COURT OF APPEAL FOR ONTARIO

CITATION: R v. Dexter, 2013 ONCA 744

DATE: 20131211

DOCKET: C55611

Weiler, MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Dexter

Appellant

Mark Halfyard, for the appellant

David Lepofsky, for the respondent

Heard: November 7, 2013

On appeal from the judgment of Justice Robert W. Beninger of the Ontario Court of Justice, dated February 9, 2012.

Weiler J.A.:

A. overview

[1] In the early morning hours of June 25, 2009, after a night of drinking, the appellant and three of his friends were driving home from their outdoor gathering place in his car, a sporty 1989 Pontiac Firebird Formula. The erratic manner in which the car was being driven attracted the attention of the police and the driver sped up to avoid pursuit. The driver crashed the car into a wooded area where it landed on its roof.

[2] The appellant was convicted by the trial judge of the following offences under the Criminal Code: two counts of impaired driving causing bodily harm (s. 255(2)), two counts of flight from police causing bodily harm (s. 249.1(3)), and two counts of dangerous driving causing bodily harm (s. 249(3)). Other related charges were conditionally stayed pursuant to the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[3] The sole issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant was driving the car at the material time. Each of the other three occupants of the car testified for the Crown that the appellant was the driver. The appellant asserted that he was not.

[4] In closing submissions, the Crown contended that the appellant’s counsel had breached the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) when cross-examining the other occupants of the car. The rule requires a cross-examiner to give notice to a witness whose credibility the cross-examiner intends to impeach later. The trial judge agreed that the rule had been breached and took that into account in rejecting the appellant’s evidence. The appellant asserts that the trial judge erred in doing so.

[5] Defence counsel also sought to challenge the evidence of the Crown’s witnesses as being unreliable due to their consumption of alcohol. In assessing the reliability and credibility of these witnesses, the trial judge considered the fact that their description of the appellant’s driving just before the accident was consistent with the account of Police Constable Stephen Bates, the police officer who observed the car being driven erratically and pursued it briefly. The appellant asserts that the trial judge erred in using the evidence of Officer Bates to confirm the testimony of the other three witnesses.

[6] Based on these alleged errors, the appellant asks that his conviction be quashed and a new trial, before a court composed of a judge and jury, be ordered.

[7] For the reasons that follow I am of the opinion that the trial judge did not err in his treatment of the evidence and I would dismiss the appeal.

B. FACTS

[8] The sequence of events leading up to the crash is as follows. At the beginning of the evening, the appellant was drinking with the three complainants, Billingsley, Rainford and Munro, at an apartment in which two of them lived. At some point, the four set out to replenish their beer supply. The appellant was driving. The other three men were passengers. After buying more beer, the appellant drove the men to the Burnt River dam. He admits to drinking while driving to the dam.

[9] At the dam, the appellant, Billingsley and Munro got out of the car to drink by the rapids. Rainford stayed in the car because the bugs were bad. After about fifteen minutes, Rainford got out of the car and told the others it was time to go. Five minutes later they got back in the car and continued driving.

[10] At around 1:00 a.m., Officer Bates noticed the car driving erratically. He pursued it with emergency lights and a siren. However, the car fled at such a high speed that Officer Bates aborted pursuit because it put his safety and that of the public at risk. He did not observe who was driving.

[11] Officer Bates received an accident call approximately 20 minutes later. The appellant’s car had crashed three kilometres away from where the officer had observed it earlier. The appellant and the other three occupants of the car were injured. At the time of trial, these three were jointly involved in a civil suit against the appellant over their injuries from the car crash.

[12] The crucial issue at trial was the identity of the driver when the men left the Burnt River dam. Billingsley, Rainford and Munro testified that the appellant was the only person to drive the car that night. The appellant testified that by the time they were ready to get back in the car to leave the dam, he felt ill and was too drunk to drive. He said he moved the front driver’s seat forward and passed out in the rear seat behind the driver. Munro sat in the back beside him. Otherwise he did not know where the others sat.

C. TRIAL DECISION

[13] The trial judge gave three reasons for rejecting the defence position that the appellant was not driving. The first reason, which is not the subject of appeal, was based on inconsistencies in the appellant’s evidence. The appellant gave contradictory evidence on whether he felt impaired when they left the Burnt River dam. He also gave contradictory evidence on what he did or did not remember at the critical time before the crash. In contrast, the testimony of the other occupants of the car, Billingsley, Rainford and Munro, was consistent on the essential point at issue; each testified that the appellant was the only person to drive his car that night.

[14] The second reason the trial judge gave for rejecting the appellant’s evidence forms the first ground of appeal. He determined that the defence had failed to adhere to the rule in Browne v. Dunnwhen cross-examining Billingsley, Rainford and Munro about who was driving when the men left the Burnt River dam. In his reasons for judgment, the trial judge states:

There were three other men in the car, all of whom testified, and the defendant’s evidence of what happened when he got back into the car at Burnt River was not specifically put to those witnesses. All three witnesses were asked if the defendant had expressed an unwillingness to continue driving. It was suggested to Mr. Rainford that somebody else drove the car after Burnt dam. None of the three witnesses were asked to respond to the defendant’s account of having gotten into the backseat of the car behind the driver and either fallen asleep or passed out. In assessing the defendant’s credibility, I am taking into account that central aspects of his testimony were not put to the other three occupants of the car. On that point, I note R. v. Marshall, (2005), 200 C.C.C. (3d) series, page 179, Ontario Court of Appeal. [Emphasis added.]

The appellant submits that the rule in Browne v. Dunn was not breached, and even if it was, the trial judge erred in addressing the breach by failing to allow the witnesses to be recalled and in overemphasizing the breach when assessing the appellant’s credibility.

[15] The third reason the trial judge gave, which forms the second ground of appeal, is that the accounts given by Billingsley, Rainford and Munro as to the sequence of events just before the car crash were confirmed by Officer Bates’s testimony. This was one of the reasons he gave for concluding that, despite their state of intoxication, the three men were reliable and credible witnesses.

[16] Based on these three reasons, the trial judge rejected the appellant’s evidence and concluded that he was, beyond a reasonable doubt, the only person to drive his car that night.

D. DISCUSSION

(1) Did the trial judge err in his application of the rule in Browne v. Dunn?

(a) General Principles

[17] The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

The cross-examiner gives notice by first putting questions to the witness in cross-examination that are sufficient to alert the witness that the cross-examiner intends to impeach his or her evidence, and second, by giving the witness an opportunity to explain why the contradictory evidence, or the inferences to be drawn from it, should not be accepted: see the comments of Lord Herschell in Browne v. Dunn, at pp. 70-71.

[18] The application of the rule prevents a witness from being “ambushed”. However, it does not require the cross-examiner to “slog through a witness’s evidence-in-chief putting him on notice of every detail the defence does not accept”: see R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 67 O.A.C. 279, at para. 28. Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness.

[19] The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.

[20] The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors. In deciding how to address a breach, a trial judge may consider:

• 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.

Thus, the extent of the rule’s application is within the discretion of the trial judge after taking into account the circumstances of the case: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9.

[21] There are at least two permissive options to rectify the breach. One is for the trial judge to take into account the failure to cross-examine when assessing a witness’s credibility and deciding the weight to be given to that witness’s evidence: see Werkman, at paras. 9-11; R. v. Paris(2000), 2000 CanLII 17031 (ON CA), 138 O.A.C. 287, at para. 22. Another is to allow counsel to recall the witness whose evidence has been impeached without notice. As Moldaver J.A. explained in R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at paras. 47-49, where the concern lies in the witness’s inability to present his or her side of the story, if the witness is available and the trial judge is satisfied that recall is appropriate, the trial judge ought to offer the aggrieved party that opportunity. The mechanics of when and by whom the witness should be recalled should be left to the discretion of the trial judge. If the aggrieved party who is offered this option declines it, then the trier of fact would simply decide whether to believe all, part or none of the [later] witness’s evidence regardless of whether the evidence was uncontradicted.

[22] Deference is owed to a trial judge’s exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom(2002), 2002 CanLII 45026 (ON CA), 61 OR (3d) 51 (C.A.), at para. 20.

[23] I now turn to the application of these principles. In this case the appellant submits that (1) he did not breach the rule; (2) if the rule was breached, the trial judge failed to adequately address the breach; and (3) the trial judge erred in placing too much emphasis on the breach.

(b) Was the rule in Browne v. Dunn breached?

[24] The appellant submits that in the circumstances, the rule was not breached because counsel for the defence suggested to all three complainants on cross-examination that the appellant expressed an unwillingness to drive at the dam. He argues that while his version of events that he fell asleep in the backseat was not specifically put to them, it is clear from the witnesses’ evidence-in-chief that they would have denied the suggestion because they had testified that the appellant was the driver for the whole evening.

[25] In my opinion, the rule was breached. The suggestion that the appellant was “unwilling to drive” after the men had been at the dam was not sufficient to put the three witnesses on notice that the appellant would seek to impeach their evidence by testifying that he did not drive. Although the appellant submits that it was clear from their evidence-in-chief that the witnesses would have denied the suggestion, not putting the question to Billingsley and Munro denied them the opportunity to explain how they knew that it was the appellant who was driving.

[26] Rainford was the only witness that counsel for the defence did confront with the suggestion that someone else could have been driving. He provided the explanation that the appellant continued to drive because the car was “his baby” and he would not have allowed someone else to drive it.

[27] Earlier, Rainford testified in his examination-in-chief that after leaving the Burnt River dam, he passed out but awoke to hear the appellant screaming “cops” and then “[f]uck that. They’re not catching me.” During cross-examination, Rainford confirmed that the appellant yelled when he noticed the police cruiser pursuing his vehicle. Rainford was not directly challenged on that aspect of his evidence, but his overall reliability and ability to recall what happened was, given the amount of alcohol he had consumed that night.

[28] When the appellant testified, his counsel asked him about his reaction to the flashing police lights and screaming during re-examination. Defence counsel said, “I don’t want to put words in your mouth but, I’m not leading you, but as you were asleep your evidence would be that you weren’t woken up by any of these flashing lights or screaming[?]” The appellant answered, “That’s correct.” Had Rainford been confronted with the suggestion that the appellant was asleep so he could not have spoken the words Rainford attributed to him, Rainford might have explained that he recognized the appellant’s voice or offered some other explanation.

[29] Because defence counsel failed to properly confront the three Crown witnesses with the appellant’s claim to be asleep in the back seat, they did not have the opportunity to explain fully why they knew he was driving.

(c) Did the trial judge adequately address the breach?

[30] The Crown did not object to the breach of the rule until closing submissions. By the time the issue was raised, the defence had closed its case. The trial judge did not give counsel an opportunity to recall the witnesses. The appellant submits that, in failing to raise the issue earlier, the Crown acted unfairly.

[31] Courts are reluctant to interfere with the exercise of prosecutorial discretion in the conduct of a trial, particularly where, as here, the defence has caused the problem by breaching a rule of fairness. This does not mean that the court is not concerned when the Crown waits until closing submissions to make the argument that the rule has been breached. In R. v. M. B., 2009 ONCA 524, 251 O.A.C. 81, the court commented at para. 72 that it was significant that the Crown had waited until final argument to make its Browne v. Dunn argument and rejected the submission that the rule had been breached. In R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 210 O.A.C. 50, the court suggested at para. 49 that “it might have been preferable if the Crown had made a Browne v. Dunn objection to the accused’s evidence at the time it was tendered.” I endorse these comments.

[32] The Crown is not an ordinary litigant. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. stated at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]

[33] The Crown exercises a public function involving much discretion and power. It must be allowed to perform the advocacy and truth-seeking function with which it has been entrusted: see R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 19-21; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 18. In Jolivet, Binnie J. stated at para. 21:

Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. In exercising its discretion the Crown must act fairly and dispassionately. [Emphasis in original.]

[34] Timely objection by the Crown is important because the accused should not be held responsible for defence counsel’s inadvertent or even deliberate failure to observe the rule: see McNeill, at para. 53.

[35] The possible impact of a late objection is perhaps most obvious in cases involving a jury. When the defence has called evidence in a jury trial, counsel for the prosecution is entitled to address the jury last: see s. 651(3) of the Criminal Code. Thus, counsel for the defence generally has no opportunity to respond to the Crown’s submissions. In addition, a valid but late objection by the Crown adds a complicating factor to the jury’s task and places an additional burden on the due administration of justice. The members of the jury, as triers of fact, must be instructed on how to weigh the evidence in light of the rule’s non-observance. If those instructions are faulty and the accused is convicted, additional uncertainty, expense and delay resulting from an appeal and the ordering of a new trial may be the result.

[36] If timely objection is made by the Crown, and the objection is upheld, the impact of defence counsel’s breach of the rule on the accuracy of the fact finding process and due administration of justice can be minimized. It is more likely that the court will give greater consideration to a request by counsel to recall the witness whose evidence defence counsel is attempting to impeach.

[37] Raising a timely objection is consistent with the Crown’s duty arising from Boucher to “see that all available legal proof of the facts is presented” as well as its truth-seeking function. If the Crown wishes to wait until closing submissions to object to a breach of the rule, it would be wise to provide a reason for doing so. The exercise of the Crown’s discretion must be rational, consistent with the Crown’s role and with due regard for the administration of justice.

[38] Although I have expressed my concern respecting the Crown’s exercise of discretion not to raise its objection until closing submissions, in the circumstances of this case, I cannot accept the appellant’s argument that the trial judge was obliged to give the defence an opportunity to re-open its case for three reasons.

[39] First, when defence counsel heard the Crown’s submissions that the rule had been breached, he did not suggest to the trial judge that the witnesses be recalled and given an opportunity to explain. The appellant has not alleged that his trial counsel was incompetent. In the absence of such a request, the trial judge was not obliged to recall the witnesses on his own initiative: see Paris, at para. 18; Giroux, at para. 48.

[40] Second, as indicated, how a trial judge deals with a breach is dependent upon the circumstances of the case. Unlike McNeill, this was not a jury trial where an instruction was needed to overcome any prejudice to the appellant resulting from counsel’s breach. A trial judge is presumed to know the law: see R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at pp. 664-65. In addition, the trial judge heard the explanation of Rainford when confronted with the suggestion that someone other than the appellant was driving.

[41] Third, the manner in which a trial judge chooses to deal with a breach of the rule involves an exercise of discretion that is entitled to considerable deference. The trial judge chose a permissible option open to him. The appellant has not shown any error in principle in his decision to do so.

(d) Did the trial judge err in placing too much emphasis on the breach?

[42] The appellant submits that the trial judge erred in relying too heavily on the breach of the rule in Browne v. Dunn when considering the material issue of the appellant’s credibility.

[43] The trial judge stated in assessing the appellant’s credibility, “I am taking into account that central aspects of his testimony were not put to the other three occupants of the car.” The phrase “take into account” is precisely the language that Moldaver J.A. suggested be used to instruct a jury at para. 49 of McNeill. He stated:

If [an instruction] is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.

[44] It was open to the trial judge to consider the defence’s failure to properly confront the three witnesses with the appellant’s contrary story when weighing his credibility on the key disputed fact.

[45] I would therefore not give effect to the appellant’s first ground of appeal.

(2) Did the trial judge err in using Officer Bates’s evidence to confirm the evidence of the other Crown witnesses?

[46] The appellant submits that the trial judge erred in determining that Officer Bates’s evidence confirmed that of Billingsley, Rainford and Munro thereby enhancing their credibility. The trial judge stated that the evidence of the three men was reliable because it was consistent with that of Officer Bates on the manner in which the car was being driven before the crash. The appellant submits that Officer Bates’s evidence on this fact did not enhance the credibility of the three men on the only material issue before the court, namely, who was driving the car at the time it crashed. The manner of driving was not the issue and Officer Bates’s evidence on this point was not challenged.

[47] The appellant submits that because Officer Bates’s evidence is equally consistent with the truth as with the falsity of the Crown witnesses’ evidence as to who was driving, the evidence could not be confirmatory on that issue. For evidence to be confirmatory it must enhance the probability of truth of the suspect witness’s evidence on a substantive part of the case. If the evidence is equally consistent with the truth as with the falsity of the proposition for which it is asserted, it is not confirmatory: see Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 (Ont. H.C.).

[48] As the appellant acknowledges in his factum, however, confirmatory evidence need not implicate the accused: see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-16. Nor does the fact that the evidence was not challenged remove its capacity to be considered as confirmatory evidence. A fact that is capable of being confirmed does not lose that quality simply because a party chooses not to challenge it: see R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 136 O.A.C. 116, at para 16; R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 277.

[49] Contrary to the appellant’s submission, the trial judge did not use Officer Bates’s evidence as direct confirmation of the identity of the driver of the car. The core of the defence argument at trial was that the inconsistencies in the evidence of the three witnesses as to who drank what and when, and their state of intoxication, made them inherently unreliable witnesses on the issue of who was driving at the key time. The trial judge responded to this argument by saying, “Officer Bates was a reliable witness whose evidence I accept. He was on duty as a police officer and he was not consuming alcohol.” The following aspects of the evidence of Billingsley, Rainford and Munro as to the sequence of events just before the car crash were confirmed by Officer Bates:

• Rainford’s description of the defendant turning right at Pethricks Corners and accelerating;

• Rainford and Billingsley’s testimony as to the police pursuit with flashing emergency lights and the chase being discontinued;

• Their account of the timing of the start of the chase and the location of the crash;

[50] The fact that Officer Bates’s evidence confirmed the evidence of the three witnesses showed that, contrary to the defence submission, they were not so intoxicated that their evidence as to what happened at the material time was unreliable. Instead, their ability to recall details at the relevant time was reliable and enhanced their overall credibility. The trial judge therefore found their evidence that the appellant was the driver for the entire night to also be reliable. He was entitled to use Officer Bates’s evidence as he did.

[51] I would also dismiss this ground of appeal.

E. CONCLUSION

[52] For the reasons given I would dismiss the appeal. The trial judge did not err in his application of the rule in Browne v. Dunn or in treating the evidence of Officer Bates as confirming the reliability of the other Crown witnesses’ evidence.

Released: December 11, 2013 “Karen M. Weiler J.A”

KMW “I agree J. MacFarland J.A.”

“I agree David Watt J.A.”