Her Majesty the Queen - v. -, 2015 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 008 Date: January 19, 2015 Information: 24087856 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordan Michael Kosowan Appearing: Ms. T. Olyenchuk For the Crown Mr. J. Streeton For the Accused INTERIM RULING I. J. CARDINAL , J [ 1 ] Mr. Kosowan is charged with committing an assault on Brittany Redman between October 4 and 5, 2013 in Choiceland, Saskatchewan, contrary to

section 266 of the Criminal Code . The trial proceeded on November 19, 2014 with the Crown calling Ms. Redman to testify and the defence calling Ms. Zurloff. Mr. Kosowan did not testify. [ 2 ] The nub of the Crown’s case is that Mr. Kosowan assaulted Ms. Redman at their residence. They went out to the local bar at about 8 pm to celebrate his birthday, where they met with friends. The two of them returned home around midnight and she immediately went to bed. They began arguing and Mr. Kosowan assaulted her. He went outside, had a cigarette, calmed down, and they both stayed

at the residence that night. No one else was at the residence when they came home and no one came over to their residence that nightaccording to Ms. Redman; it was just the two of them at home. [3] The nub of the defence evidence is that Ms. Zurloff and others went over to the Redman/Kosowan residence that night tocelebrate Mr.Kosowan’s birthday. Ms. Redman and Mr. Kosowan had a verbal argument but there was no physical altercation betweenthem. Things were heated between them so Mr. Kosowan stayed at his residence and Ms. Redman went over to Ms.

Zurloff’s residencewhere she spent the night and left the next day. [4] At the conclusion of the defence case, the Crown raised the issue of the rule in Browne v Dunn (1893), 6 R 67 (HL),(Browne) submitting that defence counsel had breached it by not sufficiently challenging Ms. Redman with the defence evidence whichcontradicted her. The Crown requested Ms. Redman be recalled to the stand. [5] For the following reasons, I find the rule in Browne was not engaged and dismiss the Crown application. [6] The rule in Browne is a well-known rule of evidence.

As noted in R v McNeill (ON CA), [2000] OJ No.1357 (CA), at paragraph 44 and 45: 44. The rule in Brown v Dunn was succinctly stated by Labrosse J. A. in R v Henderson, supra, at p. 141: This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictoryevidence the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in thewitness box. 45. In R v Verney (1977), (ON CA), 87 CCC (3d) 363 at 376 (Ont CA), Finlayson J.

A. outlined the purpose andambit of the rule: Browne v Dunn is a rule of fairness that prevents the “ambush” of a witness by not giving him an opportunity to state his position withrespect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feelobliged to slog through a witnesses’s evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defencecounsel must be free to use his own judgment about how to cross-examine a hostile witness.

Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. . . . [7] The Supreme Court of Canada in R v Lyttle, 2004 SCC 5 endorsed this approach in the context of criminal trials as being “asound principle of general application” (para. 65). The Ontario Court of Appeal in R v Johnson 2010 ONCA 646 , [2010] OJNo 4153 (Ont CA), stressed that a pragmatic approach is desired as each case must be determined on its own circumstances.

It must beremembered that not every failure to cross examine a hostile witness will result in a breach of the rule. [8] In R v Khuc 2000 BCCA 20 a number of individuals were charged with trafficking in drugs. One of the defendants deniedbeing present when the transaction took place. Crown counsel did not cross examine this accused or some of her witnesses. In finalsummation to the jury, the Crown essentially told them there was no point in suggesting to her she was there as she would continue todeny her presence, and her continued denial would not assist the jury in determining her credibility.

At paragraph 44 the BritishColumbia Court of Appeal noted: 44. Crown counsel’s point is well taken. There can be no doubt that the general rule is that counsel must confront a witness with anynew material he or she intends to adduce or rely on after the witness has left the box. However, the rule does not go so far as to requirecounsel to ask contradicting questions about straightforward matters of fact on which the witness has already given evidence that he orshe is unlikely to change. Judges tell juries that they may accept or disbelieve all or any part of the evidence of a witness.

Thatinstruction does not depend upon opposing counsel asking unnecessary questions. With respect, I believe the law is correctly stated inthe case of R v Mete, (BC CA), [1973] 3WWR 709 (BCCA), particularly at 713. I do not believe the rule is any

different if the evidence on which there is no cross-examination directly contradicts the evidence of the Crown or merely supports a fact inconsistent with the Crown’s theory of the case. Counsel who does not cross-examine takes the chance that the evidence will be accepted; but rather than embark upon a futile cross-examination, as Crown counsel did in this case, to rely on the judgment of the jury as to what evidence it will accept. [ 9 ] The Ontario Court of Appeal in R v Dexter, 2013 ONCA 744 observed that the rule in Browne, supra, is not merely a procedural rule, it is a rule of trial fairness.

At paragraph 18, the court affirmed Verney, supra, that the cross-examiner is not required to: “slog through a witness’s evidence in chief putting him on notice of every detail the defence does not accept”. ..Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness. [ 10 ] Further, the Court stated: 19. The rule is also a rule of common sense.

By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system. [ 11 ] If the rule in Browne is violated, the trial judge has discretion as to how to proceed to remedy the situation. A number of factors which may be considered are outlined in Dexter , supra, at paragraph 20 : 20.

The effect that a court should give to a breach of the rule in Browne v Dunn will depend on a number of factors.

In deciding how to address a breach, a trial judge may consider: * The seriousness of the breach; * The context in which the breach occurred; * The stage in the proceedings when an objection to the breach was raised; * The response of counsel, if any, to the objection; * Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation; * The availability of the witness to be recalled; and * In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.

Thus, the extent of the rule’s application is within the discretion of the trial judge after taking into account the circumstances of the breach. (Citations omitted) [ 12 ] The lack of cross-examination of a witness concerning the contradictory evidence may also be used to assess credibility and diminish the weight to be afforded the contradictory evidence. (See R v Wapass, 2014 SKCA 76 at para.23; R v Drydgen, 2013 BCCA 253 at para. 26 )

[ 13 ] In reviewing a number of cases submitted on behalf of Mr. Kosowan, they all stress that one may run afoul of the rule in Browne if counsel fails to cross-examine upon a central feature of the witnesses’s evidence. [ 14 ] In Drydgen , supra, the trial judge found the rule in Browne had been violated as defence counsel did not specifically cross- examine the Crown witness about the presence of a silver gun.

On appeal, the British Columbia Court of Appeal held that counsel had extensively cross-examined the witness on various details of the occurrence such that it was clear the issue was whether the witness’s evidence concerning the presence of a gun was reliable. The Court found that the rule was not engaged in that case. [ 15 ] In the present case, counsel for Mr. Kosowan fairly outlined his cross-examination of the complainant, Ms. Redman, at paragraph 2 of his brief: a. He asked her three times if she had actually been to the bar that night.

He suggested to her three times that they had hosted a gathering at their place. b. He asked twice what friends they had met at the bar and suggested as an alternative that perhaps friends had come back with them from the bar. c. He questioned how she knew when she got back, referring to the bars closing times. d. He questioned the events that happened after they came home. e. He questioned the timing of the argument and suggested that her and Mr. Kosowan had been arguing earlier in the evening. f. He questioned Ms.

Redman on details of the alleged assault. [ 16 ] Defence counsel was not obligated to put all the details to Ms. Redman concerning the contradictory evidence he expected Ms. Zurloff to proffer. He asked her a number of times whether they had people over to the residence that night or any time in 2013 and she repeatedly responded they did not. [ 17 ] Her evidence in chief did not change in cross-examination as Ms. Redman maintained throughout that only she and Mr.

Kosowan were at the residence and no one else was present at anytime before, during or after the alleged assault occurred. [ 18 ] Nothing more would be gained from defence counsel putting more details to Ms. Redman in cross examination. Her version is incompatible with that of Ms. Zurloff. Having made it clear that they had no one over at their house that night, there was no need for defence counsel to go further in cross examination. [ 19 ] As the rule in Browne v Dunn is not engaged, there is no need to determine a remedy. _______________________________________ I. J. Cardinal, J