COURT FILE NO.: 15-3517 DATE: 2018/07/30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown J. Levy, on behalf of the Crown

- and -

ADEEL SAFDAR Accused D. Paquette and L. Wilhelm, for Adeel Safdar

- and –

SHAHEEN SAFDAR Accused N. Hasan, for Shaheen Safdar

-and-

AATIF SAFDAR Accused

HEARD: June 29, 2018 A.J. Goodman J.:

Mid-Trial Written Ruling - Browne and Dunn Application

[1] At the conclusion of the defence evidence, the Crown attorney sought a ruling with respect to numerous alleged violations of the rule in Browne and Dunn, (1893), 6 R. 67 (H.L.), (“the rule”) along with the appropriate relief.

[2] The narrow issue before me is whether there were such violations of the rule resulting from the evidence presented during the defence case, which was not put to the complainant, Sara Salim (“Sara”), or other Crown witnesses in cross-examination. If so, what is the appropriate remedy?

[3] After hearing submissions from the parties, I concluded that there were four instances where the Crown had established a violation of the rule in Browne and Dunn. The Crown was offered the appropriate remedy to recall the complainant. I advised the parties that written reasons would follow. These are my Reasons.

Background

[4] This has been a protracted and hard-fought trial, commencing in September 2017 and continuing into - and likely beyond - August of 2018. During the early stages of the defence case, Mr. Paquette, alerted the Court and the Crown attorney to the potential for a Browne and Dunn issue arising from testimony that had been presented during the course of his client’s case, and other evidence that counsel anticipated would be forthcoming.

[5] Similarly, during the course of the defence evidence, Mr. Levy raised certain timely objections regarding potential violations of the rule. Quite properly, he alerted the court and the defence of his intention to raise the issue and his intention to seek the appropriate relief for the alleged violations of the rule. It was understood that this issue would be addressed at the conclusion of the defence case.

[6] In presenting his argument, Mr. Levy, prepared a helpful chart and identified 16 alleged violations on which the defence had adduced evidence but had not cross-examined Crown witness on the same subject. (Appendix “A”).

[7] Defence counsel, Mr. Hasan and Ms. Wilhelm, opposed a Browne v. Dunn self-instruction. First, they pointed to the extensive cross-examination of each of the witnesses, in particular the complainant, which reflected the defence's trial strategy to vehemently attack every aspect of Sara’s credibility in order to demonstrate that her evidence simply should not be believed. As a result, it is submitted that the complainant could not have been ambushed by the attack on her credibility and the reliability of her evidence by the evidence presented during the defence case, and hence, the rule was not engaged.

Legal Principles

[8] 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] O.J. No. 1216, 134 C.C.C. (3d) 131 (C.A.), at p. 141 C.C.C.; and R. v. McNeill, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.), at para. 44.

[9] The rule in Browne v. Dunn, as it has come to be known, reflects a procedure for confrontation in the context of cross-examination of a witness for a party opposed in interest on disputed factual and substantial issues.

[10] In the case of R. v. Quansah, 2015 ONCA 237, [2015] O.J. No. 1774, the Ontario Court of Appeal had occasion to opine on the rule. Watt J.A. held that the rule is rooted in fairness. At paras. 77, Watt J.A. stated:

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;

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

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

[11] At para. 78, the court acknowledged that the trial process is also an important consideration:

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.

[12] Commenting on the general principles regarding the rule, Watt J.A. held at paras. 79-80:

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.

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.

[13] A helpful guidance to trial judges was offered by Watt J.A. at para 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;

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

the overall tenor of the cross-examination; and

the overall conduct of the defence.

[14] In R. v. Podolski, 2018 BCCA 96 at para. 160, the court re-emphasized the gist of the rule and stated:

A party who intends to challenge the credibility of a witness, whether by calling contradictory evidence or simply as part of closing submissions to the fact finder, should generally provide the witness with an opportunity to address or explain the point upon which credibility is attacked. Simply put, the witness should be confronted in cross-examination with any material point on which his or her credibility is to be challenged. A failure to do so may detract from the strength of the party's case or entitle the party who called the witness to a remedy. It is trite law that the absence of contradiction of matters of little significance in the conduct of the case or of critical issues of fact, which does not advance the case, has little impact on credibility. However, 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 greater impact on the weight of an accused's credibility: Paris, at para. 23.

[15] In R. v. Vorobiov 2018 ONCA 448, the Ontario Court of Appeal had a further occasion to reiterate the relevant principles as it relates to findings of credibility. The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross-examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused's credibility. However, where a central feature of the complainant's evidence is left untouched in cross-examination or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused's credibility.

Discussion

Were there breaches of the rule in Browne and Dunn? Did the defence fail to confront witnesses so as to engage the rule?

[16] It is settled law that there is much discretion vested in trial judges in dealing with the rule. As the Court of Appeal observed in Quansah at paras. 89-90:

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: 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.

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.

[17] I agree with defence counsel that the jurisprudence clearly establishes that 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.

[18] What is crucial in deciding whether there was a breach of the rule is where the cross-examination confronts 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; 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.); Paris, at para. 22.

[19] Indeed, the application of the rule does not require the cross-examiner to “slog through a witnesses’ evidence - in - chief putting him on notice of every detail the defence does not accept: Verney, at para. 28. A witness 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' view on that contradictory evidence is already apparent.

[20] Here, the defence says that Sara was in the witness box for many weeks and was subjected to extremely thorough cross-examination. Defence counsel thoroughly cross-examined all Crown witnesses on issues related to their evidence and going to their ultimate reliability.

[21] The defence submits that the complainant could not have been caught by surprise by the defences' theories of the case by questions posed to her. The cross-examinations clearly and plainly put the witnesses on notice that their versions of events were being challenged and their credibility impeached. Defence counsel adds that they intend to argue that Sara is not worthy of credit and her testimony generally should not be believed.

[22] The rule in Browne v. Dunn does not require counsel to engage in useless or prolix cross-examination. Indeed, in many cases generally challenging a witness' credibility and reliability will suffice. But it will not always be so.

[23] The rule in Browne v. Dunn is rooted in fairness and is not fixed -- whether it is engaged will depend on the circumstances of the particular case: R. v. Lyttle, 2004 SCC 5 at para. 65.

[24] The general rule is that counsel must confront a witness with any new material he or she intends to adduce or rely on after the witness has left the box. However, the rule does not go so far as to require counsel to ask contradicting questions about straightforward matters of fact on which the witness has already given evidence that he or she is very unlikely to change.

[25] Most, if not all of Sara’s responses were a continual denial to the plethora of propositions put to her in cross-examination by defence counsel. As she is entitled to do, Sara took a diametrically opposed position with respect to the defence theory of the case.

[26] As mentioned, the defence theory was that the incidents never occurred and the injuries sustained by Sara were self-inflicted. Clearly, the breadth and detail of the cross-examinations conducted by defence counsel was extraordinary. It would have been clear to Sara and other Crown witnesses as they were being cross-examined that both their truthfulness and their reliability were being called into question and their stories challenged generally. It is clear to me that where the witness' view on the contradictory matter is apparent, there is essentially no need for confrontation and no unfairness to the witness in any failure to do so.

[27] Generally, I tend to agree with the position advanced by Mr. Hasan. Given the general thrust and tenor of the cross-examination, the failure to cross-examine on specific points in a witness' testimony was insignificant and did not trigger the application of the rule. Moreover, it would have been a pointless exercise to slog through every point of Sara’s evidence when the entire focus of defence questioning was an attack on her credibility. Otherwise, what would ensue would be a requirement that counsel engage in protracted and useless cross-examination and would result in longer trials.

[28] Although it was clear in the present case that the defence intended to impeach Sara and the principal Crown witnesses’ credibility and reliability, it still remains whether the rule was engaged nonetheless when a witness was not confronted on a particular significant aspect of their evidence.

[29] Whether the rule in Browne v. Dunn is engaged will depend on the circumstances of the particular case. During this lengthy trial, defence counsel chose to cross-examine the complainant extensively but also chose to leave some points unchallenged. While I find that much of the areas sought to be challenged by the Crown do not arise to a violation of the rule, I now turn to the specific matters in question that are found in Appendix “A”.

[30] I conclude that the following points of evidence as outlined in Appendix “B” did not give rise to a violation of the rule. In reference to Appendix “B”, I am not persuaded that the line of impugned questioning addressed matters that were not substantial or significant to the issue to be decided. The evidence merely addressed details or collateral facts.

[31] Similarly, I conclude that the following areas as listed in Appendix “C” did not give rise to a violation of the rule. In essence, during the course of Sara’s lengthy testimony, questions were posed by defence counsel to the witness that either covered off, or were generally addressed by the context of the question, or were otherwise suggested to the witness in relation to the issues advanced by the Crown. While it is true that the exact language employed in questioning of Sara did not mirror the issues complained of, it is clear to me that the essence of the subject matter found in Appendix “C” was generally canvassed and was all but denied by the witness throughout her evidence in cross-examination. For example, Sara repeatedly denied having access to a phone in the Safdar home. Thus, any question of a floater phone can be considered as mere details. In this respect, I do not find a breach of the rule. [^1]

[32] However, as I detailed in my oral ruling, there were four areas of questioning arising from Adeel Safdar’s (“Adeel”) evidence where there was a violation of the rule in Browne and Dunn. None of these particular questions were posed to Sara in cross-examination. The subject matter of those questions are considerably more substantial to the issues in this litigation, specifically, the credibility of the principal witnesses. Specifically, these four areas of questioning are:

A) Sara parents’ had the marriage certificate and other documents but wouldn’t give it (sic) to them. If they wanted the documents, they would have to move to Rochester.

B) Adeel states Sara is well aware he had McMaster job and they were moving to Canada. So in August, I had a chat with advisor- Tarnopolsky but importantly in Harvard- we decided I would wrap up projects and would cut fellowship short from here and move to McMaster- already a great thing going and Sara was well-aware he would be leaving his job in September.

C) Text messages from Google voice (Exhibit 64). She was sending text messages to him from the doctor’s office.

D) How was Sara’s behaviour through March? Sometimes the thing that was really bothering was that sometimes she would go by herself and sometimes take Ayat but would forget all of Ayat’s stuff at home. I would have to call and ask where she was and I would have to go back.

The Remedy

[33] Having agreed with the Crown in that there were four areas that tended to breach the rule in Browne and Dunn, the question remains, what is the appropriate remedy?

[34] Mr. Levy requests that the court draw an adverse inference or give less weight to the accused’s credibility and thereby enhance the complainant’s credibility and evidence without the necessity to recall Sara in reply. It was clearly understood that the use of the term, “adverse inference” was not literal and employed to encompass the matter of credibility findings.

[35] The jurisprudence provides that the Crown is not foreclosed from requesting a remedy short of recalling a witness. However, as stated in Quansah at para. 117, there are several factors to consider in formulating a remedy. These include the seriousness of the breach, the context of the breach, the timing of the objections, the positions of the offending party, any request to recall a witness, the availability of the impugned witness for recall and the adequacy of an instruction to explain the relevance of a failure to cross-examine.

[36] I note that in Quansah at para. 119, Watt J.A. stated:

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.

[37] Here, I have considered the seriousness of the breaches, their context, the timing of the objections, positions of the offending party, the request to not recall a witness, and the availability of the impugned witness for recall.

[38] In this case, I adopt the words employed by Watt J.A. as found in para. 120 of Quansah:

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.

[39] While I appreciate that the rule is not inflexible, the appropriate remedy in this case is to recall Sara to provide testimony in reply.

[40] Recall my earlier comments. Defence counsel raised the potential of the issue months prior to this formal argument. Given that the issue was raised well in advance and during the early stages of the defence case, along with the Crown being unable to articulate a valid reason why Sara could not re-attend court, it seems to me that there is really no valid reason as to why the witness could not be made available for further testimony. I appreciate that there may be some notable inconvenience to Sara to re-attend court, and she has already been on the witness stand for a considerable length of time.

[41] However, no other rationale is advanced to dissuade me that there would be undue disruption of trial continuity or of the narrative. Again, it must be reiterated that this issue was well-known to the parties long before the conclusion of the evidence at trial and arrangements could be made to accommodate the witness. The Crown has the opportunity to recall the witness or decline from availing itself from this choice of remedy.

Conclusion

[42] In this case, I accept that the confrontation principle is not violated where it is clear, in all the circumstances that the cross-examiner intends to impeach the complainant’s story. This has been the constant theme throughout the entirety of the defence case. Defence counsel is not required to delineate or canvass every issue or minutiae to demonstrate compliance with the rule.

[43] That being said, and for all of the aforementioned reasons, the Crown’s application is granted in part. In my opinion, the Crown has established four instances where the failure of defence to cross-examine the complainant has engaged the rule in Browne and Dunn.

[44] In the circumstances of this case, I am disinclined to remedy the breach with a self-instruction about the credibility of the witness who was not confronted with the contradictory evidence as well as the credibility of the accused who gave the contradictory evidence. I will permit the Crown to recall the complainant or any other witness in reply to respond to these particular lines of questioning, as outlined in my oral reasons and specified herein.

A.J. GOODMAN, J. Released: July 30, 2018

[^1]: The reader may observe that certain points raised by the Crown attorney appear in both of my assessments under Appendices “B” and “C”. In other words, I have determined that some areas of dispute were not substantial and also were also generally covered off by questions posed by defence counsel.