Court Information

Date: November 21, 2018

Ontario Court of Justice Toronto, Ontario

Her Majesty the Queen v. Mike Hartlieb

Counsel:

• J. Vu for the Prosecution
• R. Rowe for the Defendant

Before: J. Opalinski J.P.

Heard: October 3, 2018

Delivered: November 21, 2018

Reasons for Judgment

Application

[1] The prosecution has brought an application citing the rule in Browne v. Dunn (1893) 6 R 67 (U.K.H.L.) whereby the court is being asked to consider the rule, whether or not it has been breached and if so what is the appropriate remedy?

Issue

[2] The issue before the court is: whether or not the rule as set out in Browne v. Dunn with regard to the introduction of evidence by the defendant has been breached and if so does it give rise to a specific remedy or remedies that the court should apply?

Submissions by the Prosecution

[3] The submissions of the prosecution may be summarized as follows:

(a) The prosecutor contends that the evidence of the label/sticker that the defendant introduced through his testimony should have been put to Officer Brown.

(b) By asking Officer Brown questions that are specific to the label/sticker that the Defendant produced as evidence in his testimony, the court would be in a better position to observe and assess the witness when he is confronted by contradictory evidence, thereby promoting the accuracy of the 'fact-finding process'. In so doing this process enhances public confidence in the justice system as the trier of fact can take into account the impeached evidence that was not originally put to the crown witness.

(c) In the final analysis, the rule in Browne v. Dunn is a rule of trial fairness. It is a rule of common sense. Otherwise the court is being asked to consider evidence that has not been tested which amounts to the court having to recreate the truth without all possible explanations that would otherwise be available.

(d) The prosecutor submitted that while there are different remedies that the court could apply, the primary remedy of recalling the officer so that he can be examined with regard to the issue of the label/sticker which was peeled from the defendant's vehicle, is the most appropriate remedy. It is more appropriate than the court simply putting the appropriate weight on the evidence given by the defendant as we do not know what the officer's evidence would have been if the defendant had put the evidence of the label/sticker to him.

Submissions by the Defendant's Agent

[4] The defendant's agent's submissions may be summarized as follows:

(a) It is as a result of the officer's evidence that the defendant brought hard evidence to refute what the officer had testified to.

(b) The defendant can present contradictory evidence which is part of our adversarial system.

(c) The objection should have been made right after the defendant introduced this evidence and the court should consequently apply the later remedy: which is give the evidence the appropriate weight and not the primary remedy being requested by the prosecution.

The Law

[5] The rule in Browne v. Dunn is not a hard and fast rule. This was a case of defamation heard in the English Court of Appeal with respect to evidence given and cross examination of a witness which was appealed to the House of Lords.

Lord Herschell stated:

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. (at page 70-71)

All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. (at page 71)

Lord Halsbury indicated:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. (at page 76-77)

[6] The rule in Browne v. Dunn has been referenced in several more recent decisions. In R. v. Dexter 2013 ONCA 744, the court clearly enunciated what the rule stands for. It is not merely a procedural rule but a rule of trial fairness. "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 application of this rule acts as a means of preventing a witness from being 'ambushed'. (at para 17)

[7] The remedy that a trial judge should consider with regard to a breach of the rule in Browne v. Dunn depends on a number of factors, namely: the seriousness of the breach; the context in which the breach occurred; the state 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 mistrial should be entertained. (at para 20)

[8] The rule enunciated in Browne v. Dunn has been outlined and applied in R. v. Zvolensky 2017 ONCA 273. The court indicated that the rule applies when a witness is contradicted by other testimony but opposing counsel has not put the alternate version of events to that witness to be cross-examined on. Whether there has been a breach of the rule and what remedy is needed, depends on the circumstances of each case. The application of the rule does not mean that a witness should be confronted with every scrap of contradictory evidence, but rather with matters of substance to which the witness should be afforded the opportunity to reply to and explain. (at para 134) Sometimes in cross-examination counsel may not accept a witness' version of events and if the subject is not touched in cross-examination and is later contradicted but is of little significance to the case, a failure to cross-examine on this point is of little significance. Therefore, for the rule in Browne v. Dunn to be invoked, the court needs to determine that the evidence in question is significant or of importance; is given by a defence witness that contradicts the evidence of a prosecution witness; the witness's view of the evidence is not already apparent; and the prosecution has invoked the rule to the court in a timely manner.

[9] The court in R. v. Quansah 2015 ONCA 237, indicated that the rule in Browne v. Dunn, has been described in Australia as the 'Puttage' Rule because it requires the cross-examiner to 'put' to the opposing witness in cross-examination the substance of the contradictory evidence to be adduced i.e. this version of events through the cross-examiner's own witness or witnesses. (at para 76)

[10] The rule is rooted in the concept of consideration of fairness: fairness to the witnesses whose credibility is attacked; fairness to the party whose witness is impeached; and fairness to the trier of fact. It is not a 'fixed rule' as it depends on the circumstances of each case. (at para 76 & 80) However, the trial judge is best suited to determine the issue of fairness and take the temperature of the proceeding as the trial judge has the reserved seat at the trial. (at para 90) The courts will look at the nature of the subject on which the witness was not cross-examined on; the overall tenor of the cross-examination; and the overall conduct of the defendant. (at para 84) By confronting the witness through cross-examination on a substantive point after this witness has given evidence and confronting the witness with contradictory evidence through cross-examination, the witness can respond and be given an opportunity to give his/her version or have his/her credibility impeached through cross-examination. (at para 81)

[11] In R. v. Vorobiov 2018 ONCA 448, the Court of Appeal further indicated that the courts have sought over the years to 'clarify the rule's scope and application'. The court cited four clarifications which are taken into consideration: a witness need not be confronted with every scrap of contradictory evidence, but should be confronted on contradictory matters of substance the witness has not had an opportunity to explain; however, even on matters of substance, the witness need not be confronted with contradictory evidence if the witness's view on that contradictory evidence is already apparent; if the rule is breached, then depending on the circumstances and context, the trial judge has a range of options to rectify the breach; and a trial judge's determination whether the rule was breached, and if so the appropriate remedy, are entitled to substantial deference from an appellate court. (At para 42-43)

[12] The court in R. v. Croft 2018 ONSC 4942 again reiterated that a Browne v. Dunn violation should be the subject of a timely objection. (at para 19). The purpose of the rule is to 'remedy a true adversarial ambush and correct the ensuing unfairness' that only matters of substance can lead to (at para 22). It was suggested that two complimentary questions need to be asked to determine if there has been a Browne v. Dunn violation. First, it is correct to characterize the net effect of the alleged violation as a true 'ambush' and a surprise attack and; second, if the questions at issue had been put to the witness, is there any real uncertainty what the answer would have been. (at para 27)

Analysis

[13] It would appear that more often than not the rule in Browne v. Dunn arises and is invoked in situations where the defendant is unrepresented. This was the situation in our case.

[14] The court needs to ask itself a number of questions. First, is the evidence adduced by the defence contradictory evidence which relates to a matter of importance? Second, has the defence produced a witness or given evidence themselves that contradicts the evidence of a prosecution witness without first, giving that witness whose testimony is being questioned or impugned an opportunity to give their side of that story? Third, was the objection to this evidence raised at the proper time. Fourth, if we can answer yes to these questions, has there been a breach of the rule and if so what is the appropriate remedy?

[15] In the case at bar, the court needs to determine whether or not the evidence that the defendant tendered in his testimony, namely, the label/sticker from his vehicle that he was able to remove and affix to a clear plastic sheet is evidence that should have been put to the prosecution witness, Officer Brown so that he could have been cross examined with regard to that evidence: and in not doing so the defendant has deprived the court of the opportunity to properly weigh all the evidence.

[16] The court notes that Officer Brown gave specific evidence with regard to where the VIN was located on a Ford Focus vehicle, and whether it was located in one spot or more than one spot. He was cross-examined by the defendant on this point. Officer Brown specifically when asked by the defendant if the VIN label could be removed, stated that the label/sticker could not be removed. If there was any attempt to remove the label/sticker a portion would remain on the vehicle and the part that peels off would say void through it. The officer concluded that this is the case so that a label/sticker cannot be easily transferred from one vehicle to another as the label/sticker is rendered null and void. The defendant did cross-examine the prosecution witness on this point. It is as a result of this witness' testimony that the defendant when giving his evidence produced the label/sticker from his own Mercedes vehicle which had been removed by him and affixed in its entirety onto a clear plastic sheet and which did not have void written on it as the officer had indicated in his evidence would happen.

[17] Has the rule in Browne v. Dunn been breached? Should this label/sticker have been produced by the defendant at the time of his cross-examination of Officer Brown and shown to him? An argument may be made that the reason this label/sticker was produced when it was by the defendant, was as a direct result of the evidence given by the officer i.e. a label/sticker cannot be removed from one vehicle and transferred to another vehicle as it would render that label/sticker void. Clearly, the label/sticker produced by the defendant and the reason why it was produced, was as a direct result of the evidence given by the officer. It is a matter of importance and not trivial.

[18] The court has given the defendant much leeway with respect to the conduct of his defence. He was unrepresented at the time when he began to give his evidence. For this reason it may very well be that he did not know that he should have produced the label/sticker that he ultimately did produce when giving his evidence. Or is it that he could not have known that this evidence would be required to rebut the officer's evidence until the officer gave his evidence and the defendant then gave his own evidence in response to the officer's evidence. The defendant's evidence was not directed as an ambush and should not be characterized as such. However, does his evidence still violate the rule in Browne v. Dunn?

[19] The essence of the rule of Browne v. Dunn is that of fairness in procedure so that ultimately the court can be in the best position to ascertain which of the evidence presented to it is credible and trustworthy, which should be relied upon and to which should be given less weight. Officer Brown was present on the last court date when the prosecution raised the rule in Browne v. Dunn. The prosecution can in any event call rebuttal evidence and the officer was requested to be and was present in court specifically for that reason.

[20] Should the objection have come earlier and not on the last court date? The reason why the proceedings were put over from May 30, 2018 to October 3, 2018 was so that the defendant could obtain legal counsel and ensure that his witnesses could attend court as they went to the wrong address. The court finds that the prosecution bringing a Browne v. Dunn application at this juncture may be deemed appropriate. Certainly, it is not inappropriate. Given what transpired on May 30th, the prosecution did not have the opportunity to bring the application. The decision to have the officer available on the last court date can be construed by the court as the desire by both parties to have the officer present in the event that he would need to be recalled to either give further evidence or be cross examined on a relevant point. This is a situation where the line that has been drawn is indeed narrow.

[21] Given the two remedies typically applied by the courts, that is to: recall the officer or simply give the appropriate weight to the officer's evidence, the court, when looking at where we are in the trial proper, that the objection has been appropriately made and that the officer is available to be re-examined based on the evidence adduced by the defendant with regard to the label/sticker that according to the officer could not be removed from a vehicle but was removed from the defendant's vehicle, finds that the test when applying the rule in Browne v. Dunn has been met.

Disposition

[22] For the reasons set out above, the court finds that the proper remedy in applying the rule in Browne v. Dunn is to permit the officer to be recalled.

Dated the 21st day of November, 2018, at the City of Toronto

"J. Opalinski"

Joanna Opalinski J.P.