Chandroo c. R., 2018 QCCA 1429 - SummaryChandroo c. R., 2018 QCCA 1429 (CanLII)
Justice Patrick Healy pens a succinct decision of the Court of Appeal of Québec to keep in your trial toolbox, exploring in the criminal law context the rules that developed from a fundamental precedent which many lawyers never even learn about: Browne v. Dunn,  6 R. 67 (H.L.), 1893 CanLII 65 (FOREP).
As a matter of fairness, the Browne v. Dunn principle provides that "a party cannot lead testimony in chief from its witness that contradicts or impeaches the evidence of the opponent’s witness in a material particular without having cross-examined that witness on the same matter." [par. 12] Its application requires [par. 13] first to determine whether it comes into play [see the development at par. 14], and then what is to be done as far as remedies go [see the development at par. 15-16]. Both are subject to different standards of review: the first correctness, the second being owed deference [par. 13], the court on appeal essentially having to decide if the discretion was exercised judicially.
Three remedies are open to the trial judge: recalling the witness to allow the correction of the unfairness, admit the evidence but with a balancing warning to the trier of facts, and finally refusing to admit the contradictory evidence [par. 15]. This last option is problematic in a criminal context, where there is a constitutional right to make full answer and defence [par. 16], and its use in this case was ground for reversal of the trial judge verdict [par. 17]. This is so even if the appelant did not argue the prosecution's objection at the time and does not now invoke his lawyer's incompetence, because "[t]here is no indication whether his counsel acted deliberately or by inadvertence" [par. 20]
[*] with the caveat that "[t]he judge has no obligation to suggest [recalling the witness as] remedy, or to recall the witness, although such a suggestion is commonly made." [par. 15]
This decision should not be seen as a license to ignore the Browne v. Dunn principle, and lawyers should strive to fairly put their case to witnesses before leading contradictory evidence. Still, it is a welcome tempering of its sometimes too harsh consequences when for one reason or another there is a breach. Remedial options are to be preferred to a strict bar of the contravening evidence, and the judge's discretionary choice has to be preceded by a process which respects basic procedural fairness.