Confrontation Rule

From Criminal Law Notebook

General Principles

See also: Cross-Examinations

The confrontation rule, also known as the rule in Brown v Dunn, states that where a party is advancing a theory that contradicts the testimony of a particular witness being questioned, the counter-version must be put to the witness.[1] More specifically, the witness should have "an opportunity to address or explain the point upon which credibility is attacked." [2] The rule prevents a witness from being "ambushed."[3]

Flexible Application

Courts have not stuck strictly to the requirement of presenting the counter version in each and every case involving credibility, stating that it is not a hard and fast or "fixed" rule.[4] The examiner does not need to "slog through a witness's evidence-in-chief putting him on notice of every detail the defence does not accept."[5]

A more flexible approach has been to focus on whether the failure created an unfairness. [6]

Purpose

The rule intends to create fairness for witness who is being impeached, the counsel who called the witness being impeached, and the trier of fact. [7]

When Applied

It has been suggested that the rule should only apply to "matters of substance" and not "minor details."[8]

It is only the "nature of the proposed contradictory evidence and its significant aspects" that should be put to the witness.[9]

Nature of Confrontation

It is not necessary to confront witnesses with matters beyond their observations or knowledge for which they cannot testify to.[10]

Failure to Confront

Some courts have simply put the failure to confront the witness as a matter of weight given to the evidence.[11]

Nevertheless, failure to put the counter story to a particular witness can result in an adverse finding on the counter-story.[12]

Where the accused has not confronted the relevant Crown witnesses with the counter theory of events, the Crown will generally be given the option of recalling their witnesses to address the counter-story.[13]

Not Applicable to Accused Testimony

Where the accused testifies and refutes the Crown's evidence, the rule may not apply such that the Crown need not confront the accused's accused version of events. The accused would have been aware of the Crown evidence that came out in trial and would have been able to address it in their testimony.[14] However, this tactical choice not to confront will prohibit the Crown from making a full comparison between the witnesses versions and in a jury trial would generally require limiting instructions notifying the jury that the accused did not have "potential benefit" his credibility being tested.[15] Such instructions on a failure to confront the witness are not mandatory and will depend on the case.[16]


There is no obligation under the confrontation rule to require the Crown to cross-examine an accused on a bare denial of the allegations.[17]

Breach of Duty

The decision whether a breach is found is at "the discretion of the trial judge after taking into account the circumstances of the case."[18]

Factors

To determine a breach of the Brown v Dunn rule, a number of factors can be considered:[19]

  • The seriousness of the breach;
  • The context in which the breach occurred;
  • The stage in the proceedings when an objection to the breach was raised;
  • The response by counsel, if any, to the objection;
  • Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
  • The availability of the witness to be recalled; and
  • In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.
Jury Trials

The Crown must be cautious in arguing a breach of the Browne and Dunn rule to a jury in closing as it risk creating the false impression of a reversed burden of proof.[20]

Appellate Review

The question of whether the rule in Browne and Dunn applies is reviewed on a standard of correctness.[21] There is however deference to the “factual findings underpinning the trial judge’s conclusion”. [22]

  1. ↑ R v Sawatzky, 2017 ABCA 179 (CanLII), per curiam, at paras 23 to 26
    R v Dyck, 1969 CanLII 988 (BC CA), [1970] 2 CCC 283 (BCCA), per Robertson JA
    R v Henderson, 1999 CanLII 2358 (ON CA), OR (3d) 628, 134 CCC (3d) 131, per Labrosse JA, at p. 636 (OR)/141(CCC) "the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box")
    R v Wapass, 2014 SKCA 76 (CanLII), per Jackson JA, at para 21
    R v Dexter, 2013 ONCA 744 (CanLII), per Weiler JA, at para 17
    Brown v Dunn (1893), 6 R. 67 (H.L.) (UK) 1893 CanLII 65 (FOREP)
  2. ↑ R v II, 2013 ABCA 2 (CanLII), 542 AR 52, per Berger J, at para 8citing McWilliams, Canadian Criminal Evidence, 4th ed. (Aurora: Canada Law Book, 2003), at p. 18-104
  3. ↑ R v Dexter, 2013 ONCA 744 (CanLII), 313 OAC 226, per Weiler JA, at para 18
  4. ↑ R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J at 781
    Lyttle at para 65
    Wapass, supra, at para 23
  5. ↑ Dexter, supra, at para 18
  6. ↑ R v Johnson, 2010 ONCA 646 (CanLII), [2010] OJ No 4153, per Rouleau JA, at para 79: ("The rule is one of fairness, and is not absolute. ... Counsel should not necessarily be obliged to plod through a witness' evidence in-chief, putting him or her on notice of every detail that they do not accept. ... A pragmatic approach to the rule is most appropriate.")
    see also R v Henderson, 1999 CanLII 2358 (ON CA), OR (3d) 628, per Labrosse JA, at pp. 636-37
    R v Giroux, 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512, per Blair JA, at para 42
    R v Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193, per Major and Fish JJA, at para 65
    Palmer, supra, at p. 781 [SCR]
  7. ↑ R v Quansah, 2015 ONCA 237 (CanLII), 323 CCC (3d) 191, per Watt JA, at para 77
  8. ↑ Giroux, supra, at para 46 R v Werkman, 2007 ABCA 130 (CanLII), 219 CCC (3d) 406, per curiam, at para 7
    R v McNeill, 2000 CanLII 4897 (ON CA), 144 CCC (3d) 551, per Moldaver JA, at para 45
  9. ↑ Quansah, supra, at para 81
    Dexter, supra, at para 18
    R v Paris, 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162, per Doherty JA, leave to appeal refused, at para 22
  10. ↑ Quansah, supra, at para 83
  11. ↑ R v MacKinnon, 1992 CanLII 488 (BC CA), 72 CCC (3d) 113, per Hollinrake JA
    R v OGK, 1994 CanLII 8742 (BC CA), 28 CR (4th) 129, per Taylor JA
  12. ↑ R v Mete, (1973), 3 WWR 709 (BCCA)(*no CanLII links)
    R v Khuc, 2000 BCCA 20 (CanLII), 142 CCC (3d) 276, per McEachern JA
    R v McNeill, 2000 CanLII 4897 , per Moldaver JA
    R v Carter, 2005 BCCA 381 (CanLII), 199 CCC (3d) 74, per Thackray JA, at paras 54 to 60
    R v Ali, 2009 BCCA 464 (CanLII), 277 BCAC 154, per Kirkpatrick JA
  13. ↑ e.g. see comments in R v Sparvier, 2012 SKPC 67 (CanLII), 396 Sask R 15, per Hinds J, at para 31
  14. ↑ R v II, 2013 ABCA 2 (CanLII), 542 AR 52, per Berger JA - Crown only cross-examined on collateral matters and not the substance of the incident
  15. ↑ II, ibid., at paras 20, 23
  16. ↑ R v Pincemin, 2005 SKCA 40 (CanLII), per Lane J, at para 9
  17. ↑ R v Sylvain, 2014 ABCA 153 (CanLII), 310 CCC (3d) 1, per curiam(2:1), at para 96
    R v II, 2013 ABCA 2 (CanLII), 542 AR 52, per Berger J, at para 10
  18. ↑ Dexter, supra, at para 20
    Paris, supra, at paras 21 to 22
    R v Giroux, 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512, per Blair JA, leave to appeal refused, at para 42
    Quansah, supra, at para 80
  19. ↑ Dexter, supra, at para 20
    Quansah, supra, at paras 84, , at paras 117: - considers (1) nature of the subject, (2) overall tenor of the cross-examination, (3) overall conduct of the defence
    Paris, supra, at paras 23{{{3}}}
  20. ↑ R v Brown, 2018 ONCA 1064 (CanLII), 361 CCC (3d) 510, per Epstein JA, at paras 15 to 18
  21. ↑ Nagy v BCAA Insurance Corporation, 2020 BCCA 270 (CanLII), per Grauer JA, at para 23
    R v Drydgen, 2013 BCCA 253 (CanLII), 338 BCAC 299, per Donald JA, at para 22
  22. ↑ Hamman v Insurance Corporation of British Columbia, 2020 BCCA 170 (CanLII), per Fitch J, at para 77 (“...deference is owed to the factual findings underpinning the trial judge’s conclusion on whether or not the rule is engaged”)
    R v Lyttle, 2004 SCC 5 (CanLII), [2004] 1 SCR 193, per Major and Fish JJA, at para 65

Remedy

The available remedy is at the discretion of the court and will depend on the circumstances of the case.[1]

The timeliness of the objection is a factor to be considered to determine a proper remedy.[2]

A reviewing court must accord "substantial deference" to the trial judge on their use of discretion in deciding on a remedy.[3]

Recalling the Witness

The first remedy to be considered is the possibility of recalling the witness.[4]

If the option to recall a witness is determined to be inappropriate or "highly impracticable," it should be left to the trial judge to determine whether the jury needs special instructions.[5] An instruction should involve warning them that the weight given to uncontradicted evidence should take into account the opposing witness was never questioned.[6]

The logistics of recalling a witness should be left to the discretion of the trial judge.[7]

If the Crown declines an offer by the court to recall a witness, there is no obligation upon the judge to provide special instructions to the jury on considering the evidence.[8]

A significant gap between the initial testimony and the recall period can be of concern for fairness.[9]

  1. ↑ R v Werkman, 2007 ABCA 130 (CanLII), per J, at para 9
    Lyttle at para 65
    R v Palmer, 1979 CanLII 8 (SCC), [9180] 1 SCR 759 at 781
  2. ↑ R v Quansah, 2015 ONCA 237 (CanLII), 323 CCC (3d) 191, per Watt JA, at paras 123 to 124
  3. ↑ Quansah, ibid., at para 118
  4. ↑ Quansah, ibid., at para 120
    R v McNeill, 2000 CanLII 4897 (ON CA)
  5. ↑ McNeill, ibid., at para 49
  6. ↑ McNeill, ibid., at para 49
  7. ↑ McNeill, ibid., at para 48
  8. ↑ McNeill, ibid. at para 47 ("If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.")
  9. ↑ e.g. see R v Werkman, 2007 ABCA 130 (CanLII)
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