Stuart O'Connell Criminal Law Blog

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 witnes...

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...