R v Peets, 2024 ABCA 48
[118] As said in R v M(RJ), 2023 MBCA 28 at para 23, [2023] MJ No. 91 (QL):
Whether the rule is engaged is a question of law reviewable on a standard of correctness. If a trial judge is satisfied that there is a breach of the rule they have a broad discretion to determine the appropriate remedy. The extent of the rule's application is within the discretion of the trial judge which, absent an error in principle, is entitled to deference (see R v Lyttle, 2004 SCC 5 at para 65; R v Drydgen, 2013 BCCA 253 at para 22; R v Dexter, 2013 ONCA 744 at para 22; R v Abdulle, 2016 ABCA 5 at para 10; Chandroo c R, 2018 QCCA 1429 at para 13; R v Willis, 2019 NSCA 64 at para 9; Dowd at para 21; and R v Cupid, 2021 ABCA 386 at para 22).
Trial fairness on this issue is also assessed for correctness: R v Abdulle, 2016 ABCA 5 at para 10, 609 AR 396.
[119] In R v Marjanovic and Soroush, 2022 MBCA 84 at para 37, 84 CR (7th) 290, the Court said:
The application of the rule is fact-driven. As a result, a trial judge has a broad discretion in determining whether the rule is engaged. As stated by the Supreme Court in R v Lyttle, 2004 SCC 5, the rule "is not fixed. The extent of its application is within the discretion of the trial judge after taking into account all the circumstances of the case" (at para 65). Therefore, a trial judge's decision in this regard is entitled to deference absent an error in principle (see Dowd at paras 5-6; R v Quansah, 2015 ONCA 237 at para 90, leave to appeal to SCC refused, 37013 (22 September 2016); R v Knox, 2017 SKCA 8 at para 53; and Shephard v R, 2019 NBCA 76 at para 77).
See also R v Chandroo, 2018 QCCA 1429 at paras 13-16, [2018] QJ No 8321 (QL).
[120] The argument for the appellant on this Browne v Dunn ground begins that the witness, Cst Link, was “not being impeached” by the appellant, who subsequently offered evidence significantly contrary to his version without questioning Cst Link on the same points. The implication is that there was no Browne v Dunn breach and the trial judge erred to have approached that evidence from that perspective.
[121] That reasoning for the appellant amounts to a narrowing of the purpose of the goals of the reasoning in Browne v Dunn which we reject. While it is often the case that it is unfair to the witness to allow the calling of evidence about the events described by the witness, that is not the only issue of fairness raised by the logic and purpose of the reasoning in Browne v Dunn. Later cases discussing Browne v Dunn do not crib and confine that logic in such a manner.
[122] To be fair, the language of Lord Herschell in Browne v Dunn does talk about unfairly impeaching the evidence of a witness, but the Supreme Court of Canada explained in R v Lyttle, 2004 SCC 5 at para 65, [2004] 1 SCR 193, that the rule was “designed to provide fairness to witnesses and the parties” [emphasis added]; see also R v Giroux (2006), 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512 at para 42, leave denied [2006] SCCA No 211 (QL) (SCC No 31429). Since Lyttle, other cases have made it clear that the principles involve not only fairness to a witness but to the parties and to the Court. As stated in R v Quansah, 2015 ONCA 237 at para 77, [2015] OJ No 1774 (QL):
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] O.J. No. 5686, 2013 ONCA 744, 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.
Quansah, at paras 78-81, adumbrates at large on negative effects from not complying with Browne v Dunn which considerations figure in exercise of discretion of any trial judge.
[123] This Court in R v Cupid, 2021 ABCA 386 at para 15, [2021] AJ No 1576 (QL), likewise completed the circle of logic by saying:
The rule in Browne v Dunn requires counsel to put a matter to a witness if they intend to present contradictory evidence on that point through a later witness. The genesis of this rule is a concern with trial fairness. There are three components to this principle: (1) fairness to the witness, who should have an opportunity to address the contested point; (2) fairness to opposing counsel, who is entitled to understand what aspects of its witness' evidence are to be contested; and (3) fairness to the trier of fact, who may not otherwise have the necessary information to properly assess the witness' credibility: R v Sawatzky, 2017 ABCA 179 at para 24.[Emphasis added]
[124] In M(RJ) , at paras 25-28, the Court agreed with Cupid on these points of principle which also appear in Soroush and Quansah:
The rule is rooted in concerns about fairness: (1) fairness to the witness who should have an opportunity to address the contested point; (2) fairness to the opposing party, who should have notice of what aspects of its witness's evidence are contested; and (3) fairness to the trier of fact, who may not otherwise have the necessary information to properly assess the witness's credibility (see R v Quansah, 2015 ONCA 237 at para 77).
Any failure to cross-examine must relate to a matter of substance, not an issue of little significance (see Quansah at para 81; Abdulle at para 11; and R v Paris (2000), 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 at para 23 (Ont CA)). If the matter is minor or of insufficient significance, the rule is not engaged and no remedy is necessary (see Abdulle at para 13).
If the Crown considers that the rule has been violated, it has an obligation to make a timely objection (see Quansah at para 124; and Dowd at para 26).
Where a trial judge has concerns about the potential breach of the rule, it is generally required, in the interests of trial fairness, that they raise this with counsel prior to rendering a decision on the matter (see Cupid at para 16). ...
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