Law360 Canada (November 2, 2026, 9:43 AM EST) --
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| John L. Hill |
An accused who chooses not to recall a Crown witness after unexpected evidence emerges during trial cannot necessarily argue on appeal that he was denied a fair opportunity to challenge that evidence. That is the central lesson of
R. v. Hinseab, 2026 MBCA 71, in which the Manitoba Court of Appeal dismissed an appeal from convictions for sexual interference, invitation to sexual touching and forcible confinement.
The decision examines the rule in
Browne v. Dunn (1893), [1894] 6 R 67 (UKHL), the accused’s right to make full answer and defence, and the limits of appellate intervention in a trial judge’s credibility findings.
The complainant and Hinseab’s family lived in the same apartment building and were friends. The complainant regularly spent time with Hinseab’s younger sister, H.H.
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The complainant described sexual misconduct beginning when she was approximately nine years old and continuing over several years. Her allegations included inappropriate touching, unwanted kissing and incidents in which Hinseab persisted despite her objections. Her evidence was presented partly through a video-recorded police statement admitted under s. 715.1 of the
Criminal Code. She was 17 when she testified at trial.
Her younger brother, T.T., also described seeing Hinseab touch her inappropriately during outings. His evidence had limitations, including his inability to see some of the alleged touching from his position in a vehicle.
The complainant’s mother, Z.T., testified that she learned of the allegations in July 2021. She subsequently confronted Hinseab at a meeting attended by members of his family and their church community. According to Z.T., Hinseab initially denied the allegations but then cried and apologized, acknowledging that he had done what was alleged.
Z.T. also described a second meeting involving a pastor, Hinseab and the complainant. She testified that the pastor urged the complainant to forgive Hinseab, who apologized again. Crucially, Z.T. had not mentioned this second meeting to police. Her account emerged for the first time during her direct examination at trial.
The defence called H.H., who denied seeing her brother touch the complainant inappropriately and insisted that the two were never alone together. Text messages between Hinseab and the complainant also featured at trial. In one exchange, Hinseab acknowledged kissing her when she was 12, although he initially claimed not to remember.
The trial judge accepted the complainant’s evidence on the essential allegations, rejected H.H.’s testimony and convicted Hinseab on all three counts.
Hinseab’s principal argument concerned the unexpected testimony about the second meeting. He maintained that he had been deprived of the opportunity to question the complainant about it because she had already testified before her mother revealed the meeting.
The rule in
Browne v. Dunn promotes fairness by requiring a party intending to challenge a witness’s credibility through contradictory evidence or an inconsistent account to put the substance of that challenge to the witness in cross-examination. This allows the witness to respond and helps prevent trial by ambush. As explained in
R. v. Dowd, 2020 MBCA 23, the rule helps ensure that credibility assessments emerge from a fair and orderly trial process.
The Appeal Court distinguished evidence deliberately withheld from the defence from evidence that neither party knew about before it emerged in testimony. The second meeting fell into the latter category.
Defence counsel thoroughly cross-examined Z.T. about her failure to mention the meeting to police, suggesting that it had never happened. She maintained that her account was true and explained that she had been emotional and had difficulty communicating in English when giving her statement.
The court found that Hinseab had challenged Z.T.’s evidence. The remaining question was whether he had been denied a fair opportunity to question the complainant herself.
The court concluded that Hinseab had a way to pursue that inquiry: he could have sought to recall the complainant as a defence witness.
In
Regina v. Cook (1960), 127 CCC 287, the court recognized that an accused may call a witness who has already testified for the Crown. A witness does not become the exclusive property of the party who called them. The court later recognized that principle in
R. v. Crosby (1994), 88 CCC (3d) 353 (NSCA), and
R. v. Baiton, 2001 SKQB 264. The Court of Appeal also considered
Sutton v. R., 2002 NBQB 49 and
R. v. Despins, 2025 ABKB 444.
These authorities supported the defence’s ability to recall the complainant and question her about the unexpected evidence. Depending on the circumstances, Hinseab could also have sought permission to treat her as a hostile witness.
The court acknowledged that recalling the complainant carried strategic risks. Defence counsel may have preferred to argue that Z.T. had fabricated the meeting rather than allow the complainant to confirm it.
Nevertheless, that was a tactical decision. Citing
R. v. Rose (A.W.) (1993), 88 Man R (2d) 135, and
R. v. Desjarlais (D.G.), 2016 MBCA 69, the court emphasized that trials are dynamic and counsel must adapt when unexpected evidence emerges.
The Crown was not obliged to recall the complainant simply because her mother’s testimony raised an unanticipated issue. By choosing to attack the mother’s credibility rather than recall the complainant, Hinseab could not establish unfairness merely because the defence strategy left the issue unexplored.
The court therefore rejected the
Browne v. Dunn argument. The evidence had not been deliberately withheld, counsel had been able to challenge the mother’s account, and the defence had not been prevented from pursuing further inquiry.
Hinseab also argued that the trial judge shifted the burden of proof, scrutinized the defence witness more harshly than Crown witnesses and misapprehended material evidence.
The court found no error. In
R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada explained that disbelieving defence evidence cannot itself establish guilt. The Crown must still prove the charges beyond a reasonable doubt.
The trial judge’s reasons showed that she understood this obligation. She explained why she considered H.H.’s insistence that Hinseab and the complainant were never alone together implausible, particularly given their frequent contact over several years. She also considered whether H.H. was motivated to protect her brother.
The judge then assessed the Crown’s evidence separately, addressing inconsistencies between the complainant’s and T.T.’s accounts and Z.T.’s failure to mention the second meeting to police. She concluded that these weaknesses did not undermine the essential allegations.
The appeal court relied on
R. v. Buboire, 2024 MBCA 7 and
R. v. C.A.M., 2017 MBCA 70, concerning claims of uneven scrutiny. As the Supreme Court stated in
R. v. G.F., 2021 SCC 20, appellate review focuses on whether credibility findings disclose reversible error.
The court also applied the principles in
R. v. Whiteway (B.D.T.) et al., 2015 MBCA 24,
R. v. Sinclair,
2011 SCC 40 and
R. v. Lohrer, 2004 SCC 80. A reviewable misapprehension must concern the substance of the evidence, be material to the trial judge’s reasoning and play an essential role in the conviction.
The Court of Appeal found no such error. The trial judge had considered the weaknesses in the evidence, explained her credibility findings and correctly placed the burden of proof on the Crown.
The decision reinforces two important principles of criminal procedure.
First, unexpected evidence does not automatically make a trial unfair. Courts must consider whether the accused had a meaningful opportunity to respond. Evidence emerging unexpectedly during testimony is not necessarily equivalent to a breach of the Crown’s disclosure obligations. Here, the defence could have challenged the mother’s account and recalled the complainant for further questioning.
Second, appellate courts do not retry cases simply because an accused disagrees with a trial judge’s credibility findings. Where the judge considers the evidence fairly, applies the correct burden of proof and provides adequate reasons, an appellate court will not substitute its own assessment merely because another interpretation is possible.
The ruling does not mean that strategic decisions excuse genuine unfairness. It confirms that an appellant must show an actual procedural disadvantage or a reviewable error, not simply an unexpected development that complicated the defence strategy. Finding no denial of trial fairness or reversible error in the assessment of the evidence, the Court of Appeal dismissed Hinseab’s appeal and upheld his convictions.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
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