Sep 12, 2018

Chandroo c. R., 2018 QCCA 1429 - Summary

Chandroo 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, [1893] 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]

A helpful summary is finally provided, in the form of a guidemap:
"[21] While an appropriate remedy for a breach of the principle in Browne v. Dunn lies within the discretion of the trial judge, the most preferable remedy is one that will cause the least prejudice to the parties. There can be no fixed rule in this respect but some general observations can be made. First, trial judges should raise with the parties any apprehended breach of the principle even if no formal objection is raised by the opposing party. Second, if a breach is found, the trial judge should discuss the issue and possible remedies with the parties[*] and, obviously, in a trial by jury this discussion should take place in the absence of the jury. Third, the most appropriate remedy will be the one that best corrects the effect of the omission by the party in breach. In most instances that remedy will likely be to recall the witness who was not confronted in cross-examination. Otherwise the judge would be prudent to allow the party in breach to proceed but with a strong caution that the trier of fact will be instructed to consider the breach in the assessment of the evidence. Only in exceptional cases should the party in breach be prohibited from the presentation of its case[...]."

[*] 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.