“It was never put to Mr. Haifang Zhang that Ms. Huang told him that: she was afraid of Mr. Liu; was looking for a safe way to let him see CL; that Mr. Liu pushed her and physically assaulted her; and that Mr. Liu threatened her and said he would make a false allegation against her.
Given the gravity of these allegations and the clear contrast between what Mr. Haifang Zhang alleges was said to him and what Ms. Huang now says she told him regarding the assault on the date of separation, it was imperative for counsel to put these allegations to Mr. Haifang Zhang on cross-examination. Counsel failed to do so. Mr. Liu’s counsel objected to admitting Ms. Huang’s evidence on the basis of the no-ambush rule in Browne v Dunn, which requires that if a party intends to impeach a witness called by an opposite party, the party must give the witness an opportunity, while testifying, to provide any explanation the witness may have for the contradictory evidence. I find the failure here breached the rule in Browne v. Dunn. Watt, J.A. held in R. v. Quansah, 2015 ONCA 237 (CanLII) at para. 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’s 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’s story is not accepted…It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness…(internal citations omitted).
The remedy is discretionary. As stated by the Alberta Court of Appeal in R. v. Werkman, 2007 ABCA 130 (CanLII) at para. 11: “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.””