May 7, 2021 – The Rule in Browne v. Dunn

“The rule in Browne v. Dunn creates an obligation to give a witness, called by the opposite side, an opportunity to explain evidence which the cross-examiner intends to later use to impeach the testimony or credibility of the witness. This rule was expressly adopted in Canada in Peters v. Perras (1909), 42 S.C.R. 244.

Trial judges do have discretion as to the remedy to be afforded for a breach of the rule in Browne v. Dunn, if a breach has occurred. The effect that a court should give to a breach of the rule depends on a number of factors and the circumstances of the case: R v. Dexter, 2013 ONCA 744, 313 O.A.C. 266, at para. 20; 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. In Dexter, this court delineated two permissive options to rectify a breach of the rule. First, the trial judge can take into account the breach of the rule when assessing a witness’s credibility and deciding the weight to attach to that witness’s evidence: Dexter, at para. 21; Werkman, at para. 9; R v. Paris (2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124. Second, the trial judge can also allow counsel to recall the witness whose evidence was impeached without notice: Dexter, at para. 21; R v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (Ont. C.A.), at paras. 47-49.”

         Curley v. Taafe, 2019 ONCA 368 (CanLII) at 27 & 31