Le défaut de contre-interroger un témoin sur un élément significatif de la cause

R. v. Werkman, 2007 ABCA 130

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[7]               The second and third grounds of appeal relate to the rule in Browne v. Dunn, and can be dealt with together. The rule in Browne v. Dunn requires that counsel put a matter to a witness involving the witness personally if counsel is later going to present contradictory evidence, or is going to impeach the witness’ credibility: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R 193, 316 N.R. 52 (para. 64). Though it is not necessary to cross-examine upon minor details in the evidence, a witness should be provided with an opportunity to give evidence on “matters of substance” that will be contradicted: R. v. Giroux (2006) 2006 CanLII 10736 (ON CA), 210 O.A.C. 50 at para. 46 (C.A.). The purpose of the rule is to ensure that parties and witnesses are treated fairly; it is not a general or absolute rule: Lyttle at para. 65; R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 781, 30 N.R. 181. The rule also has exceptions.

 

[8]               In this case, the trial judge concluded the Crown witnesses were not cross-examined on a number of significant points which formed the entire basis of Werkman’s defence (A.B. F13/45 -F14/2; F30/4-10). Werkman contends that these were just details, but a review of the record belies that characterization. So the trial judge had an appropriate basis on which to apply the rule in Browne v. Dunn.

 

[9]               What effect should a court give to a breach of the rule? It depends on the circumstances of the case and is in the discretion of the trial judge: Lyttle at para. 65; Palmer at 781. A trial judge has a number of remedies available when the rule has been breached. One is taking into account the failure to cross-examine in assessing the witness’ credibility, and another is granting leave to call witnesses in reply: R. v. McNeill (2000) 2000 CanLII 4897 (ON CA), 131 O.A.C. 346, 48 O.R. (3d) 212 (para. 49) (C.A.); R. v. Marshall (2005) 2005 CanLII 30051 (ON CA), 201 O.A.C. 154, 77 O.R. (3d) 81 (paras. 54-55) (C.A.), leave denied, [2006] S.C.C.A. No. 105; R. v. Kwandahor-Mensah, 2006 ABCA 59, 380 A.R. 321 (para. 15).