La logique derrière la règle de l'équité procédurale et les réparation possibles en présence d'un accroc

R. v. McNeill, 2000 CanLII 4897 (ON CA)

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[44] The rule in Browne v. Dunn was succinctly stated by Labrosse J.A. in R. v. Henderson, supra, at p. 636 O.R., p. 141 C.C.C.:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross- examination while he or she is in the witness-box.

[45] In R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 at p. 376 (Ont. C.A.), Finlayson J.A. outlined the purpose and ambit of the rule:

Browne v. Dunn is a rule of fairness that 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. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. For a fuller discussion on this point, see Palmer and Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at pp. 209-10, [1980] 1 S.C.R. 759, 14 C.R. (3d) 22 (S.C.C.).

[46] While these decisions explain the rule and its underlying purpose, they do not address the options available to a party who feels aggrieved by the failure of his or her opponent to adhere to it. To that end, I offer these suggestions.

[47] In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.

[48] The mechanics of when the witness should be recalled and by whom should be left to the discretion of the trial judge.

[49] In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury. If one is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.

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).

Un témoin doit être contre-interrogé sur un élément significatif de la cause; à défaut, il y a un accroc à l'équité

R. v. Paris, 2000 CanLII 17031 (ON CA)

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[22]         Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party.  The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case:  R. v. Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.);  R. v. H. (L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.);  R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.);  R. v. K.(O.G.) (1994), 1994 CanLII 8742 (BC CA), 28 C.R. (4^th) 129 at 131 (B.C. C.A.);  R. v. Letourneau and Tremblay (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 at 522-23 (B.C. C.A.); R. v. McNeill, supra, at 565;  A. Mewett, Witnesses, 2d ed., looseleaf (Toronto:  Carswell, 1999) at 2-32 to 2-34.

[23]         The potential relevance to the credibility of an accused’s testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors.  These include the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence.  In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross-examination.  In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case.  In such situations, the failure to cross-examine will have no significance in the assessment of the accused’s credibility.  In other circumstances, however, where a central feature of the complainant’s evidence is left untouched in cross-examination or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused’s credibility.

Les principes gouvernant la règle d'équité procédurale (Browne v. Dunn)

R. v. Quansah, 2015 ONCA 237

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[75] In Browne v. Dunn, Lord Herschell L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.), at p. 141 C.C.C.; and R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.), at para. 44.

[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.

[77] 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 [page94 ]to be unfounded and thus compromise the accuracy of the verdict.

[78] In addition to considerations of fairness, to afford the witness the opportunity to respond during cross-examination ensures the orderly presentation of evidence, avoids scheduling problems associated with re-attendance and lessens the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted.

[79] Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness' evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it: R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.), at pp. 206-207; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.), at pp. 313-14.

[80] As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris, 2000 CanLII 17031 (ON CA), [2000] O.J. No. 4687, 150 C.C.C. (3d) 162 (C.A.), at paras. 21-22, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 124; R. v. Giroux, 2006 CanLII 10736 (ON CA), [2006] O.J. No. 1375, 207 C.C.C. (3d) 512 (C.A.), at para. 42, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 211.

[81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney, 1993 CanLII 14688 (ON CA), [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.), at pp. 375-76 C.C.C.; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.

[82] In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness' version of events. Where the confrontation is general, known to the witness and the witness' view on the contradictory matter is apparent, there is no need [page95 ]for confrontation and no unfairness to the witness in any failure to do so.

[83] It is worthy of reminder, however, that the requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.

[84] The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness' testimony depends on several factors. The factors include but are not limited to

(i)     the nature of the subjects on which the witness was not cross-examined;

(ii)   the overall tenor of the cross-examination; and

(iii)  the overall conduct of the defence.

See Paris, at para. 23.

[85] Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused's credibility. On the other hand, where a central feature of a witness' testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused's credibility: Paris, at para. 23.

[86] The confrontation principle is not violated where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness' story: Browne v. Dunn, at p. 71. Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule: Verney, at p. 376 C.C.C.

Ce qu'un juge d'instance peut considérer pour déterminer l'ampleur de l'accroc à la règle d'équité procédurale (Browne v. Dunn)

R v. Dexter, 2013 ONCA 744

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[17]         The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness.  The rule was summarized by this court in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

The cross-examiner gives notice by first putting questions to the witness in cross-examination that are sufficient to alert the witness that the cross-examiner intends to impeach his or her evidence, and second, by giving the witness an opportunity to explain why the contradictory evidence, or the inferences to be drawn from it, should not be accepted: see the comments of Lord Herschell in Browne v. Dunn, at pp. 70-71. 

[18]         The application of the rule prevents a witness from being “ambushed”.  However, it does not require the cross-examiner to “slog through a witness’s evidence-in-chief putting him on notice of every detail the defence does not accept”: see R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 67 O.A.C. 279, at para. 28.  Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness.    

[19]         The rule is also a rule of common sense.  By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.

[20]         The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors.  In deciding how to address a breach, a trial judge may consider:

•        The seriousness of the breach;

•        The context in which the breach occurred;

•        The stage in the proceedings when an objection to the breach was raised;

•        The response by counsel, if any, to the objection;

•        Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;

•        The availability of the witness to be recalled; and

•        In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

Thus, the extent of the rule’s application is within the discretion of the trial judge after taking into account the circumstances of the case: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9.

[21]           There are at least two permissive options to rectify the breach.  One is for the trial judge to take into account the failure to cross-examine when assessing a witness’s credibility and deciding the weight to be given to that witness’s evidence: see Werkman, at paras. 9-11; R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287, at para. 22.  Another is to allow counsel to recall the witness whose evidence has been impeached without notice.  As Moldaver J.A. explained in R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at paras. 47-49, where the concern lies in the witness’s inability to present his or her side of the story, if the witness is available and the trial judge is satisfied that recall is appropriate, the trial judge ought to offer the aggrieved party that opportunity.  The mechanics of when and by whom the witness should be recalled should be left to the discretion of the trial judge.  If the aggrieved party who is offered this option declines it, then the trier of fact would simply decide whether to believe all, part or none of the [later] witness’s evidence regardless of whether the evidence was uncontradicted. 

[22]         Deference is owed to a trial judge’s exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom (2002), 2002 CanLII 45026 (ON CA), 61 OR (3d) 51 (C.A.), at para. 20.