Know The Rule In Browne v. Dunn or Risk Losing Your Jury
A decision of Justice Annette Casullo should be a reminder to trial lawyers at all levels of the importance of knowing the rule in Browne v. Dunn, [1893] J.C.J. No. 5, and making sure it is followed. A failure to follow the rule could result in the jury being struck.
The rule in Browne v. Dunn requires that counsel put a matter to a witness involving the witness personally while on the stand if counsel is later going to seek to impeach the witness’s credibility. The purpose of the rule is to ensure that parties and witnesses are treated fairly. As Justice Casullo stated in her recent decision, the rule promotes fact-finding accuracy and enables the trial judge to observe and assess the witness when confronted with contradictory evidence and given a chance to explain their evidence.
In Taylor v. Zents, 2024 ONSC 166, Justice Casullo struck the jury in a motor vehicle collision case as a result of defense counsel’s failure to follow the rule in Browne v. Dunn. Defense counsel deliberately failed to put an entry from a clinical note to the plaintiff when cross-examining him. Thereafter, counsel put that clinical note to the plaintiff’s experts in cross-examination, the purpose of which was to challenge the plaintiff’s credibility, which was the crux of the defendant’s case. As Justice Casullo noted, the defense appeared intent on proving that the plaintiff had fabricated his symptoms to obtain a particular diagnosis, which was grounded in the plaintiff’s inconsistent reporting of symptoms. This clinical note was a critical piece of evidence for that theory.
In Taylor, not only was the plaintiff deprived of the opportunity to explain the note, but when defense counsel put this note to one of the plaintiff’s experts in cross-examination, it led to a damaging concession for the plaintiff’s case that caused an audible reaction from the jury. Justice Casullo noted there was no walking back from that moment. Consequently, Justice Casullo determined that a correcting instruction or recalling the plaintiff would not be sufficient to remedy the damage done. The only option was to strike the jury.
The Ontario Court of Appeal has stated that the trial judge’s decision in this respect and the remedy they choose are entitled to considerable deference on appeal. A trial judge is best suited to take the temperature of a trial proceeding and assess whether any unfairness has been visited on a party because of the failure to follow the rule.
It is worth mentioning that the timing of counsel’s objection to a breach of the rule in Browne v. Dunn is important. In R v. Quansah, 2015 ONCA 237, the Ontario Court of Appeal noted that the absence of a timely objection to an alleged breach of the rule is a factor for the trial judge to consider in determining the nature of the remedy. On appeal, the absence of a timely objection is also a factor to be taken into account in determining whether the lateness of the objection, coupled with the remedy applied, caused sufficient unfairness that a miscarriage of justice resulted.
In sum, know the rule in Browne v. Dunn and object in a timely manner when there is a breach by opposing counsel. Failure to do so could lead to catastrophic consequences for counsel and their clients.
About the Authors
A born-and-raised Barrie resident, Karen knows and loves her community. She is proud to be a partner in one of Canada’s most successful personal injury law firms—right in her own backyard. Karen joined Oatley Vigmond in 2013 as an associate lawyer. She holds a BA from Queen’s University and her Juris Doctor from Bond University in Australia. Prior to being called to the Bar in January 2013, Karen articled at a well-known personal injury law firm in Toronto.