New & Notable: Not just a procedural rule

Brian Dexter crashed his car shortly after leading the police on a high speed chase. He had been drinking that night. His three friends who were also in the car were injured. At trial he testified that he had not been driving at the time of the accident. He asserted that he had earlier gotten in the backseat and fell asleep - he implied that one of his friends had been driving. 


The three friends testified at trial. During the cross of two of them the defence suggested to them that the accused was "unwilling to drive". During the cross of the third occupant of the vehicle the defence suggested that someone else might have been driving; that witness denied the assertion. He suggested that the car was the accused's "baby" and no one else would have been allowed to drive it.


Dexter was convicted. In rejecting his evidence the trial judge noted that one of the factors that was taking into account was the breach of the rule in Browne v Dunn by defence counsel. Something which teh Crown raised in submissions.


Dexter was convicted and appealed: 2013 ONCA 744


On appeal he argued that the trial judge erred in finding that the rule had been breached. 


His appeal was dismissed. In dismissing the appeal the court noted, inter alia, the following key points about the rule. First, the rule is not merely a procedural rule; it goes to the heart of trial fairness [para 17].


Second, the rule is aimed at ensuring that witnesses are giving an opportunity to contradict such assertions.


Third, the rule seeks to permit the trier of fact the opportunity to observe the demeanour while responding to such contradictions. 


Fourth, that there are at least two remedies for a breach of the rule: (i) the trial judge can take the breach into account when consider the evidence of the witness; and (ii) the witness can be recalled.


In the present case, the suggestion that the accused had been "unwilling to drive" did not alert the witness to the real contradiction that the defence had in store. The rule had been breached. Further, the trial judge did not err in not permitting the witness to be recalled.