What is the rule in Browne v Dunn?

Browne v Dunn is a case from 1893 that has stood the test of time and continues to have application court matters today.

In Browne v Dunn, Lord Chancellor Herschel opined that a party that is looking to impeach the credibility of a witness has the obligation to put the contradictory evidence to the witness so that the witness has an opportunity to respond and explain the contradictory evidence.

The foundation of the Rule is to prevent surprise and unfairness at trial.

Most often the Rule comes up in criminal matters, it does rear its head in civil and family matters from time to time. The developed case law in Canada has provided significant guidance regarding the Rule. The Rule itself is designed to create a fair and equitable process to all parties.

Why the Rule in Browne v Dunn is fair and equitable to all parties?

• First and foremost, adoption of the Rule creates fairness for the party whose credibility is being impugned.
• It provides them an opportunity to provide full answer to the alleged credibility gap. It also provides fairness to counsel for the party whose evidence is being questioned.
• Counsel now has an opportunity to address the issue and provide the client with a candid risk assessment as to the exposure created by the potential prior inconsistent statement.
• Lastly, the adoption of the Rule provides fairness to the trial judge or arbitrator who is adjudicating the proceedings.

What is notable is that the Rule does not require counsel to go over every piece of contradictory evidence to give the witness a chance to respond. In R v. Lyttle, the Supreme Court of Canada held that the Rule requires counsel put a matter to a witness involving the witness personally if counsel is later going to present contradictory evidence or is going to impeach the witness’ credibility.

In 2006, the Ontario Court of Appeal clarified this further in R v Giroux, where it was held that it was not necessary to cross-examine on minor details in the evidence, but rather, a witness be provided with an opportunity to give evidence on “matters of substance” that will be contradicted.

What happens if the Rule is breached?

If it is determined that the Rule has been breached, the trier of fact has wide discretion in determining an appropriate remedy. The Ontario Court of Appeal decision of R v Quansah provides some helpful guidance as to the factors to be taken into when determining a remedy.

The factors determining if the Rule is breached include:

• The seriousness of the breach;
• The context of the breach;
• The timing of the objection by opposing counsel;
• The position/submissions of the opposing party as they relate to the alleged breach;
• Has there been a request to recall a witness; and
• Is the witness that is being requested to be recalled available.
• The determination of the appropriate remedy, given these factors, will be fact specific and is going to be afforded considerable deference if challenged on appeal.

Despite being a relic, the Rule in Browne v Dunn is as applicable today as it was over 100 years ago. Rooted in fairness, it is an important Rule for litigation counsel in all practice areas to be familiar with.