The Perils of not Holding to the Rule in Browne v. Dunn




The rule in Browne v. Dunn is rooted in the principle of fairness, principally to a witness whose credibility is challenged on cross-examination and to the party who called the witness.

As Lord Chancellor Hershell explained the rule at p. 70 of Browne v. Dunn:

“[I]f you intend to impeach a witness you are bound, whilst he is in the box, to give him opportunity of making any explanation which is open to him.”

Aspects of the rule include the following:

·   Although counsel are not required to confront a witness with every bit of evidence upon which he or she may be contradicted, fairness requires that the witness be confronted on contradictory matters of substance so that the witness can be given an opportunity to explain.

R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 81, leave to appeal refused [2016] S.C.C.A. No. 203; R. v. Vorobiov, 2018 ONCA 448, at paras. 42-43.

·    However, even on matters of substance, the witness need not be confronted with contradictory evidence if the witness’ view on that contradictory evidence is already apparent.

·       A trial judge has a broad range of discretion in fashioning an appropriate remedy when the rule is breached and significant deference must be shown to that exercise of discretion.

Vorobiov, at para. 43.

Perhaps the most adequate response to a violation of the rule is for the court to recall the witness and to obtain from them, under oath, a response to the contradictory evidence.  

Where the remedy of recalling the witness is not viable, the failure to cross-examine a witness on contradictory aspects of an accused’s account is a factor that may be considered in determining the weight to give to the accused’s evidence or account.

This is sensible given that by skirting the rule, one avoids the prospect of having the evidence impugned by the very person whose credit it attacks.  As the evidence has not been subject to this test, it is less reliable than it would otherwise be.  Accordingly, the trial judge may reduce the weight of that evidence, sometimes considerably.

See R. v. Schoer, 2019 ONCA 105, where the accused’s contradictory evidence, adduced in violation of the rule, was held to be no more than a set of self-serving statements.

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

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