Court File and Parties

COURT FILE NO.: CR-17-0343-00 DATE: 2018 08 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Jennifer Goulin for the Crown

- and –

CHARLES CROFT Paul Erskine and Melanie LeBlanc for C. Croft

BROWNE AND DUNN RULING

D.E HARRIS J.

1This is a brief ruling to explain an issue that arose in the closing addresses of counsel in this trial. A Browne and Dunn style argument was made to the jury in the Crown’s closing address. I delivered a mild corrective instruction in the jury charge. This ruling explains my reasons for the instruction.

2Charles Croft was tried by judge and jury on a one count indictment charging him with the murder of his brother Wayne Croft. He was convicted of the included offence of manslaughter.

3Only a thumbnail sketch of the evidentiary background is necessary. There was some animosity between the brothers. One night, Charles Croft insulted Wayne as he was walking underneath an apartment balcony. Wayne ignored the insult initially but, about two hours later, came into the apartment looking for Charles, clearly furious with him. Charles was still on the apartment balcony. Wayne rushed out to confront Charles and a fist fight ensued. It was a mismatch with Wayne repeatedly punching Charles in the face. At some point, Charles picked up a steak knife and stabbed Wayne once in the torso. Tragically, Wayne’s heart was nicked by the wound and he died of internal bleeding within minutes. The jury rejected self-defence. In convicting of manslaughter, the jury found that the mental element for murder was lacking.

4The issue at hand involves around the pathology evidence. Dr. Cunningham testified about the knife wound that led to Wayne’s death. He described the depth of the wound, its location and the mechanism of death by internal bleeding. The Crown in examination-in-chief went into considerable detail in differentiating between an incised wound and a wound caused by thrusting or stabbing. An incised wound is made by moving a knife in a sweeping or slashing motion and is generally longer than it is deep. A stabbing wound is made when a knife is thrust toward a victim. This kind of wound can be quite deep and its surface is relatively short.

5The pathologist opined that the wound in this case was caused by a stabbing, thrusting motion. It had none of the characteristics of an incised wound. On the surface of the skin, it was short not long. And it was 4 to 4.5 centimeters deep. The pathologist’s evidence was not seriously challenged by the defence on the distinction between the two kinds of wounds nor on the conclusion that the wound here was a stab wound.

6Mr. Croft testified in his own defence. He did not dispute causing the wound which led to the death of his brother. He claimed it was self-defence and testified that he did not intend to cause death or bodily harm which he knew was likely to cause death.

7Mr. Croft testified that he swung the knife across his body intending to cut his brother on the arm. He qualified this by saying that there was a thrusting motion at the end of his swing which brought his evidence in line with the expert pathology evidence. At the previous trial which ended in a hung jury, Mr. Croft had testified about swinging the knife but it does not appear that he had added the qualification about the thrusting motion at the end.

8The Crown cross-examined him on this discrepancy. She also had Mr. Croft demonstrate in front of the jury what he had done using the officer-in-charge as a stand in for the victim. As an aside, counsel and I agreed that in the future, a demonstration of this nature should be videotaped to preserve it for the record. I should add that as the case law elucidates, in-court demonstrations bring with them a host of dangers and should be approached cautiously.

9The issue to be addressed here arose in this way. In her address to the jury, the Crown, following the defence closing said,

One of the main reasons I'm going to say Mr. Croft had the intent for murder is the evidence of Dr. Cunningham, who told you about Wayne Croft having a penetrating stab wound to the heart and he explained what would cause that would likely be a … thrusting motion with a knife, not a swinging motion or a slashing motion. That would cause incised wounds or wounds that are longer than they are deep, whereas a penetrating wound goes in … and it pierces … to a degree.

Mr. Croft described a swinging motion. It was kept, I submit to you, deliberately vague in his examination in-chief and nobody other than the Crown put to Dr. Cunningham what it was Charles Croft may have done when he swung … the knife at his brother.

Mr. Erskine [defence counsel] said I'm trying to -- that I would spin things for you. I am doing nothing of the sort. There was an attempt to give Dr. Cunningham the scenarios that may have caused this injury so that you could use his evidence as a tool to try to resolve that issue in terms of whether Mr. Croft's version is consistent with the injuries that were sustained by Wayne.

Defence counsel did not put one hypothetical situation to Dr. Cunningham. They don’t have to. I'm not saying that there's a rule that they do, but if you want to get up here and say my client's evidence of what he did that the Crown got him to show, the spin Crown got him to show fits so perfectly with his evidence, that you should consider it corroborative, but there's a problem with that, because if Mr. Erskine wanted to say that, if Mr. Erskine wanted you to believe that there is such a wonderful corroboration of Mr. Croft's version of event and what Dr. Cunningham says happened, he should've put that to Dr. Cunningham so that you could hear the doctor's answer in that regard. Mr. Erskine's not the doctor. You're not the doctor. He is. He's the person who gets to say this is the situation that I would expect happened and you didn’t have that.

I would suggest to you, moreover, that Mr. Croft's demonstration with Officer McKenzie did not show what Mr. Erskine suggested and is inconsistent with a penetrating stab wound.

(Emphasis Added)

10The message communicated to the jury was that the defence had acted unfairly in not putting the swinging or slashing scenario to the pathologist. Continuing in this vein, the Crown said the defence had stayed away from the issue because, so it was implied, the answers would have hurt their position. The Crown concluded that the jury was unfairly deprived of hearing the doctor’s response to the suggestion that a slashing motion caused the wound.

11In substance, this was an argument that the rule in Browne and Dunn had been violated by defence counsel and that it should impact on the jury’s approach to the pathologist’s evidence and the defendant’s evidence with respect to the way in which the knife was wielded and the nature of the wound.

12I raised the issue of this part of the address with Crown and defence counsel, in the absence of the jury. Defence counsel was unperturbed. Nonetheless, in the charge to the jury, as part of the section directing the jury on the mental element for murder, a two-sentence paragraph was included advising them that in my view everything that should have been put to the pathologist had been. His evidence was clear.

BROWNE AND DUNN

13I make two comments with respect to Browne and Dunn (1893), 6 R. 67 (H.L.) arising out of the circumstances of this trial. First, I cannot envision a situation in which counsel is justified in arguing Browne and Dunn in closing argument to a jury without first canvassing it with the trial judge. Indeed, the Court of Appeal has recently held as much.

14Second, in my view, there was no violation of Browne and Dunn in this case. The mini-instruction in the charge to the jury was for the purpose of ensuring that there was no lasting prejudice to the defence arising out of the Crown’s closing address.

1. COUNSEL CANNOT ARGUE BROWNE AND DUNN TO THE JURY WITHOUT IT FIRST BEING RAISED WITH THE TRIAL JUDGE

15The rule in Browne and Dunn is unique in criminal law. It stands as one of the rare exceptions to the general rule that the conduct of counsel is of no evidentiary significance and ought not to be the subject of comment by opposing counsel or the trial judge: R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 paras. 37-39, R. v. Zehr (1980), 54 C.C.C. (2d) 65 (Ont. C.A.) at pp. 68-69, R. v. Koffman (1985), 20 C.C.C. (3d) 232 (Ont. C.A.) at pp. 237-238, R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C. C.A.), at p. 513.

16It is axiomatic that questions asked by counsel are not evidence; it is the answers which are the evidence. But a violation of Browne and Dunn can lead to the finder of fact being directed that the failure to ask questions of a witness may affect the weight of that witness’ evidence, and by extension, the opposing witness’ evidence.

17In short and stating it in the most rudimentary form, the rule requires counsel to put to a witness in cross-examination the essence of contradictory evidence planned to be adduced by counsel later in the trial. The failure to confront the witness creates a potential unfairness to the party who has called the witness, to the witness herself and to the finder of fact: R. v. Quansah, 2015 ONCA 237 at para. 77, R. v. Dexter, 2013 ONCA 744, 2013 CarswellOnt 17418 (Ont. C.A.), R. v. McNeill (2000), 144 C.C.C. (3d) 551 (Ont. C.A.), 48 O.R. (3d) 212, 131 O.A.C. 346, 33 C.R. (5th) 390 (Ont. C.A.), R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.), leave on behalf of Paris refused 154 C.C.C. (3d) iv (note), R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421 (Ont. C.A.) at para. 49, R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.) at p. 376, R. v. Podolski, 2018 BCCA 96 at paras. 145-146, 158-185, R. v. Vorobiov, 2018 ONCA 448 at paras. 42-43.

18The rule is most frequently invoked by the Crown with respect to the failure to put the accused’s evidence to a Crown witness giving opposing or contradictory evidence. If there is a violation of the rule, the trial judge must consider a remedy. As the authorities above discuss, the two remedies generally applied are allowing the witness to be recalled or providing the jury an instruction commenting on the failure to put the contradictory evidence to the witness.

19Crown counsel cannot argue Browne and Dunn before the jury without airing it first with the trial judge. Justice Watt’s judgment in Quansah precludes it. In that case, the Crown raised their objection not after the conclusion of the defendant’s testimony when the Browne and Dunn violation had crystalized but only later, after more defence evidence was called, at the pre-charge conference. Justice Watt held that a Browne and Dunn violation should be the subject of timely objection:

124 Timely objection is consistent with the duty of Crown counsel under R. v. Boucher (1954), [1955] S.C.R. 16 (S.C.C.), at pp. 23-24; Dexter, at para. 37. Lying in the weeds to seize upon the failure to cross-examine as a basis for instruction that counsel’s default tells against the credibility of an accused is inimical to the Crown’s duty of fairness. At the very least, Crown counsel should provide some explanation for the lack of timely objection: Giroux, at para. 49; Dexter, at para. 37.

20In this Croft trial, the Crown failed to object at any point but instead used the alleged violation of Browne and Dunn to go directly to the jury in her closing address. As in Quansah, the objection should have been raised immediately upon the conclusion of the defendant’s evidence. If the objection had been found to be valid, this would have allowed an opportunity for the pathologist to be recalled in order to remedy the unfairness. If it was not found to be valid, that would have been an end of the matter and the jury would never have heard about it.

21Even apart from the direction from Quansah, on basic principle, the trial judge must be involved in any allegation of a Browne and Dunn violation. The rule has always been understood as being rooted in trial fairness. The judge is the arbiter of trial fairness, not the jury. When the Crown argues that a prosecution witness was not treated fairly by the defence and this should impact on their scrutiny not only of his evidence but implicitly, the defendant’s evidence as well, this ventures beyond the usual bounds of a closing address. It crosses over the line into the conduct of counsel and procedural fairness. This is a matter which the trial judge must assess before the Crown goes to the jury with it.

22In virtually all of the Browne and Dunn cases over the last few decades, it has been stressed that not every miniscule contrary detail needs to be put to an opposing witness: e.g. Quansah at para. 81, Vorobiov at para. 43, Podolski at para. 145. This is a function of the purpose of Browne and Dunn to remedy a true adversarial ambush and correct the ensuing unfairness. It is only matters of substance that can lead to unfairness. Furthermore, The remedy of potentially increasing the weight of the opposing witness’ evidence vis a vis the defendant or another defence witness can have significant implications at trial. At least in some circumstances, the potential exists that a jury could substantially downgrade the defendant’s evidence as a result. In light of the solicitude and sensitivity of a defendant’s evidence, a good deal of care is necessary: Regina v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), [1974] O.J. No. 2146, 6 O.R. (2d) 103, leave refused December 2, 1974.

23Notwithstanding the dangers inherent in Browne and Dunn instructions, the temptation for the Crown to reach for a Browne and Dunn instruction is powerful. In the heat of adversarial battle, firing a volley at the defence claiming procedural unfairness and an unscrupulous ambush has its attractions. My experience in this jurisdiction, limited as it may be, is that the Crown too often plays the Browne and Dunn card.

24The Crown in this trial, when Browne and Dunn was broached after her address, referred to an impropriety in the defence address. Defence counsel had stated to the jury that the Crown was the only person in the courtroom who did not believe that the defendant acted in self-defence. And, he argued, she was not there that night.

25Of course, the Crown was correct that this was improper for several reasons, the main one being that the Crown does not act as counsel in her personal capacity. Furthermore, a criminal trial is a public matter not a private one. Counsel’s personal views, aside from being unknowable, are quite irrelevant. The argument by the defence was rhetoric and impermissible rhetoric. Despite the impropriety, the Crown did not seem to disagree that it was exceedingly unlikely that the jury would pay any attention to this remark.

26In any case, I fail to see the connection between this remark and the Browne and Dunn argument put to the jury by the Crown. One unfairness had nothing to do with the other unfairness. I should add that I do not believe Crown counsel was acting in a deliberately unfair manner when she made the Browne and Dunn comments in her closing. It was a misstep. She displayed impressive fairness throughout this trial. The best example is when she elicited from the pathologist in re-examination that before he went to medical school, he was unaware of the area of the heart unprotected by the rib cage. It was in this unprotected area that the fatal wound was inflicted. This was evidence which could only benefit the defence on the self-defence issue and was also of substantial weight in contradicting the mental element for murder. The Crown had no obligation, ethical or otherwise, to elicit this. It was against her interest. She did so solely out of fairness to the accused.

2. THERE WAS NO BROWNE AND DUNN VIOLATION IN THIS TRIAL

27A quick litmus test for a Browne and Dunn violation requires two complimentary questions to be asked, one general and one more specific: 1. Is it correct to characterize the net effect of the alleged violation as a true “ambush” and a surprise attack?; and 2. If the questions at issue had been put to the witness, is there any real uncertainty what the answers would have been?

28In this case, the Crown had elicited the full evidentiary foundation from the pathologist. The major difference between the two types of wounds was crystal clear. The wound that killed Wayne Croft was produced by a stabbing, thrusting motion not by a slashing or swinging motion.

29If the pathologist had been asked hypotheticals based on the defendant’s version of events there was no uncertainty about what he would have said. If the defendant said that at the time the knife contacted the body of the deceased, it was moving in a slashing or swinging motion, this was inconsistent with the nature of the fatal wound. The pathologist would have said so and, in essence, had already done so. If it was being used in a thrusting manner, on the other hand, it would have been consistent with the wound described by the pathologist.

30The answers to the litmus test questions were easy: 1. There was no ambush and no surprise in the defendant’s evidence. It is of some importance that this was a retrial and the defendant testified on the first trial as well. The Crown was well-aware of the general nature of his evidence; and 2. There was no doubt what the pathologist’s evidence would have been if confronted with the defendant’s evidence. When the knife entered the body it was being used in a stabbing motion, not a swinging motion which would have produced an incised wound. Anything testified to by the accused inconsistent with this would have been disavowed by the pathologist if he had been confronted with it.

31There was much for the Crown to make of the defendant’s evidence with respect to how he used the knife (and she did), including his inconsistent evidence from the first trial, but she could not make legitimate use of Browne and Dunn to further her argument.

CONCLUSION

32Several factors suggested that only a brief comment should be given to the jury directing that everything had been put to the pathologist which ought to have been. The pathologist’s evidence concerning incised and stab wounds was thoroughly reviewed in the jury charge. The defendant’s evidence on this subject was also fully reviewed as well. There were no evidentiary “unknowns” despite the Crown’s Browne and Dunn argument to the contrary.

33In addition, the Browne and Dunn argument made by the Crown was somewhat convoluted and, unlike other portions of her closing, lacked poignancy. Intuitively, if they stopped to think about it, the jury were likely to conclude on their own that there was no ambush and no unfairness.

34Lastly, it is important that counsel for the defence did not ask for a remedial instruction. Taking all of this into account, a brief instruction best fit the purpose. A more involved instruction would do more harm than good as it would tend to highlight the issue and bring it to the fore. Left as a quick aside, the instruction would encourage the jury to ignore the issue, as they would have been predisposed to do in any case.

35As the jury convicted of the included offence of manslaughter and not of murder, it is evident that the Crown’s incursion into the realm of Browne and Dunn caused no lasting harm.