Browne v. Dunn - Impeach the Witness’s Credibility

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-03
CLNP Page ID:	94
Page Categories:	[Legal Principles]
Citation:	Browne v. Dunn - Impeach the Witness’s Credibility, CLNP 94, <https://rvt.link/5r>, retrieved on 2024-05-03
Editor:	MKent
Last Updated:	2024/04/25

Untinen v Dykstra c.o.b., Dykstra Roofing & Renovations, IKO Industries Ltd., 2016 ONSC 4721 (CanLII)

[40] The Appellant claims that the decision of the trial judge to allow the Respondent IKO to present evidence contrary to the evidence of the Appellant’s experts without seeking to cross-examine them was a breach of the rule in Browne v. Dunn.

[41] As set out by the Appellant, the rule in Browne v. Dunn states that there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’s credibility or present contradictory evidence: see R. v. Pasqua, 2009 ABCA 247 (CanLII), 9 Alta. L.R. (5th) 89, at para. 17.

[42] The Appellant claims that the trial judge allowed a breach of the rule in Browne v. Dunn by allowing Mr. Fee to testify as to the difference between fissures and cracks without having cross-examined the Appellant’s expert on this issue. Further, there was no cross-examination on the extent of the damage to the shingles and on the repair cost for hot sealing the roof.

[43] On the difference between fissures and cracks, I find that the Appellant’s experts did not comment on fissures and how these differ from cracks. As such, there was no contradictory evidence. Further, while Mr. Fee commented on what appeared to be fissures in the shingles, he clearly stated in his evidence that he could not be certain without inspecting those shingles. I find that this was not contradictory evidence.

[44] As for the evidence of Mr. Fee relating to the solution of hot sealing the roof and the associated cost, I find that the Appellant’s experts did not deal with this issue in any sufficient detail to require a cross-examination to satisfy the rule in Browne v. Dunn. The Appellant’s expert Mr. Stephenson only briefly referred to applying a sealant and made no comment on the associated cost. As such, the evidence of Mr. Fee on these issues does not offend the rule in Browne v. Dunn.

R. v. Quansah, 2015 ONCA 237 (CanLII)

[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.

(...)

[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.