COURT FILE NO.: 08-R1986

DATE: 2014/12/18

PUBLICATION BAN IN EFFECT UNDER S. 486.5(1) IN REGARD TO A CHILD WITNESS

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D. A.

Accused

Julie Scott, for the Crown

Oliver Abergel and Howard Krongold, for the Accused

HEARD: December 8, 2014

reasons for RULING ON BROWNE V. DUNN

aitken J.

Defence Concern and Request

[1] During the second pre-charge conference on Friday, December 5, 2014, Defence counsel, for the first time, suggested that Crown counsel had breached the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) by not putting specific questions to the accused, D. A., during his cross-examination on December 2, 2014. Defence and Crown counsel provided me with written submissions on this point on Sunday, December 7. The issue was argued on Monday, December 8 at the third pre-charge conference. All pre-charge conferences occurred prior to closing addresses.

[2] Due to the urgency of responding to this submission, on December 9, 2014, I advised counsel by email, as follows: “I do not accept the submissions of Defence counsel that there is a major Browne v. Dunn issue in this case requiring the type of draft instruction to the jury that was included in the Defence submissions.” The instruction to the jury requested by Defence counsel was the following:

I want to make some very important comments about the Crown’s failure to cross-examine Mr. A. about some critical parts of his evidence.

In a trial it is a basic rule of fairness that, if you are going to challenge a witness’s evidence on an important point, you must cross-examine that witness about it and give the witness a chance to respond.

We often see in the courts that a witness will, when challenged in cross-examination, provide an explanation or response that adds to their credibility. Sometimes the answer a witness gives in response to being challenged will provide extra detail or have a ring of truth that enhances the credibility of their evidence. Sometimes the way in which they answer the question tends to support their truthfulness.

In this case, there has been a serious breach of this rule in the cross-examination of Mr. A. During Mr. A.’s testimony, the following aspects of Mr. A.’s testimony were not challenged:

L. A. physically attacked him without provocation.

In doing so, L. A. injured his penis.

Mr. A. never put his hand on L. A.’s mouth in an effort to obstruct her breathing or stop her from speaking.

Mr. A. got off L. immediately after she agreed to stop fighting.

L. A. died while on her stomach, after being straddled by Mr. A., but was alive after he got off of her.

Mr. A. used appropriate and minimal force to restrain her.

Mr. A. restrained L. A. for the purpose of defending himself.

Mr. A. never intended to hurt L. A., much less to kill her.

His explanations for his after-the-fact conduct, except his failure to call 911, were not challenged.

These areas are obviously very important to his testimony and to your determination about whether or not he is guilty of any offence.

As a result of the fact that Mr. A. was not challenged on these points, you have been deprived the opportunity to hear his responses on these points. I can tell you that, especially for an accused person, this is a very serious breach of the rules.

I therefore direct you that, because Crown counsel did not challenge Mr. A.’s evidence about these areas during cross-examination, in assessing the weight to give to Mr. A.’s evidence, you may properly take into account the fact that he was not given the opportunity to respond to the Crown’s accusations in his evidence. You may conclude that the reason the Crown did not challenge Mr. A. on these points is because his answers were likely to be damaging to the Crown’s case, and that, had he been challenged, his answers may have added to his credibility and the cogency of his testimony. Lawyers are allowed to make a tactical decision not to cross-examine a witness, but you are entitled to find that the Crown did not to pursue these questions with Mr. A. because of the concern that the answers may have hurt the prosecution's case and enhanced Mr. A.’s credibility.

Accordingly, you may find that, because Mr. A. was denied a chance to respond to the Crown’s specific allegations directly, you should give his evidence more credence, and rely on it more. Because Mr. A. is the accused and has testified in his own defence, it would be open to you find that the fact that his evidence was not challenged on these points is, standing on its own, reason enough to leave you in reasonable doubt about his guilt and to find him not guilty.

[3] Since the Defence raised its concerns, and I ruled that, at that time, I was not prepared to instruct the jury in the fashion requested by Defence counsel, I have also had the benefit of the closing addresses of both Crown and Defence counsel.

Rule in Browne v. Dunn

[4] The rule in Browne v. Dunn was described by Doherty J.A. in R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22, as follows:

Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case … [authorities not included]

[5] The rule has also been extended to situations where counsel challenges a witness’s evidence for the first time in closing argument, without having first put the challenge to the witness during cross-examination (R. v. McCarroll, 2008 ONCA 715, 238 C.C.C. (3d) 404, at paras. 105-113). In McCarroll, Crown counsel in his closing address to the jury raised the question of whether a key defence witness had a motive to lie, without having cross-examined the witness in question about the existence of any such motive. There was no evidence before the jury relating to any such motive. Not only was the witness never afforded the opportunity to address the allegation, but the Defence was ambushed and had no way of counteracting this suggestion.

[6] There are a number of reasons for the rule in Browne v. Dunn: (1) to ensure fairness to the witness, so that he or she can address any challenges to his or her evidence before it is subsequently contradicted or undermined by other witnesses; (2) to ensure trial fairness by avoiding ambushes; and (3) to assist the trier of fact in the fact-finding process by ensuring that the trier of fact hears both sides of significant facts in dispute (see R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (C.A.); R. v. Henderson (1999), 44 O.R. (3d) 629 (C.A.); and R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226).

[7] In assessing whether there has been a violation of the rule in Browne v. Dunn, the court should consider many factors, the following being a list provided in R. v. Dexter, at para. 20:

• 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.

Context

[8] The context in which this issue arose in this case is the following.

[9] This is a retrial. At the first trial, Mr. A. was found guilty of the second-degree murder of his wife. His conviction was based, to a significant extent, on the evidence of his daughter, N., who was present when a struggle between her parents ended in her mother’s death. N. was eight at the time, and was ten when she testified at the first trial. She is now 14, and was again called upon to testify at this trial. At both trials, a videotaped interview that N. had with Sergeant Patrick, when she was nine years old, was made part of her examination-in- chief under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. The focus of the cross-examination of N. at this trial was the unreliability of her evidence, due to frailties relating to her memory and, more specifically, when she remembered things, how she remembered things, and inconsistencies over time in what she remembered.

[10] Mr. A. testified at both trials. At this trial, the crux of his evidence in chief was that he tried to intervene in a conversation that his wife was having with his daughter about an up-coming family assessment. His wife attacked him physically, injuring his penis. In a reactive movement, he pushed her to the ground. His wife got up and scratched his lip. He pushed her to the ground again and sat on her legs, hips, and stomach. His wife scratched his face, neck, chest, and torso, and fought to get him off of her. He tried to restrain her arms so that she could not injure him. Eventually, she kicked him off and he fell back against the TV, knocking it off its stand. His wife got up and came towards him. He tackled her to the ground and again straddled her. Although she may have started on her back, he quickly rolled her over onto her stomach and succeeded in restraining her by holding her arms behind her back. He kept telling her to stop fighting. Eventually, she agreed that she would. He dropped her arms and was getting off her. She was alive at the time. He took his eyes off her momentarily and, when he looked back, she was dead.

[11] When this happened, Mr. A. and his wife had been living separate and apart for two months, after Ms. L-A. had announced that she wanted a separation, and Mr. A. had learned that she had been having an affair for the last 13 years of their marriage with a man whom she repeatedly had denied maintaining contact with. Custody of their two children was in issue. Mr. A. had commenced litigation. The environment in the family’s two-bedroom apartment was very tense, but neither parent would move out and jeopardize their custody claim.

Crown Counsel`s Opening Statement

[12] In her opening statement, Crown counsel focused on the couple’s separation, the custody dispute, Ms. L-A.’s affair, Mr. A.’s deteriorating state in the week prior to Ms. L-A.’s death, Ms. L-A.’s positive attitude about the future, the physical altercation between Mr. A. and Ms. L-A. on Sunday morning, June 8, 2008, in the presence of N. and her young brother, and the death of Ms. L-A. at the end of that struggle.

[13] In the face of the indictment charging Mr. A. with second-degree murder, it was clear that the Crown was taking the position that Ms. L-A.’s death was not the result of Mr. A. acting in self-defence, and was not the result of an accident. Crown counsel also advised that N. would be testifying, and counsel had agreed in advance of the trial that her videotaped statement to Sergeant Patrick from June 25, 2009 would become part of her examination-in-chief. In that statement, N. described how, when her father was sitting on her mother, and her mother was lying on her back on the floor, her father had covered her mother’s mouth with his hand. Shortly after that, her mother was dead.

Crown’s Case

[14] The Crown called numerous witnesses to set out the history of the A.’s marital breakdown, how each parent was handling it in the home and with others, the intensifying nature of the custody dispute, and the hopes and fears of each parent leading up to the weekend of Ms. L-A.’s death. Dr. Michael Pollanen, a forensic pathologist, provided his opinion that the cause of Ms. L-A.’s death was unascertained. It could have resulted from asphyxiation through smothering, or through pressure being applied to her chest so as to impede her ability to breath. As well, asphyxiation could have occurred as a result of these two mechanisms operating together. Another possibility was that Ms. L-A.’s death could have resulted from an arrhythmia brought on by the physical and emotional stress associated with the struggle against the backdrop of an underlying and undiagnosed genetic predisposition or heart abnormality that was not apparent on autopsy.

[15] N.’s evidence was that on the Sunday morning, when her mother died, her parents had been arguing loudly about money, with her mother accusing her father of taking her money. The argument turned into a physical fight, with her parents pushing each other on to the floor and then hitting, kicking, and punching each other. Her father was straddling her mother, and her mother was lying on her back. Her mother scratched her father’s penis and his face while she was lying on her back. She told N. to go to the neighbours to ask for help and to call the police, but N. was too shy to do that. When her mother asked her to call the police, her father covered her mouth and said: “No, no, no.” Shortly after that, her mother died. N. and her brother were in the living room during the entire fight, sitting on the couch, watching TV.

Discrete Differences in the Evidence of Mr. A. and N.

[16] The broad brush of N.’s version of the struggle was very similar to the broad brush of Mr. A.’s version of the struggle. But there were several discrete differences, some more significant than others.

1. N. said that her parents had been arguing about money prior to the physical struggle. Mr. A. said that he intervened to stop Ms. L-A. from talking to N. about the upcoming family assessment.

2. N. said that her mother scratched Mr. A.’s penis and his face when Mr. A. was sitting on top of her mother and her mother was lying on her back on the floor. Mr. A. said that Ms. L-A. lunged at his groin and injured his penis when he was trying to prevent her from talking to N. about the assessment. After he pushed Ms. L-A. to the ground as an immediate reaction to the pain in his groin, she got up and scratched his lip.

3. N. said that it was when both of her parents were still standing and pushing each other around that the TV was knocked off the stand. Mr. A. said that it was when Ms. L-A. kicked him off of her that he fell into the TV and knocked it off the stand.

4. Both N. and Mr. A. testified that, when Mr. A. was sitting on Ms. L-A. on the floor, Ms. L-A. told N. to call the police. N. said that her father put his hand over her mother’s mouth and nose at that point and had said: “No, no, no.” Mr. A.’s evidence was that he said to N.: “No, no, use the other phone,” because he saw her trying to use the portable phone, knew that she did not know how to use it, and was trying to get her to use the landline in the bedroom.”

5. N. told Sergeant Patrick that Mr. A. put his hand over her mother’s mouth when he was straddling her on the floor. When testifying, N. said that her father put his hand over her mother’s mouth and nose. In examination-in-chief, Mr. A. denied that he ever put his hand over Ms. L-A.’s mouth or nose at any time during the struggle.

6. N. testified that her mother died when she was on her back on the floor. Mr. A. testified that Ms. L-A. died when she was on her front.

[15] Mr. A.’s version of events in regard to the first, second, and fourth discrete differences was not put to N. on cross-examination for her to comment on. It should have been. That it was not was a violation of Browne v. Dunn, but one about which the Crown did not raise an objection. In regard to the third point, N. was cross-examined as to when the TV was knocked off the stand. She said that it was possible that it had been knocked down when her parents were struggling on the floor, rather than when they were standing, but she did not recall the events that way. In regard to the fifth, and most significant, point of difference, it was never specifically suggested to N. that she was mistaken when she said that her father had covered her mother’s mouth and nose with his hand. Instead, N.’s evidence was challenged in more general ways relating to when and how N. remembered this point, and her changing her mind over time as to whether her father’s hand was over her mother’s nose as well as mouth. In regard to the sixth point of difference, also important, N. was cross-examined as to what she remembered, and questions were put to her about the position of her mother’s body when the first responders arrived; however, it was never specifically put to her that she was mistaken when she said that she observed her mother being on her back when she died.

[16] Although there were significant violations of the rule in Browne v. Dunn by the Defence, Crown counsel did not seek any redress.

Specific Issues Raised by the Defence

[17] Defence counsel argued that the Crown’s failure to cross-examine Mr. A. on certain specific points was highly prejudicial because it meant that the Defence did not know the Crown’s theory of liability. Crown counsel responded that there was no violation of the rule in Browne v. Dunn because: (1) the Defence had heard the entirety of the Crown’s evidence before Mr. A. testified; (2) Crown counsel outlined the theory of the Crown’s case in her opening address to the jury; (3) Mr. A. had the opportunity in his examination-in-chief to contradict the evidence of the Crown’s witnesses and to explain any discrepancies between his evidence and N.’s evidence; and (4) Crown counsel had, in fact, cross-examined Mr. A. on a number of the points of concern to Defence counsel. Defence counsel listed the following specific points on which, he argued, Mr. A. was not cross-examined:

1. It was not suggested that Mr. A. was untruthful about how the fight started and who started it.

[18] Crown counsel did not cross-examine Mr. A. specifically on this point, even though N. had testified that her parents had been fighting about money when the fight started and Mr. A. said that he was trying to intervene in a conversation Ms. L-A. was having with N. about the family assessment. In her closing address, Crown counsel adopted the version Mr. A. gave. The only Browne v. Dunn issue that arises is that Defence counsel did not cross-examine N. regarding the nature of the argument that preceded the fight before tendering the contradictory evidence of Mr. A., but Crown counsel made no objection.

2. It was not suggested that Mr. A. was being untruthful when he said that Ms. L-A. attacked his penis while he was standing by the couch.

[19] At the commencement of her cross-examination of Mr. A., Crown counsel attempted to cross-examine Mr. A. about when the injury to his penis started to bleed. Numerous objections were raised to the wording of her questions, and Crown counsel moved on to another area. In her closing address, Crown counsel accepted Mr. A.’s chronology of events, including his assertion that Ms. L-A. had injured his penis when he was standing near her and N., prior to any other physical altercation starting. The only Browne v. Dunn issue that arises is that Defence counsel did not cross-examine N. regarding her assertion that her mother had scratched her father’s penis when he was sitting on top of her on the floor and she was lying on her back. That should have been done before Defence counsel tendered in evidence Mr. A.’s version of when his penis was injured. Again, Crown counsel did not seek any redress.

3. It was not suggested to Mr. A. that, when Ms. L-A. was on her back on the floor, he put his hand on her mouth or did anything to obstruct her breathing.

4. Mr. A.’s description of the “third stage” of the fight was not challenged and, more specifically, it was never suggested to Mr. A. that he did not immediately get off Ms. L-A. when she said she would stop fighting, or that she never said that.

[20] In regard to the issues of Mr. A. putting his hand on Ms. A.’s mouth in an effort to obstruct her breathing or to stop her from speaking, exactly at what point he got off of her, and at what point she died, the Crown did challenge Mr. A. on his evidence at pp. 132 ff. of the transcript. She specifically put to him that, what N. said about his covering Ms. L-A.’s mouth with his hand, was accurate. Mr. A.’s own answers, particularly at the bottom of p. 133 and the top of p. 134, show that he understood that he was being accused of intentionally suffocating or smothering Ms. A., and he denied doing any such thing or having any such intention.

5. Mr. A. was never challenged on whether the force he applied was excessive.

[21] Although Mr. A. was not specifically asked whether the force he applied to Ms. L-A. was excessive, he was cross-examined as to whether he covered her mouth with his hand and as to whether he was sitting high up on her back (potentially two examples of excessive force). In any event, the jury must determine whether, from an objective standard, the force that Mr. A. applied was reasonable and not excessive.

6. It was not suggested to Mr. A. that he applied force to Ms. L-A. for a purpose other than to defend himself.

[21] Again, although Crown counsel did not say specifically to Mr. A. that he had applied force to Ms. L-A. for a purpose other than to defend himself, that was easily implied from the questions that were put to him about: (1) the simmering situation in the apartment boiling out of control after service of his pleadings in the family litigation; (2) his acting out of anger; (3) his not being afraid of Ms. L-A. during their physical encounter; (4) his trying to be in control in regard to their separation; (5) him being the one who was on top throughout the entire physical altercation; and (6) his being glad when Ms. L-A. died. Defence counsel had already gone over this issue with Mr. A. extensively during examination-in-chief. No Browne v. Dunn issue arose.

7. It was not suggested to Mr. A. that he ever had the mens rea for murder.

[22] Again, although this question was not specifically put to Mr. A., and although it would have been preferable had it been put to him directly, this accusation was inherent in the charge of second-degree murder, and it was implied in all of the questions put to Mr. A. regarding his motives and what he did to Ms. L-A. during the struggle. Mr. A. understood that this was a question being put to him. He understood that the accusation was that he had intentionally smothered Ms. L-A. and, under cross-examination, he denied that it had ever been his intention to do so. He had already denied this vehemently during his examination-in-chief. No Browne v. Dunn issue arose.

8. Mr. A. was not challenged on his explanation for the after-the-fact conduct, aside from his failure to call 911.

[23] Mr. A. was cross-examined about not performing CPR on Ms. L-A., not immediately calling 911, laying out his bloody underwear in the bathroom for the police to see, giving the children Christmas presents, telling N. that he would be going away for a long time, calling his brother and lawyer before calling 911, and delaying calling 911 so that he could figure out what to say to the police. No Browne v. Dunn issue arose.

Conclusion

[24] No redress is required for any violation of Browne v. Dunn on the part of the Crown. In no way was Mr. A. unfairly treated. He knew the entirety of the Crown’s case prior to testifying. In fact, he had heard verbatim the essence of N.’s testimony prior to trial, due to the planned use of her videotaped statement to Sergeant Patrick that all counsel agreed was properly admissible under s. 715.1 of the Criminal Code. Mr. A. had full opportunity to provide his version of events – including all of the ways in which it differed from N.’s evidence – when he was testifying in chief. He was afforded this opportunity even though N. had not specifically been cross-examined on discrete differences between her version of events and Mr. A.’s version of events. Mr. A. was cross-examined on those aspects of his evidence that Crown counsel wanted to challenge in her closing address. In that address, she stuck to those areas and did not challenge Mr. A. on aspects of his evidence about which she had not challenged him during cross-examination. The Defence was not ambushed in any respect. No unfairness was done to Mr. A. The only unfairness that occurred as a result of a violation of Browne v. Dunn was that N. was not asked about the specific ways in which Mr. A.’s account of the events of June 8, 2008 differed from her own.

[25] For these reasons, the application by the Defence for redress under the principles of Browne v. Dunn was denied.

Aitken J.

Released: December 18, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D. A.

Accused

reasons for RULING ON BROWNE V. DUNN

Aitken J.

Released: December 18, 2014