St. Catharines Court File No.: 1842/12

October 15, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HER MAJESTY THE QUEEN (respondent) v. WAYNE MCARTHUR (appellant/accused)

BEFORE: The Honourable Mr. Justice J.W. Quinn

APPEARANCES:
F. Fedorsen, for the appellant/accused
S.A. McCartan, for the Crown

HEARD: Friday, October 12, 2012,
at St. Catharines

ENDORSEMENT

Introduction

[ 1 ] The appellant, Wayne McArthur (“accused”), was convicted of assault in the Ontario Court of Justice. He appeals to this court on the sole ground that the learned trial judge erred in holding that the rule in Browne v. Dunn [1] was violated by the defence. The accused asks that the finding of guilt be overturned and a new trial ordered.

[ 2 ] However, it will be seen that a pre-emptive issue exists: Apart from being raised and considered, was the rule in Browne v. Dunn actually applied by the trial judge?

The evidence

[ 3 ] The accused and the complainant, Wendy Hudson (“complainant”), had some form of domestic relationship. In 2010, they purchased a residence in Grimsby, for which the accused provided the funds. He did not live in the residence, but the complainant moved in with her two children.

[ 4 ] The relationship appears to have lacked any redeeming features, although that is not my concern as this is not matrimonial litigation. They argued frequently, culminating in an incident on November 4, 2010. A neighbour, Angela Armstrong [“the neighbour”], witnessed part of the incident and testified at trial for the Crown.

[ 5 ] According to the trial judge, it is undisputed that: on November 4, 2010, an argument led to the accused “moving some household items into his truck,” which was parked in the driveway of the residence; the complainant “went into [the] truck looking for an Ipad, which she thought he was taking”; the accused “pulled her out of the truck and confronted her.” Thereafter, accounts of the incident diverge.

[ 6 ] In his Reasons for Judgment, the trial judge summarized the evidence of the complainant, the neighbour and the accused: [2]

[The complainant] testified that she was in the truck looking for her Ipad when [the accused] grabbed her from behind and pulled her out of the truck by the back of her pants. He then pushed her against the side of the truck, and restrained her there with his hand on her throat. His other hand continued to push her body back against the truck. The look on his face went to that of someone she had never seen before. He did not respond when she spoke to him, even when she said, ‘You’re hurting my throat.’ [The neighbour] was screaming at him as well. He suddenly stopped, spun her around and threw her onto the ground harder than she had ever hit the ground before. As she lay on the ground, he stepped over her and called her a stupid brat. He told the neighbour that it was over and that she slipped and fell. The neighbour replied, ‘No, you pushed her,’ she then came out and took [the complainant] first to the residence [of the accused/complainant] and then to the neighbour’s house.

[The accused] testified that the complainant was throwing things from the truck when he grabbed her to stop her from doing this. He grabbed the back of her pants and her belt to avoid hurting parts of her body where she was recovering from surgery. He turned to deal with something else and she went back into the truck after a television. He grabbed her by the waist and the back of her pants and pulled her out of the truck again. He was holding her tightly in his forearms as she was struggling, then the neighbour said, ‘What the hell is going on?’ He then relaxed his grip. [The complainant] bolted away from him, lost her balance going around the back of the truck. She almost caught herself but she fell. She had taken three or four steps to go to the back of the box of his truck and she was running. She slipped and fell as she tried to make a right hand turn at the back of the truck. He did not push her or grab her by the neck.

[The neighbour] also testified as a Crown witness. She said that she lived next door. She heard a lot of yelling and looked out. She saw [the complainant] up against the truck, her hair was flying around. [The accused] was right up against her with his hands near her neck. [The complainant] was saying, ‘Wayne, stop, you’re hurting me.’ [The neighbour] called out, ‘Wendy, are you all right? Wayne what’s happening?’ [The accused] appeared to see [the neighbour], he pushed [the complainant] violently to the ground. [The neighbour] again called out, ‘Wendy, are you all right, do you need a doctor? I’m coming over.’ [The accused] replied ‘She slipped,’ and, ‘This is over.’ After that, [the neighbour] observed that [the complainant]’s throat was red. She was crying and very much afraid. She did not want to call police. [The neighbour] made the call.

[ 7 ] Thereafter, the trial judge, in his Reasons for Judgment, identified the issue in the case as one of credibility, addressed his mind to the law on credibility and on reasonable doubt and concluded that he did not believe the accused, “nor did his evidence leave me with a reasonable doubt.”

[ 8 ] The trial judge found the complainant to be credible and “a significant reason for this is that her evidence was corroborated to a large extent by [the neighbour].”

Ground of Appeal

the testimony that led to the consideration of Browne v. Dunn

[ 9 ] The trial judge identified three differences between the evidence of the accused and of the Crown witnesses upon which the latter, he felt, were not cross-examined and, accordingly, His Honour raised the rule in Browne v. Dunn : [3]

[The complainant] should have been able to see if all four doors of the truck were open. She was not asked about this possibility. She testified that she saw ‘The door open,’ suggesting that she saw one door open only. [The complainant] referred to opening one door. She testified that she did not get the back door open. The question of whether all four doors were ever open was never put to either of the two Crown witnesses. It only became an issue when [the accused] later testified that all four doors were open.

Similarly, [the neighbour] should have been able to see if [the complainant] ran three or four steps from beside the cab of the truck to the back of the truck and slip as she tried to make a right hand turn at the back of the truck. Neither [the neighbour] nor [the complainant] was asked if that had happened. Both described something very different, that being that [the accused] threw [the complainant] to the ground beside the cab of the truck. The running and slipping scenario was first raised by [the accused] during his testimony.

Finally, whatever the lighting, had [the neighbour] been outside at the relevant time, she should have been able to see if [the accused] drove off at some point and then returned again. Both events happened prior to the incident by the truck. Again, however, she was not asked if she saw this. Neither was [the complainant] asked. Neither mentioned this in their evidence. Again, this was something that was first raised by [the accused] during his evidence.

position of defence

[ 10 ] Mr. Fedorsen, for the accused, [4] argues that the rule in Browne v. Dunn was applied incorrectly by the trial judge and, in any event, it should not have been applied at all.

[ 11 ] It is submitted that “any lack of cross-examination of the Crown witnesses on specific details of the [accused’s] later testimony did not violate the rule in Browne v. Dunn. Both Crown witnesses were thoroughly cross-examined . . . and . . . the cross-examination conducted was sufficient to put the witnesses on notice, and any more detailed cross-examination would have amounted to ‘slog[g]ing through [the] witness’s evidence-in-chief.’ ” [5] Moreover, “not every detail needs to be put to the witness. Not every fact which is not accepted needs to be the subject of a question.” The defence further argues that, if there was a violation of the rule, “the appropriate remedy would have been to recall the witnesses so that those specific details could have been posed to them.”

position of Crown

[ 12 ] Ms. McCartan, on behalf of the Crown, submits that the three points indentified by the trial judge represent discrete disputed facts which should have been put to the complainant and to the neighbour in cross-examination.

[ 13 ] It is also submitted that the trial judge cautioned himself against holding the accused responsible for “a tactical decision or mere oversight” of defence counsel and that “nowhere in his decision did he indicate that [violation of the rule in Browne v. Dunn ] played a factor in coming to a conviction.”

[ 14 ] Finally, the Crown submits that, apart from consideration of Browne v. Dunn , the trial judge gave clear and ample reasons for believing the testimony of the complainant and the neighbour and disbelieving the accused (including the fact that the evidence of the accused did not explain the red marks around the neck of the complainant).

review of rule by trial judge

[ 15 ] In his analysis of the rule in Browne v. Dunn , the trial judge states: [6]

These issues that were not put to the Crown witnesses caused me concern that [the accused] and his counsel have failed to comply with the rule in Browne v. Dunn , (1893) 1893 65 (FOREP) , 6 R. 67, (H.L.). 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 a chance to address the contradictory evidence in cross-examination while she is in the witness box. See R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.), at page 141.

In R. v. Verney (1997), 87 C.C.C. (3d) 363 (Ont. C.A.), at page 376, Finlayson, J.A., outlined the purpose and the rule as follows:

Brown v. Dunn is a rule of fairness that prevents the ambush of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness’s evidence in-chief putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness.

[ 16 ] The trial judge continued: [7]

In R. v. McNeill , 2000 4897 (ON CA) , [2000] O.J. No. 1357 (Ont. C.A.), Moldaver, J.A., suggested, in paragraphs 47 through 50, certain options available to a party who feels aggrieved by the failure of her opponent to comply with the rule.

One of these options is, for me as trier of fact to, in assessing the weight to be given to the uncontradicted evidence, properly take into account the fact that the opposing witness was not questioned about it. I may also take this into account in assessing the credibility of the opposing witness. So, I instruct myself that, in assessing the weight to be given to uncontradicted defence evidence, I may properly take into account the fact that the Crown witnesses were not questioned about it and that I may take this into account in assessing the credibility of those Crown witnesses.

Discussion

[ 17 ] The defence, by way of factum and in oral argument, thoroughly reviewed the three areas addressed by the trial judge, the testimony of the witnesses and the questions put to them in cross-examination. As well, I was provided with all of the case law germane to the rule in Browne v. Dunn . Certainly, in the context of a criminal case, the application of the rule is a minefield. Yet, as I see the matter, the question of whether the rule and the available remedies for a violation were correctly identified by the trial judge, is moot. I say this because I do not think that the trial judge actually applied the rule. He raised and considered the rule, but, in the end, he did not apply it. I reach this conclusion after taking the Reasons for Judgment as a whole and on the basis of this crucial passage, which followed the trial judge’s review of the rule and of the evidence: [8]

However, I also instruct myself that [the accused] ‘should not be held responsible for what may have been a tactical decision or a mere oversight on the part of his counsel,’ and for that I refer to McNeill , supra, at paragraph 53 and Henderson , supra, at paragraph 19 .

[ 18 ] Mr. Fedorsen makes the argument that the trial judge does not expressly say that he is going to follow this particular self-instruction. While this is true, I cannot accept the submission that, after stating that the accused should not be held responsible for the decisions or oversight of counsel, the trial judge would act contrary to his self-instruction.

[ 19 ] I think that on a full and fair reading of the Reasons for Judgment, it may be said that the trial judge was concerned about the rule in Browne v. Dunn , gave serious thought to the matter, considered the governing case law but, in the end, it may be inferred that he heeded his self-instruction and did not apply the rule.

Conclusion

[ 20 ] Despite the very able argument of Mr. Fedorsen, the appeal must be dismissed.

[ 21 ] I thank both sides for their most helpful facta.

The Honourable Mr. Justice J.W. Quinn

RELEASED: October 15, 2012

COURT FILE NO.: 1842/12

DATE: October 15, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent - and - WAYNE McARTHUR Appellant/Accused REASONS FOR JUDGMENT J.W. Quinn J.

Released: October 15, 2012

[1] (1893), 6 R. 67 (H.L.)

[2] Transcript of proceedings on February 16, 2012 (“Transcript”), p. 2, l. 4 – p. 3, l. 29.

[3] Transcript, p. 6, l. 14 – p. 7, l. 12.

[4] Mr. Fedorsen was not counsel at trial.

[5] This is a reference to R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at para. 28 , where, while discussing the rule in Browne v. Dunn , Finlayson J.A. states: “. . . counsel must not feel obliged to slog through a witness’s evidence-in-chief putting him on notice of every detail that the defence does not accept.”

[6] Transcript, p. 7, l. 14 – p. 8, l. 9.

[7] Transcript, p. 8, l. 10 – l. 29.

[8] Transcript, p. 8, l. 30.