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| John L. Hill |
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 allowed to explain. The century-old decision is part of Canada’s common law and upheld as a sound principle of general application rooted in considerations of fairness (R. v. Lyttle, 2004 SCC 5). However, the Ontario Court of Appeal recently had the opportunity to revisit the rule’s application in R. v. McDonald, 2025 ONCA 807.
William Dwayne McDonald was indisputably at Emmanuel Awai’s apartment building the night of Dec. 28, 2016, when Awai was intentionally shot twice in the head. At trial, the only issue was the shooter’s identity. Text messages beforehand suggested he was planning to “do dirt,” and he was driven to the building by Tyler Lamantia, with Jake Thompson present. Cellphone records placed McDonald near the apartment shortly before gunshots were heard. A man matching his description was seen fleeing into a grey SUV similar to Lamantia’s. After returning to the car, McDonald appeared calm, wore new gold necklaces and later texted “Done” to an associate.
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Khasheequia Gregory was a key Crown witness. She had been McDonald’s intimate partner. At trial, she initially minimized her evidence. After being confronted with prior inconsistent statements, she confirmed that McDonald had confessed to her, saying he killed Awai with a shot to the head. She admitted she had been drinking when she received the call and was hungover when she gave her police statement. Her fear of retribution from McDonald influenced her initial testimony. Defence counsel highlighted inconsistencies in her accounts and suggested she was fabricating the confession but failed to confront her directly with the allegation that she was fabricating evidence.
Defence counsel sought a jury caution regarding Gregory’s sobriety and the lack of phone records corroborating the alleged call; the trial judge declined. In closing, the Crown argued that Gregory ultimately told the truth and that any inconsistencies did not undermine the confession. Defence counsel argued that her testimony was unreliable and fabricated.
Crown counsel objected to the defence’s suggestion that Gregory fabricated the confession. The Crown urged the judge to issue a corrective instruction under the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)).
In his charge, the trial judge instructed the jury that, while they could assess Gregory’s reliability, they could not conclude she fabricated her testimony because that allegation had not been put to her during cross-examination. Defence counsel objected, arguing that this improperly limited the jury’s assessment, but ultimately chose not to seek a corrective instruction.
During deliberations, the jury asked about Gregory’s police statement and her trial testimony was replayed. Shortly thereafter, the jury convicted McDonald of second-degree murder.
McDonald appealed with the major ground of appeal being whether the judge’s charge was fair and that there had been no breach of the rule in Browne v. Dunn. McDonald raised two main arguments about the alleged Browne v. Dunn issue that arose late in the trial.
First, McDonald contended that there was no breach of the Browne v. Dunn rule and, therefore, no need for a corrective instruction. Although defence counsel did not explicitly accuse Gregory of fabricating her evidence, McDonald argued that it was apparent she was being challenged on that point. Defence counsel highlighted inconsistencies and weaknesses in her account of the alleged confession to support the position that no confession occurred at all, not merely that her memory was unreliable. On this view, the defence’s closing submission that Gregory made up the confession was a fair comment on the evidence and did not cause any unfairness.
Second, McDonald argued in the alternative that even if there was a Browne v. Dunn violation, the remedy chosen by the trial judge was improper and highly prejudicial. By instructing the jury that it could not reject Gregory’s evidence on the ground that she fabricated it, the trial judge wrongly constrained the jury’s role in assessing credibility, particularly given the central importance of her testimony to the Crown’s case.
The court concluded there was no breach of the rule in Browne v. Dunn. The cross-examination clearly challenged Gregory’s credibility on whether a confession occurred at all, not merely the accuracy of her memory about its details. Defence counsel questioned her inability to recall the phone number, highlighted the absence of phone records to corroborate the alleged call and exposed inconsistencies between her police statement, preliminary inquiry and trial testimony, including on critical matters such as the number of shots allegedly described. These lines of questioning made it evident that the defence position was that the call never happened or, if it did, no confession was made.
Although the cross-examination could have been more explicit, it sufficiently alerted Gregory, the Crown and the jury that her credibility was under attack. The defence's focus on inconsistencies in detail was peripheral; the essential defence objective was to undermine confidence in the existence of any confession. Defence counsel’s later concession of a Browne v. Dunn breach does not establish one, as it followed the trial judge’s ruling and may have reflected acquiescence rather than correctness.
The court rejected the notion that fairness required defence counsel to put to Gregory that she fabricated the confession. No ambush occurred. The rule’s animating principle is fairness, not forcing a witness to deny an allegation of lying. Where credibility is challenged, it is proper for the trier of fact to consider whether the witness is lying based on the evidence. The court cautioned that misapplying Browne v Dunn can derail trials, as it did here, and require a new trial.
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. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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