Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”

Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment.  In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.

The rule in Browne v. Dunn generally requires 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 testifying.

In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision.  ICBC denied coverage arguing he was impaired.  Following the collision various evidence was gathered documenting the appellants possible impairment.  At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“.  The notes of this Sgt. were shared with the appellant prior to trial.

During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment.  He argued this violated the rule in Browne v. Dunn.  The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated.  In reaching this conclusion the court provided the following reasons:

[76]       The rule in Browne v. Dunn seeks to preserve trial fairness and fairness to witnesses. It generally requires 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: R. v. Henderson (1999), 134 C.C.C. (3d) 131 at 141 (Ont. C.A.).

[77]       Whether the rule in Browne v. Dunn applies is a question of law, reviewable on a standard of correctness: Drydgen at para. 22. But deference is owed to the factual findings underpinning the trial judge’s conclusion on whether or not the rule is engaged: R. v. Lyttle, 2004 SCC 5 at para. 65; Quansah at para. 90; R. v. Giroux (2006), 207 C.C.C. (3d) 512 at para. 49 (Ont. C.A.), leave to appeal ref’d [2006] S.C.C.A. No. 211.

[78]       The rule is intended, among other things, to avoid the “ambush” of a witness: R. v. Verney (1993), 87 C.C.C. (3d) 363 at 376 (Ont. C.A.). A number of authorities make clear that surprise remains a key element of when the rule might be engaged: Quansah at para. 86; Drydgen at para. 18; R. v. Ali, 2009 BCCA 464 at para. 39; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at para. 317, leave to appeal ref’d (2018), [2017] S.C.C.A. No. 366; Liedtke‑Thompson v. Gignac, 2014 YKCA 2 at para. 43.

[79]       The rule does not apply where it should be obvious that the cross‑examiner intends to impeach the witness’s testimony. In Browne v. Dunn, Lord Herschell wrote at 71:

Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.

[80]       Such was the case here. The appellant testified that he considered himself to be capable of properly controlling his motor vehicle at the time of the accident. The entire case was based on ICBC’s contention that the appellant was so impaired by alcohol he was incapable of properly controlling his motor vehicle. As the trial judge noted in his reconsideration decision, it was not a surprise to the appellant that ICBC would be calling Sgt. Kirkman as a witness. The notes in question were disclosed to the appellant long before trial. Further, it should not have come as a surprise to the appellant that ICBC would rely on Sgt. Kirkman’s recorded observations—virtually all of which were consistent with well‑recognized indicia of significant impairment. Those observations were probative of the central issue at trial.

[81]       In addition, the appellant’s counsel did not make timely objection to the evidence of Sgt. Kirkman. He sought no remedy to address the issue, including recalling the appellant to refute the observations recorded by Sgt. Kirkman. Rather, he waited until closing submissions to even raise the point, effectively foreclosing resort to other potentially efficacious remedies. The failure to make timely objection in this case simply underscores my conclusion that the appellant was not taken by surprise when ICBC sought to use Sgt. Kirkman’s notes to establish that the appellant was incapable of properly controlling his motor vehicle on the morning in question. In my view, the rule in Browne v. Dunn was not violated in this case, nor was the trial rendered unfair in the circumstances described. I would not accede to this ground of appeal.