R v Sawatzky, 2017 ABCA 179
[21] The “rule in Browne v Dunn” is not absolute. The trial judge is best suited to determine whether a party has failed to comply with the rule and whether the failure to cross-examine a witness on a certain point was unfair to the other side. The trial judge’s decision about whether the rule was violated, and whether any unfairness resulted, is entitled to considerable deference: R v Quansah, 2015 ONCA 237 at para 90, 125 OR (3d) 81. The extent of the rule’s application “is within the discretion of the trial judge after taking into account all the circumstances of the case”: R v Lyttle, 2004 SCC 5 at para 65, [2004] 1 SCR 193. When the rule has been breached, the remedy lies within the discretion of the trial judge: R v Werkman, 2007 ABCA 130 at para 9, 404 AR 378.
[22] Unless admissible pursuant to a hearsay exception, a trial judge may not rely on an out-of-court statement for the truth of its contents. When a witness’s prior out-of-court statement is used to impeach the witness during cross-examination, any portions of the statement put to the witness are not in evidence unless the witness adopts his or her prior statement. It is an error of law, reviewable on a correctness standard, for the trial judge to rely on any facts contained in the out-of-court statement as though they formed part of the witness’s in-court testimony: R v Youvarajah, 2013 SCC 41 at para 26, [2013] 2 SCR 720; R v Kelly, 2011 ONCA 549 at para 41, 88 CR (6th) 371.
Analysis
Failure to Apply the Rule in Browne v Dunn
[23] Where a party intends to impeach a witness who was called by his or her opponent, or present evidence contradicting that witness, the party should direct the witness’s attention to the contradictory evidence. The contradictory evidence should be put to the witness during cross-examination, so that the witness has an opportunity to address or explain the contradictory evidence. If the witness is not cross-examined on any such matters of significance, the trier of fact may consider the failure to cross-examine the witness when assessing the witness’s credibility or the credibility of any contradictory evidence: Lyttle at paras 64-65; R v Paris (2000), 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 (Ont CA) at para 22; Werkman at para 7; Quansah at paras 75-86.
[24] This is the well-known “rule in Browne v Dunn.” The rule is rooted in concerns about fairness – specifically, fairness to the witness (who should have an opportunity to address the contested point), fairness to the opposing party (who should understand what aspects of its witness’s evidence are contested), and fairness to the trier of fact (who otherwise might not have the information necessary to properly assess the witness’s credibility): Quansah at para 77; S.C. Hill, D.M. Tanovich and L.P. Strezos, eds, McWilliams’ Canadian Criminal Evidence, 5th ed (Aurora, ON: Canada Law Book, 2013) (loose-leaf, release 2016-2) at pp 21-107 to 21-108.
[25] The rule is not an “ossified, inflexible rule of universal and unremitting application that condemns a cross-examiner who defaults to an evidentiary abyss”: Quansah at para 90. Any failure to cross-examine a witness must relate to a matter of substance, not an issue of little significance: Paris at para 23; Quansah at para 81; R v Abdulle, 2016 ABCA 5 at para 11, 609 AR 396. Before inviting the trier of fact to make an adverse credibility finding, the trial judge may also consider less drastic remedies, such as granting leave to recall witnesses: Werkman at para 9; Quansah at paras 119-120.
[26] Even if a party has violated the rule, it is up to the trier of fact to determine how much weight, if any, should be placed upon counsel’s failure to cross-examine a witness about a particular matter: R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759 at pp 782-783; R v MacKinnon (1992), 1992 CanLII 488 (BC CA), 72 CCC (3d) 113 (BCCA); Paris at para 27. Failure to cross-examine the witness about an issue does not require the trier of fact to accept the witness’s evidence on that point: R v Scheideman, 2001 ABCA 94 at para 2, 277 AR 331. An adverse inference is not mandatory.
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