331 O.A.C. 304, at para. 80; See R. v. Kirlew, 2017 ONCA 171 for a recent application of this principle.

The application of the rule was discussed by Watt J.A. in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 203:

·       The decision as to whether there was a breach of the rule, and if so what the remedy should be, depends on the circumstances of each case and attracts substantial deference: paras. 80, 118.

·       Counsel need not confront the witness with every scrap of contradictory evidence, but should do so on matters of substance that a witness has not had an opportunity to explain: para. 81.

·       In some cases, it is apparent that the cross-examining counsel 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”: para. 82.

·       “Where the subjects not touched in cross examination but later contradicted are of little significance in the conduct of the case and resolution of critical issues of fact, the failure to cross examine is likely to be of little significance to an accused’s credibility”: para. 85.

Watt J.A. stated at para. 117 that the remedy for a violation of the rule in Browne v. Dunn, if any, depends on many factors, including:

·       The seriousness of the breach;

·       The context of the breach;

·       The timing of the objection;

·       The position of the offending party;

·       Any request to permit recall of a witness;

·       The availability of the impugned witness for recall; and

·       The adequacy of an instruction to explain the relevance of failure to cross examine.