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Evidence - Browne v Dunn (3). R. v. S.L.
In R. v. S.L. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this brought against convictions for "human trafficking (s.279.01(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”)); receiving a material benefit knowing that it was derived from sexual services (s. 286.2(1) of the Code); receiving a material benefit knowing it was derived from trafficking (279.02(1) of the Code); assault (s. 266 of the Code), and trafficking in cocaine (s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19)".
Here the court considers the degree of confrontation that the rule in Browne v Dunn requires:[19] We accept the appellant’s submission that not every piece of contradictory evidence must be “slogged through” during cross examination and that direct confrontation on an issue may be unnecessary where it is apparent that the cross examiner does not accept the witness’ statements: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 203. However, as this court recently stated, “the rule requires the cross-examiner to confront the witness on matters of true substance upon which the cross examiner intends to impeach the witness’s credibility, so that the witness is afforded an opportunity to explain”: R. v. McDonald, 2025 ONCA 807, 179 O.R. (3d) 721, at para. 57. This is a core rule of trial fairness.
[20] The apparent discrepancy was not put to the complainant in cross examination. She was given no opportunity to explain. It is also clear on its face that the evidence was a matter of “true substance”. Indeed, defence counsel drew a straight line from this issue to characterizing the complainant as a liar, who could not be believed.
[21] A trial judge’s determination of whether there has been a breach of the rule in Browne v. Dunn and any potential remedy are entitled to deference: McDonald, at para. 61; Quansah, at para. 101. The trial judge discussed his recollection of the testimony with counsel, heard their arguments on the issue, and consulted the record of the complainant's testimony. After discussions with counsel about wording, he delivered a correcting instruction. The trial judge was well placed to determine if a correcting instruction was needed and the content thereof. We would not interfere with this discretionary remedial action. . R. v. C.P.
In R. v. C.P. (Ont CA, 2026) the Ontario Court of Appeal considers a Browne v Dunn witness cross-examination issue:[27] Nor am I persuaded that there was a failure to raise the issue of delusions and hallucinations with the complainant during cross-examination that would have engaged the rule in Browne v. Dunn.
[28] The rule in Browne v. Dunn requires that a cross-examiner confront a witness on matters of substance on which the cross-examiner intends to impeach the witness, so as to afford the witness an opportunity to explain: R. v. McDonald, 2025 ONCA 807, at paras. 57-59, 70.
[29] The complainant testified that she experienced hallucinations and delusions during the time frame of the allegations. The defence was not seeking to contradict the complainant about the fact that she experienced hallucinations and delusions. The defence was not required to cross-examine her about the specific cause of those symptoms. Further, the defence cross-examined the complainant about the fact that she stopped taking her prescribed medication during the time frame of the allegations. The complainant agreed she did, said she did not need it, and said she was telling the truth. There was no violation of the rule in Browne v. Dunn here. . R. v. McDonald
In R. v. McDonald (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal murder appeal, here brought against a jury decision that "found the appellant guilty of second- degree murder".
Here the court corrects a erroneous Browne v Dunn corrective jury instruction:3. The Corrective Instruction
[71] Even if one were to accept that there was a breach of the rule in Browne v. Dunn, which I do not, there remains an insurmountable difficulty with the way in which the perceived problem was remedied. Although the remedy for a breach of the rule in Browne v. Dunn is a matter of discretion, I am of the view that the corrective instruction provided to the jury contains an error in principle.
[72] For ease, I repeat that instruction here:To decide the reason for what Mr. McDonald did or said afterwards you should consider all the evidence. As it relates to Ms. Gregory, the defence position is that you should not believe her and that you should find her account unreliable.
[Defence counsel] yesterday suggested that she made up her account. However, I must point out to you that she was not challenged in cross-examination in that way. She was not given an opportunity to explain any assertion that she was making up her testimony and as such, it is not open to you to conclude that she made it up for one reason or another.
Her reliability, and whether or how much of her evidence you will accept, is up to you but you cannot base that decision on a determination that she fabricated her story. That was not put to her. [Emphasis added.] [73] In my view, this instruction went too far because it inhibited the jury from considering whether Ms. Gregory fabricated her evidence about the phone call and, if there was a call, the contents of that call. Therefore, even if there had been a breach of the rule in Browne v. Dunn, the corrective instruction went too far.
[74] Instead, assuming a breach, at most, the jury should have been told that they could take into account the fact that Ms. Gregory was not questioned about fabricating the call or its contents when deciding the weight, if any, to be given to her evidence about the confession: see e.g., McNeill, at para. 49. Instead, consideration of fabrication was erroneously removed entirely from the calculus. The effect of the impugned instruction was to direct the jury that they had to treat Ms. Gregory’s evidence about the call as credible and could only reject it on reliability grounds. Respectfully, this was an error. The jury was not required to accept Ms. Gregory’s evidence about the call as true simply because it was not suggested to her that she was making it up or, to put it another way, “fabricating” the fact that the appellant had confessed. As before, the rule in Browne v. Dunn is one of fairness, not admissibility.
[75] Although the trial judge stated that it “was not [his] intention to lay it out that way”, and it undoubtedly was not his intention, the effect of this instruction, given in the real-time speed of a jury trial, was profound. The jury was essentially instructed that they could not find Ms. Gregory had been intentionally untruthful, leaving them only to deliberate about whether she had trouble recalling the details of the confession, but not whether it had been fabricated.
[76] Although the trial judge offered to re-read the instruction with an added clarification that the jury could believe or disbelieve any part of Ms. Gregory’s testimony, he declined to take out the erroneous part of the instruction that the jury could not base its decision on whether to accept Ms. Gregory’s evidence on a determination that she had fabricated her story. Accordingly, it is unsurprising that defence counsel was instructed “just to leave it totally”, a decision that was undoubtedly rooted in a desire to not draw more attention to the matter than necessary.
[77] The respondent emphasizes that the jury received correct instructions regarding how to approach each witness’s evidence, and that they could believe some, none or all of a witness’s testimony. This, however, is no answer to the difficulty that arose from the impugned instruction. This general instruction was inconsistent with, and undermined by, the trial judge’s specific instruction that the jury could not conclude Ms. Gregory made up the confession: “you cannot base that decision on a determination that she fabricated her story.” In these circumstances, the jury would not have understood that it was open to them to find Ms. Gregory’s evidence about the call was not credible. As a result, the trial judge’s general instruction about how much or how little to believe a witness’s testimony did not overcome and remedy his specific instruction erroneously telling the jury it could not consider whether Ms. Gregory fabricated the confession.
[78] Of course, appellate courts are not to review jury instructions against a standard of perfection. Instead, they are to ask whether the instructions, when read as a whole, equipped the jury to decide the case according to the law and the evidence: R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14. Unfortunately, that standard is not met in this case: the Browne v. Dunn instruction usurped the jury’s function by prohibiting the jury from finding the confession was fabricated because that suggestion was not put to Ms. Gregory in exactly that way.
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