R v Wapass, 2014 SKCA 76
[21] As the Court explained in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, the rule in Browne v. Dunn “requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach” (para. 64). Giving notice in this context means that if counsel intends to challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, “the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box” (R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 134 C.C.C. (3d) 131 at 141).
[22] The Supreme Court of Canada endorsed the rule in Browne v. Dunn in Lyttle in the criminal context as being “a sound principle of general application” (para. 65). In the circumstances of this case, however, the trial judge erred by applying the rule in Browne v. Dunn to determine the credibility of the accused and the Crown witnesses. The trial judge raised the possibility of the application of the rule after the Crown and defence had closed their cases, and applied it in his assessment of credibility.
[23] The rule in Browne v. Dunn is not absolute in the sense that once breached the accused must be disbelieved. In Lyttle, the Court stated the extent of the application of the rule is within the discretion of the trial judge, after taking into account all the circumstances of the case (see para. 65). The Court in Lyttle made it clear that the rule is designed to provide fairness to witnesses and parties and it is not “fixed” (para. 65).
[24] As the Court in Lyttle demonstrates, “the right of an accused to cross-examine witnesses for the prosecution—without significant and unwarranted constraint—is an essential component of the right to make full answer and defence” (para. 2). The rule in Browne v. Dunn must co-exist with the right to make full answer and defence.
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