Her Majesty the Queen v. Quansah

[Indexed as: R. v. Quansah]

Ontario Reports

Court of Appeal for Ontario,

Watt, Tulloch and Benotto JJ.A.

April 10, 2015

125 O.R. (3d) 81 | 2015 ONCA 237

Case Summary

Criminal law — Trial — Cross-examination — Defence counsel failing to cross-examine Crown witnesses on incidents relied on by accused in support of his claim that he stabbed deceased in self-defence — Trial judge being entitled to find that defence counsel breached rule in Browne v. Dunn — Crown not objecting when accused testified and doing so only at pre-charge conference — Trial judge not erring in choosing to remedy breach with jury instruction instead of recalling witnesses — Trial judge properly instructing jury that they were entitled but not required to consider failure to cross-examine witnesses on alleged incidents in determining weight to assign to accused's testimony.

The accused fatally stabbed a fellow inmate. He was convicted of first degree murder. Four inmates testified as Crown witnesses and described the events leading up to the stabbing. The accused testified that he agreed to fight the deceased in the deceased's cell and that he acted in self-defence when the deceased unexpectedly produced a knife. In his evidence, he recounted three prior incidents in support of his claim of self-defence that were never put to the Crown's witnesses and which challenged the reliability their evidence. At the pre-charge conference, the Crown objected for the first time to defence counsel's failure to put to these incidents to Crown witnesses. The trial judge ruled that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the Crown witnesses on the alleged incidents. He chose to remedy that breach with a jury instruction instead of recalling the witnesses. The accused appealed his conviction.

Held, the appeal should be dismissed.

The rule in Browne v. Dunn is not a fixed and inflexible rule of universal and unremitting application. The rule is grounded in fairness, and its application is confined to matters of substance and is very much dependent on the circumstances of each individual case. A trial judge is best suited to take the temperature of a trial and to assess whether any unfairness has been visited on a party because of the failure to cross-examine. In the circumstances, the trial judge was entitled to find that defence counsel breached the rule in Browne v. Dunn.

The Crown did not raise the breach when the accused testified nor did he ask to reopen during the remainder of the accused's case. The objection should have been made earlier, which would have given the jury the opportunity to hear the questions put to the Crown's witnesses and their replies. The trial judge had to fashion a remedy that met the ends of justice in the waning moments of a trial that had already extended well beyond its anticipated completion date. He did not err in declining to recall the witnesses when the Crown belatedly raised the issue. The remedy chosen was reasonable. The trial judge properly instructed the jury that the failure to cross-examine the witnesses was a factor that they were entitled, but not required, to consider in their determination of the weight to be given to the accused's testimony. [page82 ]

Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)); R. v. Giroux, [2006] O.J. No. 1375, 210 O.A.C. 50, 207 C.C.C. (3d) 512, 71 W.C.B. (2d) 185 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 211], consd

Other cases referred to

R. v. Blom (2002), 61 O.R. (3d) 51, [2002] O.J. No. 3199, 162 O.A.C. 238, 167 C.C.C. (3d) 332, 6 C.R. (6th) 181, 96 C.R.R. (2d) 122, 55 W.C.B. (2d) 108 (C.A.); R. v. Boucher, [1955] S.C.R. 16, [1954] S.C.J. No. 54, 110 C.C.C. 263, 20 C.R. 1; R. v. Dexter, [2013] O.J. No. 5686, 2013 ONCA 744, 313 O.A.C. 226, 54 M.V.R. (6th) 175, 110 W.C.B. (2d) 656; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.); R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.); R. v. Henderson (1999), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 120 O.A.C. 99, 134 C.C.C. (3d) 131, 42 W.C.B. (2d) 138 (C.A.); R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, 235 D.L.R. (4th) 244, 316 N.R. 52, J.E. 2004-452, 184 O.A.C. 1, 180 C.C.C. (3d) 476, 17 C.R. (6th) 1, 60 W.C.B. (2d) 74; R. v. McNeill (2000), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 131 O.A.C. 346, 144 C.C.C. (3d) 551, 33 C.R. (5th) 390, 46 W.C.B. (2d) 121 (C.A.); R. v. Paris, [2000] O.J. No. 4687, 138 O.A.C. 287, 150 C.C.C. (3d) 162, 48 W.C.B. (2d) 294 (C.A.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 124]; R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 314 O.A.C. 357, 300 C.R.R. (2d) 308, 305 C.C.C. (3d) 421; R. v. Verney, [1993] O.J. No. 2632, 67 O.A.C. 279, 87 C.C.C. (3d) 363, 21 W.C.B. (2d) 396 (C.A.)

APPEAL by the accused from the conviction entered by Stong J. of the Superior Court of Justice on August 8, 2006, sitting with a jury.

Brian Snell and Gabriel Gross-Stein, for appellant.

David Finley, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — Minh Tu challenged Richard Quansah to a fight. At first, Quansah demurred. The next morning, Quansah answered the challenge. He killed Tu.

[2] Quansah said he stabbed Tu in self-defence. The jury at Quansah's trial decided otherwise and found him guilty of first degree murder.

[3] Quansah appeals. He argues that the trial judge misapprehended the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)) and, as a result, included in his charge an instruction that was not warranted and fatally compromised the fairness of his trial.

[4] I would not give effect to these claims and would dismiss the appeal.

The Background Facts

[5] To appreciate the arguments advanced, some background about the circumstances in which Tu died is necessary before the [page83 ]focus is shifted to the cross-examination of various witnesses at trial and the evidence given by Quansah.

A. The Central North Correctional Centre

The floor plan

[6] Central North Correctional Centre ("CNCC") is a prison that houses inmates awaiting trial, as well as those serving sentences of up to two years less one day. The prison consists of six living units. Each unit houses six trapezoidal ranges. The ranges are arranged in a circular fashion, like pieces of a pie, around a central rotunda.

[7] A common area or "day room", which contains tables and stools fixed to the floor, occupies the central part of each range.

[8] Two levels of cells are located along the outside walls of each range. Food is passed through two "feeding hatches" in the wall separating the range from the rotunda.

[9] From a control module in the centre of the rotunda, guards have a clear line of sight into the range, but not into the interior of the cells or the shower area.

The cell doors

[10] The cell doors are unlocked or "cracked" at 9:00 a.m. and remain unlocked for one hour. The doors can be opened by cell occupants during this time but relock if they are pushed closed. To enter or exit a cell, without being locked in or out, the door must be left to rest gingerly on its pins or an object inserted in the space between the door and the door frame.

The range

[11] In early May 2004, Tu and Quansah were both inmates in Unit 1-A. Tu had been there about three weeks, Quansah for about half that time. Tu was skilled in martial arts and, according to some inmates, "the toughest guy on the range".

[12] Tu was a late sleeper. He often remained asleep in his cell after the doors had been "cracked" at 9:00 a.m.

The social circles

[13] Allegiances in Unit 1-A divided along racial lines. Tu was aligned with white and Asian inmates, including the Crown witnesses Dean Ireland, Edward Clare and Michael Ayres. Quansah was associated with a group of black and Arab prisoners including David Clarke, Nana Prempeh and Jawad Mir, none of whom testified at trial. [page84 ]

The inmate code

[14] An informal inmate "code" regulates life among the prisoners. The code requires any inmate challenged to a fight by another inmate to fight. An inmate who fails to respond to the challenge may be beaten, stabbed or kicked off the range, as determined by senior inmates. An inmate who at first fails to respond to a challenge to fight may restore his reputation by "showing up" subsequently through arrangements made with senior inmates.

[15] The areas best suited for fights between inmates are those not visible to the guards from the control module: the shower area and inside individual cells. The best time for cell fights is in the morning after the cell doors have been "cracked".

B. Events leading up to the stabbing

The game of "Risk"

[16] Inmates at CNCC played the board game "Risk" at tables in the day room.

[17] On May 4, 2004, inmate Lavallee, Tu and some other inmates were about to begin a game of "Risk". Quansah was in the shower. Lavallee yelled at Quansah to hurry up. Quansah responded angrily. Quansah left the shower area, walked over to the table where the "Risk" game was underway and assaulted Lavallee, although Lavallee claimed Quansah did not hit him.

The challenge

[18] Tu stood up by the table. He challenged Quansah to a fight. Tu stripped down to his shorts and walked over to the shower area where he practised a few kicks. He called out to Quansah again. Quansah said he was scared or scared to fight Tu. Another inmate yelled "six up", indicating that guards were watching.

[19] No fight occurred.

The aftermath

[20] Accounts differ about what happened between Tu and Quansah after Tu challenged Quansah to a fight.

[21] According to Quansah, Tu emerged from the shower with three other inmates, including Quansah's cellmate, Ayres. They blocked Quansah's view of the television. Tu accused Quansah of causing trouble on the range. A guard came to the window and Tu retreated. Soon after, another guard took Quansah to the rotunda and asked if there was a problem. When Quansah [page85 ]returned, Tu accused Quansah of "ratting" him out and then walked away.

[22] Other inmates talked to Tu later and testified that Tu considered the altercation over and was prepared to let things die down.

[23] Quansah was concerned about the consequences of having backed down when Tu called him out to fight. He would be labelled a "punk" and his position with other inmates would be compromised. Other inmates noticed that Quansah was uncharacteristically quiet and stared at Tu. There was some evidence that Quansah wrote out a "kite" -- a written message to inmates on another range -- and passed it through the door to the adjacent range.

The evening meeting

[24] That same evening, some senior inmates on the range met with Quansah in the common area. They told Quansah he had to fight with Tu or he would be kicked off the range. Quansah was concerned he would be "rushed" by Tu's friends but was assured by one of the inmates that he would be backed.

[25] Quansah agreed to fight Tu one-on-one.

After lock-up

[26] When the cells were locked for the evening, the guards conducted a search for weapons. Quansah was strip searched. No weapons were found.

[27] Ayres was Quansah's cellmate. According to Ayres, Quansah remained angry about the argument with Tu. Quansah said "that guy doesn't know me. I'm not a punk. This isn't over." Quansah testified that Ayres, a friend of Tu, threatened him. Quansah was afraid that Ayres might harm him during the night. Quansah did not fall asleep until Ayres left the cell early in the morning to go to court.

C. The stabbing

[28] It was uncontested at trial that Quansah stabbed Tu to death in Tu's cell after the doors were "cracked" at 9:00 a.m. on May 5, 2004. Quansah and Tu were the only persons in the cell at the time of the stabbing. Nobody saw Quansah with a knife when he entered Tu's cell that morning.

[29] The accounts varied about what happened shortly before Quansah entered and after he left Tu's cell. [page86 ]

The account of Edward Clare

[30] Clare was an ally of Tu. After the cell doors had been "cracked", he saw Clarke (who did not testify), a member of Quansah's group, open and shut the door to Billy Tran's cell, locking Tran inside. Locked in the cell, Tran, a friend of Tu, could not help in any altercation with Quansah.

[31] Quansah walked by another inmate, Brooks, and said it "better be one-on-one". Quansah walked into cell number nine, Tu's cell, as Clarke opened the cell door and held it open. Clare heard some noise from the cell. The cell door opened. Clarke almost fell down. The door partially closed and then opened again. Clare could see blood. Clarke put a bottle in the door to prevent it from closing all the way. Somebody yelled from inside the cell: "you thought you had me last night".

[32] According to Clare, when Quansah left the cell, his shirt was pulled down at the front. Quansah said "holy fuck" as he left Tu's cell.

The account of Dean Ireland

[33] Ireland, another member of Tu's group, saw Quansah and Clarke walk up the stairs to the upper level of cells after the doors were "cracked" at 9:00 a.m. on May 5. Quansah gave Mir, an ally, a "Muslim hug", then entered Tu's cell and closed the door so that it would not lock behind him.

[34] Ireland heard a loud banging from inside the cell. He saw Quansah's arm come out of the door and then quickly disappear from view. He did not see a knife. Clarke inserted a shampoo bottle between the door and the doorframe to prevent the door from locking. Seconds later, Quansah walked out of the cell, his T-shirt stretched at the shoulder. Quansah held a bloody knife in his right hand.

The Robert Fallis version

[35] Fallis saw Quansah walk up the stairs to the second level of cells, hug Mir, and then walk down the corridor with Clarke and Prempeh towards Tu's cell. Quansah walked into the cell. Mir looked over the railing towards the rotunda area. Prempeh looked in the window of Tu's cell. Clarke held the door against his foot to prevent it from opening or closing.

[36] About 30 seconds later, Fallis heard a noise from inside Tu's cell. The cell door opened. Quansah's leg came out the door and then returned inside the cell. The door partially closed. Soon afterwards, Quansah walked out of the cell. He stared [page87 ]straight ahead. His left hand was cupped, his shirt ripped on the left side.

Richard Quansah's account

[37] Quansah gave evidence at trial. He testified that when the cell doors were "cracked" on May 5, he walked from his cell to Tu's cell, intending to have a consensual fight with Tu without weapons. En route, he learned from Clarke that something had been done to ensure that Tu's ally, Tran, would not get involved. When he arrived at the second level of the range, Quansah met Mir. They hugged "in the Muslim style". Together with Clarke, Quansah walked towards Tu's cell. The door to the cell rested on its latch. A shoe kept the door open.

[38] Through the window in the cell door, Quansah saw Tu seated, facing the bed. Quansah entered. Tu jumped up. The fight began. Tu tried to knee and kick Quansah in the crotch. They exchanged punches. Tu doubled over from a punch and then rammed Quansah backwards into the door. Tu broke free, turned and grabbed something from the desk. He made a throwing motion. Quansah heard "a clatter" and then saw a knife on the ground.

[39] The men exchanged looks. Both lunged for the knife. Tu bent over to grab the knife. Quansah pushed Tu back and then grabbed the knife with his right hand. Tu tried to pry the knife out of Quansah's hand. Quansah told Tu to stop. Quansah began to panic. He pushed Tu away. Tu jumped back. Quansah stabbed Tu as Tu continued to advance towards him. Tu draped himself over Quansah. Quansah then stabbed Tu in the back. Tu moaned. Quansah ran out of the cell.

D. After the stabbing

The denouement

[40] After leaving Tu's cell, Quansah walked to the cell occupied by Mir and Ireland. There, he washed and disposed of the knife and changed his shirt. The knife was never recovered. Some strips of cloth were found in the plumbing in the cell occupied by Mir and Ireland.

[41] When a lockdown was announced, Quansah returned to his cell. There he was strip searched. He had a cut on one of his hands, but very little blood on his clothing and no blood on his shoes.

The knife

[42] Ireland claimed that he had seen a knife in Quansah's right hand when Quansah left Tu's cell. Ireland described it as a pocket knife with a three inch blade and a string attached to it. [page88 ]Ireland's sketch of the knife was filed as an exhibit at trial. No one else gave evidence about seeing a knife in Quansah's hand before he entered or after he left Tu's cell.

[43] About three or four days before the argument over the board game, Ireland said he had seen Tu with a knife. When Ireland asked Tu about the knife, Tu said: "you'll never know when you need it".

The cause of death

[44] When paramedics arrived, Tu was conscious. He would not say what had happened, but did tell the first responders that he had returned to his cell after breakfast. Tu suffered six stab wounds, divided equally between his chest and his back, as well as a defensive wound to his left hand.

[45] Tu died from stab wounds to his chest.

The Positions of the Parties at Trial

[46] It was the position of the trial Crown (not Mr. Finley) that Quansah, humiliated by Tu during the argument about the game of "Risk", got together with Clarke, Prempeh and Mir after the incident and plotted Tu's murder. The murder was to take place the next morning in Tu's cell. To ensure that Tu was alone, Clarke confined Tu's ally, Tran, to his cell. Quansah entered Tu's cell as he slept and stabbed Tu to death with a knife he had taken there for that very purpose.

[47] At trial, counsel for Quansah (not Mr. Snell, who is counsel on appeal) contended that Quansah had been humiliated by Tu in their altercation over the game of "Risk". To restore his reputation sullied by his failure to fight Tu when challenged, and to ensure his continued safety in the institution, Quansah went to Tu's cell early the next morning. Quansah's purpose was to engage in a consensual one-on-one fight. The fight began as a fist fight. As the fight progressed, Tu produced a knife. The men struggled over the knife. Quansah gained control of the knife and stabbed Tu in self-defence.

The Grounds of Appeal

[48] The appellant advances two related grounds of appeal.

[49] First, the appellant says the trial judge erred in holding that trial counsel had breached the rule in Browne v. Dunn by failing

(i) to cross-examine Clare, Fallis and Ireland about a shoe propping open the door to Tu's cell before the appellant arrived on the morning of the stabbing; [page89 ]

(ii) to cross-examine Fallis on Quansah's alleged remark, "your friend needs help", as Quansah left Tu's cell after the stabbing; and

(iii) to cross-examine Ayres on whether he threatened Quansah in their cell the night before the stabbing.

[50] Second, the appellant contends that the trial judge erred in instructing the jury.¹ The appellant alleges the trial judge erred in telling the jury they could consider, as a factor in assessing the weight to be assigned to Quansah's evidence, the failure to cross-examine these witnesses and thus afford them an opportunity to respond to the contradictory version offered by the appellant. Quansah's version was the sole support for self-defence. The appellant also alleges the trial judge should have reminded the jury that counsel's failure to cross-examine could have been inadvertent.

Ground #1: Breach of the rule in Browne v. Dunn

A. Three specific incidents

[51] The first ground of appeal alleges that the trial judge erred in finding that trial counsel for the appellant breached the rule in Browne v. Dunn by failing to put, in cross-examination of four inmate witnesses, three specific incidents about which the appellant testified in advancing self-defence.

[52] One incident involved a threat allegedly made by the appellant's cellmate, Ayres, several hours before Tu was killed. The second related to the state of Tu's cell door when the appellant entered shortly after 9:00 a.m. on May 5. The third had to do with a remark the appellant allegedly made to Fallis in the presence of two other inmates as he left Tu's cell and proceeded to Mir's cell to dispose of the knife and some clothing.

[53] A brief reference to the evidence of the appellant and the inmate witnesses about each incident provides a basis upon which to assess the validity of this claim.

The Ayres threat

[54] The appellant testified that he and his cellmate, Ayres, did not get along. The appellant wanted Ayres moved out of their cell. Ayres was a friend of Tu and had threatened the appellant after the incident with the game of "Risk". The appellant was [page90 ]concerned that Ayres might "jump" him. After lockdown, Ayres talked about the incident and said that bad things were going to happen. The appellant said he slept little that night in fear that Ayres would attack him.

[55] Ayres gave evidence that, in their discussion about the incident with the board game, the appellant, in describing himself, told Ayres that he was not a "punk". It seemed the appellant did not consider the incident with Tu to be over.

[56] Trial counsel for the appellant never suggested to Ayres in cross-examination that he had threatened the appellant that bad things would happen to him or said anything which might lead the appellant to believe that anything of that nature would occur.

The shoe in the door

[57] The appellant testified that when he arrived at the door to Tu's cell shortly after 9:00 a.m. on May 5, he noticed a shoe already in place to prevent the door from locking. Clarke was with the appellant to ensure the fight was one-on-one. The appellant saw Tu, sitting down in his cell, apparently "collecting his thoughts". Clarke remained outside the cell when the appellant entered and began his fight with Tu.

[58] Clare saw Clarke open the door to Tu's cell. The appellant entered. Clarke held the door to prevent it from closing. The door opened twice during the altercation inside. Each time the door opened, Clarke pushed it back. Clarke also put a bottle on the floor to prevent the door from locking.

[59] Clare was not cross-examined about the door to Tu's cell. Nor was he asked about Clarke's activities there. No suggestion was put to Clare that a shoe was already in the doorway when Clarke and the appellant approached Tu's cell. Clare confirmed that Tu was usually a late sleeper. Clare had no idea what Tu was doing in his cell as the appellant and Clarke approached or what happened inside the cell after the appellant entered.

[60] Fallis saw Clarke open the door for the appellant and hold it open using his hand and foot after the appellant entered Tu's cell.

[61] Fallis was not cross-examined about the condition of the door to Tu's cell when the appellant and Clarke approached. Counsel did not put any suggestion to Fallis that the door was held open by a shoe. Fallis was not cross-examined about what Clarke did at the door after the appellant had entered.

[62] Ireland, a very reluctant and uncooperative witness for the Crown, gave evidence that the appellant entered Tu's cell [page91 ]and rested the door so that it would not lock. Later, Clarke put a shampoo bottle on the floor to prevent the door from locking.

[63] In cross-examination, Ireland confirmed that Clarke held or wedged something in Tu's cell door to ensure that it did not lock. It was never suggested to Ireland that the cell door was held open by a shoe already in place when the appellant and Clarke arrived.

[64] Clarke did not testify.

The post-offence remark

[65] In his testimony, the appellant said that, as he left Tu's cell after the stabbing and went to Mir's cell, he passed inmates Brooks and Fallis. He said to Fallis: "your friend needs some help".

[66] Fallis gave no evidence about any remark made by the appellant after he left Tu's cell. It was not suggested to Fallis in cross-examination that the appellant had made such a remark as he headed toward Mir's cell.

B. The positions of the parties

[67] Mr. Snell, counsel on appeal, says trial counsel did not violate the rule in Browne v. Dunn in connection with any of the issues found by the trial judge.

[68] So far as the alleged threat by Ayres is concerned, Mr. Snell contends that the rule in Browne v. Dunn was neither engaged nor violated. The appellant took no issue with Ayres' claim that the appellant did not sleep the night before he killed Tu. The appellant offered a contrary explanation to the inference of planning that emerged from Ayres' evidence -- fear of reprisal due to Ayres' threats. In the overall context of the case, the point was of no great significance. Failure to cross-examine on it did not offend the rule in Browne v. Dunn and worked no great mischief.

[69] In connection with the failure to cross-examine Fallis, Ireland and Clare about the shoe in the doorway to Tu's cell when the appellant and Clarke arrived, Mr. Snell says this evidence held no impeachment value and thus did not engage the rule in Browne v. Dunn. The important point was the consensual nature of the fight, not what held Tu's door open permitting the appellant to enter. Ireland and Fallis confirmed the consensual nature of the fight and nothing the appellant said later contradicted this core feature of their testimony. Clare was, and demonstrated himself to be, a highly suspect witness prone to exaggeration and unworthy of belief. Trial counsel was under no obligation to slog [page92 ]through every detail of the appellant's version to forestall a possible Browne v. Dunn objection.

[70] Nor was the rule in Browne v. Dunn offended by the failure to cross-examine Fallis on the "your friend needs some help" comment as the appellant walked away from Tu's cell after the stabbing. Fallis gave no evidence-in-chief about whether the appellant said, or did not say, anything to him at that time. It follows that the appellant's evidence claiming he made such a comment did not, indeed could not, impeach Fallis on his account of what the appellant said after the killing. Further, this evidence was insignificant in the context of the case as a whole.

[71] For the respondent, Mr. Finley contends that each admitted failure of cross-examination implicated and offended the rule in Browne v. Dunn.

[72] The failure to cross-examine Ayres about the threats he made the previous evening offended the rule in Browne v. Dunn though not to the same extent as the other breaches. Ayres' evidence-in-chief, buttressed to some extent by other evidence, supported the Crown's position that the appellant was angry and ruminating over his impending attack on Tu. This supported the Crown's claim that Tu's murder was planned and deliberate. The appellant's claim that Ayres threatened him undermined Ayres' account and weakened the force of the evidence about the appellant's state of mind shortly before the killing. This was important and should have been put to Ayres in cross-examination.

[73] Mr. Finley says the failure of the appellant's trial counsel to cross-examine Clare, Ireland and Fallis about the shoe in the doorway to Tu's cell was a serious breach of the rule. None of Fallis, Ireland or Clare said they saw anything in Tu's doorway holding the door ajar as Clarke and the appellant approached. Nothing was placed in the doorway or held the door open until after the appellant had entered. On the basis of this evidence, the jury could have concluded there was no dispute that Tu's door was open but unlocked before the appellant's arrival. A shoe in the door further suggested the Crown's witnesses were unreliable. In addition, the shoe in the door suggested Tu was up, not sleeping in as he usually did, and was waiting for the appellant. The inmate witnesses should have been confronted with this version of events.

[74] Mr. Finley also characterizes the failure to cross-examine Fallis on the "your friend needs some help" remark as a serious breach of the rule. From Fallis' evidence-in-chief, the jury could reasonably conclude the appellant had said nothing, one way or the other, as he passed by Fallis en route from Tu's cell to [page93 ]Mir's cell, with a knife in his hand. The appellant's remark tended to show a state of mind inconsistent with a planned and deliberate murder and consistent with a consensual fight gone wrong. The remark could also be summoned to neutralize some post-offence conduct such as disposing of the knife and damaged clothing.

C. The governing principles

[75] In Browne v. Dunn, Lord Herschell L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.), at p. 141 C.C.C.; and R. v. McNeill (2000), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.), at para. 44.

[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.

[77] The rule is rooted in the following considerations of fairness:

(i) Fairness to the witness whose credibility is attacked:

The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, [2013] O.J. No. 5686, 2013 ONCA 744, 313 O.A.C. 226, at para. 17; Browne v. Dunn, at pp. 70-71;

(ii) Fairness to the party whose witness is impeached:

The party calling the witness has notice of the precise aspects of that witness's testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and

(iii) Fairness to the trier of fact:

Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment [page94 ]to be unfounded and thus compromise the accuracy of the verdict.

[78] In addition to considerations of fairness, to afford the witness the opportunity to respond during cross-examination ensures the orderly presentation of evidence, avoids scheduling problems associated with re-attendance and lessens the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted.

[79] Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness' evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it: R. v. Hart (1932), 23 Cr. App. R. 202 (Ct. Crim. App.), at pp. 206-207; R. v. Fenlon (1980), 71 Cr. App. R. 307 (C.A.), at pp. 313-14.

[80] As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris, [2000] O.J. No. 4687, 150 C.C.C. (3d) 162 (C.A.), at paras. 21-22, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 124; R. v. Giroux, [2006] O.J. No. 1375, 207 C.C.C. (3d) 512 (C.A.), at para. 42, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 211.

[81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney, [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.), at pp. 375-76 C.C.C.; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.

[82] In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness' version of events. Where the confrontation is general, known to the witness and the witness' view on the contradictory matter is apparent, there is no need [page95 ]for confrontation and no unfairness to the witness in any failure to do so.

[83] It is worthy of reminder, however, that the requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.

[84] The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness' testimony depends on several factors. The factors include but are not limited to

(i) the nature of the subjects on which the witness was not cross-examined;

(ii) the overall tenor of the cross-examination; and

(iii) the overall conduct of the defence.

See Paris, at para. 23.

[85] Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused's credibility. On the other hand, where a central feature of a witness' testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused's credibility: Paris, at para. 23.

[86] The confrontation principle is not violated where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness' story: Browne v. Dunn, at p. 71. Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule: Verney, at p. 376 C.C.C.

D. The principles applied

[87] I would not give effect to this ground of appeal.

[88] Two preliminary and oft-made observations serve as my point of departure for the discussion that follows.

[89] First, it is too easily overlooked that the rule in Browne v. Dunn is not some ossified, inflexible rule of universal and unremitting application that condemns a cross-examiner who defaults to an evidentiary abyss. The rule is grounded in fairness, its application confined to matters of substance and very much dependent on the circumstances of the case being tried: [page96 ]Verney, at p. 376 C.C.C.; R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 49.

[90] Second, and as a consequence of the fairness origins of the rule, a trial judge is best suited to take the temperature of a trial proceeding and to assess whether any unfairness has been visited on a party because of the failure to cross-examine. Consequently, the trial judge's decision about whether the rule has been offended and unfairness has resulted is entitled to considerable deference on appeal: Giroux, at para. 49.

The shoe in the door

[91] The state of Tu's cell door and Tu's position in the cell as the appellant approached and entered were of some importance to both the prosecution and defence at trial. It was not controversial that Tu slept late, at least as a general rule. Nor was it disputed that the appellant approached Tu's cell after the doors had been cracked open at 9:00 a.m. on May 5.

[92] Fallis and Ireland gave evidence for the Crown about the appellant's approach to the door with Clarke. Clarke stayed outside the cell to ensure that the door did not close locking the appellant inside and that no one else entered during the fight. Neither reported seeing the door propped open by a shoe.

[93] The appellant's account of the shoe in place when he approached the door and entered Tu's cell does not directly contradict a specific denial of the presence of a shoe by Fallis and Ireland. But the appellant's evidence about the shoe was central to his claim that Tu, contrary to his usual habit of sleeping late, was awake and awaiting the appellant's arrival. That Tu had taken the time to open the door and to secure it against accidental or premature closure could also render it more probable that he took other precautions to protect himself against a surprise attack, such as having a knife accessible to him in his cell. These arrangements tended to support the appellant's claim of self-defence and neuter the Crown's theory that the appellant took the knife with him when he entered Tu's cell, caught Tu off guard and then stabbed him to death.

[94] None of Clare, Ireland or Fallis testified about seeing anything in the doorway to Tu's cell holding the door ajar as the appellant and Clarke approached and the appellant entered. According to both Clare and Ireland, it was only after the appellant had entered Tu's cell that his backup, Clarke, put a shampoo bottle in the doorway to ensure the door did not lock the appellant inside the cell with Tu. Fallis testified that Clarke's foot in the doorway was what prevented locking. [page97 ]

[95] The appellant's version challenged the reliability of the evidence of Clare, Ireland and Fallis, and the accuracy of their observations. The placement of the shoe in the door in advance of the appellant's entry was a matter of significance to the facts of the case and not some inconsequential detail. It was a subject on which both Fallis and Ireland should have been cross-examined. The failure to do so was of sufficient significance to permit the trial judge to find that counsel had not complied with Browne v. Dunn. The failure to cross-examine Clare was of less significance since it was clear to all parties that his evidence was of "so incredible and romancing a character" as to be unworthy of credit on any issue of significance: Browne v. Dunn, at p. 79.

The Ayres threat

[96] Ayres and the appellant were cellmates, but not friends. Ayres was a friend of Tu. Both testified that the appellant was awake during the night immediately preceding the killing. Ayres said the appellant was awake, stewing in anger over the deceased. The appellant said he stayed awake because he was concerned Ayres would attack him during the night. Ayres was not cross-examined about any threats made to the appellant or about anything he may have said to the appellant about future consequences of the failure to respond to Tu's challenge.

[97] The appellant's state of mind within hours of killing Tu was an important issue at trial. The appellant's account of his interaction with Ayres created an impression that the appellant was fearful of an attack from him, not that he was stewing over what Tu had done and was thus more likely to have been the aggressor in the fight the following morning.

The post-offence remark

[98] The appellant walked by Fallis and Ireland after leaving Tu's cell. In their testimony, neither Fallis nor Ireland mentioned a comment by the appellant as he headed towards Mir's cell with the knife in his hand. At the very least, it was implicit in the account provided by Fallis and Ireland that the appellant had said nothing as he passed them by.

[99] In his testimony, the appellant claimed that he said to Fallis "your friend needs some help" as he left Tu's cell and walked toward Mir's cell. Fallis then went to Tu's cell to check on him.

[100] The appellant's testimony contradicted Fallis' evidence. Fallis' version reflects a lack of concern on the appellant's part for Tu, which tends to rebut the appellant's later claim of a killing in lawful self-defence. The appellant's version, and expressed [page98 ]concern about Tu's condition, provides some support for a claim that Tu died as a result of an unfortunate consequence of a consensual fight in which the appellant acted lawfully, rather than as a result of a previously formulated plan to kill.

E. Conclusion

[101] Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot be determined in the abstract. Each case is different. The rule is flexible, not rigid. It is rooted in fairness. Reasonable people may differ about on which side of the line a failure to cross-examine on a particular point falls. A trial judge should be accorded considerable deference on a decision about its application. A trial judge has a reserved seat at trial. We have a printed record.

[102] Another trial judge may not have considered what occurred here as offensive to the flexible rule in Browne v. Dunn. But that is beside the point. This trial judge did. I am unable to conclude that he abused his discretion in reaching that conclusion.

Ground #2: The remedy for the breach

[103] The second ground of appeal has to do with the remedy applied by the trial judge for the breach of the rule in Browne v. Dunn.

[104] It is helpful to begin with a brief outline of the circumstances in which the breach of the rule was first raised at trial.

A. The complaint

[105] The trial Crown made no complaint about any breach of the rule in Browne v. Dunn when the appellant testified at trial.

[106] In a pre-charge conference held on July 5, 2006, prior to the closing addresses of counsel, the trial Crown raised the issue about breach of the rule. In a subsequent pre-charge conference held on July 7, 2006, he sought an instruction in the jury charge that the jury could take the failure of defence counsel to cross-examine Fallis, Ireland, Ayres and Clare on contradictory evidence given by the appellant into account in assessing the weight to assign to the appellant's (and the witnesses') testimony.

[107] Trial counsel for the appellant took issue with Crown counsel's request. He submitted that Crown counsel was required first to seek leave to recall the witnesses and to obtain from them, under oath and subject to cross-examination, their response to the contradictory evidence. A failure to seek to recall the witnesses, trial counsel submitted, disentitled the Crown to the instruction it sought. [page99 ]

[108] The trial Crown disputed the necessity for such a request as a condition precedent to the requested jury instructions. The Crown pointed out that Ayres was in custody and Fallis was in custody outside the province, rendering it impractical to recall them.

B. The ruling of the trial judge

[109] The trial judge was satisfied that Crown counsel had established breaches of the rule in Browne v. Dunn. He found that the breaches warranted a jury instruction similar to what was given by the trial judge in Giroux, at para. 43.

[110] The trial judge said nothing about the obligation of the Crown to first seek to recall the witnesses or the relevance of Crown counsel's failure to do so on the availability or content of the jury instruction Crown counsel sought.

C. The position of the parties

[111] For the appellant, Mr. Snell says the proper remedy for breach of the rule in Browne v. Dunn in this case was to recall the witnesses to obtain their evidence about the contradictory version offered by the appellant. The trial Crown offered no explanation about the whereabouts of Clare and Ireland, thus no reason why they could not be recalled. Ayres and Fallis were both in custody. Their attendance could be easily secured by a judge's order. The authorities emphasize witness recall as the first option. The trial judge should have required the Crown to choose whether to recall the witness.

[112] Mr. Snell submits that where the Crown fails to take up the recall option or, as here, fails to request it, the Crown is not entitled to a Browne v. Dunn instruction. In either of these circumstances, only the traditional "you may believe some, all or none of what a witness says" instruction need be given and it is wrong to include the Browne v. Dunn instruction.

[113] In the alternative, Mr. Snell says the instruction here was seriously flawed because it failed to remind jurors that counsel's failure to cross-examine may have been due to inadvertence, and thus should not be a factor the jurors could consider in assessing the appellant's credibility or the reliability of his evidence.

[114] For the respondent, Mr. Finley replies with a reminder that once a breach of the rule has occurred, a trial judge has broad discretion to choose a remedy that best assures justice. Sometimes, the proper choice is to recall a witness. But not always. On other occasions, as here, justice is best served by a jury instruction. [page100]

[115] Mr. Finley says the instruction remedy chosen by the experienced trial judge here demonstrates, by necessary implication, that the trial judge did not view the recall of witnesses as a viable solution, even though he made no specific mention of that alternative in his reasons. The choice of remedy is discretionary and dependent on a variety of factors, which in this case included completing the case expeditiously in advance of the long-standing commitments of jurors made on the basis of an estimate trial time long surpassed.

[116] Mr. Finley acknowledges the trial Crown should have raised the Browne v. Dunn issue before the defence had closed its case when witness recall was a viable alternative. That said, the failure of trial Crown to ask for an order to permit recall of the witnesses does not bar the remedy applied here -- the jury instruction that left failure to cross-examine as a factor, one of many, in assessing the appellant's credibility as a witness. The omission of a reference to inadvertence was not an error, particularly in light of the trial judge's conclusion that the failure was a deliberate and a tactical choice by trial counsel.

D. The governing principles

[117] It should scarcely surprise that breaches of a rule grounded in fairness do not attract a single or exclusive remedy. The remedy is a function of several factors including, but not only,

-- the seriousness of the breach;

-- the context of the breach;

-- the timing of the objection;

-- the position of the offending party;

-- any request to permit recall of a witness;

-- the availability of the impugned witness for recall; and

the adequacy of an instruction to explain the relevance of failure to cross-examine.

See Dexter, at para. 20; R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, at para. 65.

[118] In the absence of a fixed relation between breach and remedy, appellate courts accord substantial deference to the discretion exercised by a trial judge in deciding what remedy is appropriate for breach of the rule: Dexter, at para. 22; Giroux, at para. 49; and R. v. Blom (2002), 61 O.R. (3d) 51, [2002] O.J. No. 3199 (C.A.), at para. 20. [page101]

[119] In the menu of remedies available to a trial judge who has determined that the rule in Browne v. Dunn has been breached are recall of the witness and an instruction to the jury about the relevance of the failure to cross-examine as a factor for them to consider in assessing the credibility of an accused as a witness and the reliability of his or her evidence: Dexter, at para. 21; McNeill, at paras. 46-47 and 49.

[120] In many cases, the first remedy a trial judge might consider is the availability of the witness for recall. In cases in which the witness is available without undue disruption of trial continuity and disjoinder of the narrative, the aggrieved party has the option of recalling the witness or declining to do so. Failure to take advantage of the opportunity to recall a witness may mean that the aggrieved party may not get the benefit of a Browne v. Dunn instruction in the charge to the jury: McNeill, at para. 48. But the rule is not inflexible, nor is the failure to seek or to recall an available witness the death knell for a specific jury instruction: Giroux, at para. 48; McNeill, at para. 50. Said another way, recall is not always a condition precedent to inclusion of a Browne v. Dunn instruction: Giroux, at para. 48.

[121] A trial judge who decides to give a specific instruction to the jury about the failure to comply with the rule in Browne v. Dunn as a factor to consider in the jury's credibility assessment need not pronounce a specific word formula to achieve that purpose. The instructions should not be characterized as a "special instruction", but should make it clear that the failure has relevance for the credibility of the witness who was not confronted with the contradictory evidence, as well as the credibility of the witness who gave the contradictory evidence. The instruction need not elaborate on the obligations of counsel: Paris, at paras. 27-29; Dexter, at para. 43.

[122] A final point about the timing of a Browne v. Dunn objection is appropriate.

[123] The trial Crown did not raise his Browne v. Dunn complaint until the pre-charge conference. The basis for the complaint arose when the appellant testified. The trial Crown said nothing then and nothing during the remainder of the defence case. After the defence had closed its case, the trial Crown did not ask the trial judge to recall the affected witnesses so that contradictory evidence could be put to them and their response heard by the jury.

[124] Timely objection is consistent with the duty of Crown counsel under R. v. Boucher, [1955] S.C.R. 16, [1954] S.C.J. No. 54, at pp. 23-24 S.C.R.; Dexter, at para. 37. Lying in the weeds to seize upon the failure to cross-examine as a basis for [page102] 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. No special rule applies to inmates or otherwise problematic witnesses. Absence of a timely objection to an alleged breach of the rule is a factor for the trial judge to consider in determining the nature of the remedy, if any, best suited to respond to the breach. On appeal, the absence of a timely objection is also a factor to be taken into account in determining whether the lateness of the objection, coupled with the remedy applied, caused sufficient unfairness that a miscarriage of justice resulted.

E. The principles applied

[125] Several reasons persuade me not to give effect to this ground of appeal.

[126] First, the trial judge's choice of remedy, a jury instruction about the impact of the breach as a factor in the assessment of the appellant's credibility, is entitled to considerable deference: Dexter, at para. 22; Giroux, at para. 49; and Blom, at para. 20. The remedy applied by the trial judge for the breach was one of several available to him under the existing jurisprudence in this province and elsewhere. The trial judge made no error in principle.

[127] Second, the trial judge had the unenviable task of fashioning a remedy that met the ends of justice in the waning moments of a trial that had already extended well beyond its anticipated completion date. He had to take into account commitments jurors had made on the basis of the original trial estimate. The alternative of witness recall would have disrupted trial continuity and pushed the addresses of counsel and the charge further into the future, exacerbating the problems arising from the jurors' commitments. In the real world of trial management, perfect solutions are unattainable. The remedy chosen here was reasonable, took into account the relevant circumstances and met the ends of justice.

[128] Third, the substance of the instruction was consistent with the governing authorities: Dexter, at para. 43. The trial judge told the jury that the failure to cross-examine the inmate witnesses on the contradictory aspects of the appellant's evidence was a factor that they were entitled, but not required, to consider in their determination of the weight to assign to the appellant's testimony. Permitted, in other words, but not required. The instruction did not expressly say or suggest by necessary implication that the failure to cross-examine required [page103] the jury to draw an adverse inference against the appellant's credibility or the reliability of his testimony.

[129] Fourth, the trial judge characterized his instruction as a "comment" on the testimony of the appellant, having earlier apprised the jury that they were not bound by his comments on issues of fact. He also made it clear that the tactical decisions of counsel were not to be visited on the appellant. His failure to go further, for example, to refer to the obligations of counsel in cross-examination or to make specific mention of "negligence", "inadvertence" or "oversight", did not render erroneous or otherwise compromise a proper instruction: Paris, at paras. 28-29.

[130] Finally, on the issue of timing, this is yet another instance of Crown counsel waiting until the penultimate stage of the trial to register an objection based on a failure to comply with Browne v. Dunn. In cases like this, the Browne v. Dunn objection crystallizes when an accused gives evidence on a point of substance about which a relevant Crown witness was not cross-examined. The time is then ripe for an objection, despite the inevitable compromise of trial continuity that occurs when any objection is taken to the introduction of evidence in a jury trial.

[131] This court and others have emphasized the importance of timely objections based on alleged failure to comply with the rule in Browne v. Dunn. Yet Crown dilatoriness persists, as in this case, as if some "Gotcha" principle were at work. Nothing is to be gained by such an approach which, in some cases at least, may compromise trial fairness and perhaps even integrity. The desired instruction will not always be given: McNeill, at para. 47; Paris, at para. 29.

Conclusion

[132] For these reasons, I would dismiss the appeal.

Appeal dismissed.

APPENDIX "A"

Regina v. Richard Quansah

Let me comment on Mr. Quansah's testimony that Tu had a shoe propping his door open in expectation of Quansah's arrival. It is for you to determine whether in fact a shoe was placed as Mr. Quansah says. To assist you in that determination I want to tell you a couple of factors, that you may, but you are not obliged to consider, as you determine how much weight you want to assign to Mr. Quansah's evidence.

It is clear that the presence of the shoe is an important piece of evidence capable of supporting the consensual nature of the confrontation in cell 9. [page104] While the consequences of tactical decisions made by his counsel at trial are not to be visited upon the accused, one factor you can consider as you determine how much weight to give Mr. Quansah's evidence is the opportunity given to other witnesses to challenge the evidence, the credibility of which you are assessing.

Messrs. Clare, Ireland and Fallis were all in a position to view the door to Tu's cell and possibly confirm the presence of a shoe, if that were so. They were thoroughly crossexamined to test their credibility and reliability on many issues, but none was asked about this material point, that is, whether they saw a shoe propping the door open before Quansah entered the cell. On a critical point to the defence which is a matter of substance upon which Mr. Quansah seeks to impeach the credibility of those witnesses, they were not afforded the opportunity to give an explanation by reason of there having been no suggestion whatsoever in the course of their evidence that their testimony would not be accepted on the issue of whether or how the door was situate in its unlocked state.

This simply means that Mr. Quansah's evidence, which came after that of Clare, Ireland and Fallis, was not held up to scrutiny to the same extent as was the testimony of Clare, Ireland and Fallis. You may consider that to be a factor that could reduce the weight that you may give to Mr. Quansah's evidence in regard the presence of Tu's shoe holding his cell door open in anticipation of Quansah's arrival, given that none of Clare, Ireland or Fallis was given an opportunity to comment.

While I am dealing with the matter of the weight to be given to Mr. Quansah's testimony, there are other matters about which none of Clare, Ireland or Fallis was given an opportunity to comment because while they were being questioned there was no suggestion that their story was not being accepted.

Mr. Quansah testified that he did not plan and deliberate the murder of Tu. Michael Ayers testified that he was Quansah's cell mate at the time and Quansah was awake the whole night brooding. Quansah admitted being awake the whole night until early morning when Ayers was taken from the cell in order to go to court. He testified that the reason he was awake was not because he was planning and deliberating what was to take place when the cell doors were unlocked later that morning, but he was awake all night because Ayers, who he regarded as a friend of his, taunted him when he went into the cell and he was afraid Ayers would harm him.

Ayers who testified before Quansah was never asked about threatening Quansah during the night as Quansah later testified. For the reasons I stated previously, that is a factor you may, but you are not required to, take into account in assessing Mr. Quansah's credibility.

Notes

1 The relevant part of the trial judge's charge is excerpted in Appendix "A".

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