Case: R. v. Quansah, 2015 ONCA 237
Keywords: Browne v. Dunn, jury instructions, remedy, prison
Synopsis: Quansah and Tu are inmates at Central North Correctional Centre. They were playing the board game Risk and as usually happens when you play Risk (in or out of prison) a dispute arose. Tu challenged Quansah to a fight. Quansah hesitated and no fight occurred. As Justice Watt of the Ont. C.A. explained, this was in breach of the inmate code:
 An informal inmate “code” regulates life among the prisoners. The code requires any inmate challenged to a fight by another inmate to fight. An inmate who fails to respond to the challenge may be beaten, stabbed or kicked off the range, as determined by senior inmates. An inmate who at first fails to respond to a challenge to fight may restore his reputation by “showing up” subsequently through arrangements made with senior inmates.
 The areas best suited for fights between inmates are those not visible to the guards from the control module: the shower area and inside individual cells. The best time for cell fights is in the morning after the cell doors have been “cracked”.
Quansah was concerned about the consequences of backing down when called out to fight — he would be labelled a “punk”. That evening Quansah agreed to fight Tu one-on-one. The next morning, when the doors were “cracked” at 9 am, Quansah stabbed Tu to death in Tu’s cell. They were alone.
At trial, Quansah said he went to Tu’s cell to engage in a consensual one-on-one fight to restore his reputation. Quansah said that Tu produced a knife and he gained control of it and stabbed Tu in self-defence. The jury decided it was not self-defence and found Quansah guilty of first degree murder. On appeal, Quansah argued that trial counsel had breached the rule in Browne v. Dunn and that the trial judge erred in instructing the jury. The C.A. dismissed the appeal.
Importance: On the facts alone, the decision is worth a read. Justice Watt delivers a lesson on what it’s like to be in prison, complete with some essential slang: “six up”, “rushed”, “cracked”, “kite”. On a legal basis, it’s of interest in that it provides a refresher on Browne v. Dunn and guidance on appealing on that ground. Justice Watt, who wrote the book on jury instructions, also provides some analysis on the appropriate instruction to remedy a breach (and includes an extract from the jury instruction as an appendix).
The rule in Browne v. Dunn provides that if a party intends to later impeach a witness with contradictory evidence, that party must put that evidence to the witness while in the witness box to give them an opportunity to provide an explanation. It is a rule of evidence rooted in fairness and it assists with the orderly presentation of evidence. Failure to cross-examine a witness on a point tends to support an inference that the opposing party accepts the witness’s evidence on that point.
The rule however is not fixed and trial judges have significant discretion in its application. The rule “does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination.” (para. 81) The focus should be on matters of substance on which a party relies on to impeach a witness’s credibility.
The failure to cross-examine can be of little significance if the contradicted evidence is little significance in the conduct of the case and to the resolution of critical issues of fact. The impact on an accused’s credibility is more pronounced where a “central feature” of a witness’s testimony is not addressed in cross-examination.
In applying the principles set out, Justice Watt reiterated the flexible nature of the rule in Browne v. Dunn: it’s “not some ossified, inflexible rule of universal and unremitting application that condemns a cross-examiner who defaults to an evidentiary abyss” (para. 89). He also emphasized that as a result of a trial judge’s position in assessing unfairness, his or her decision as to breaches of the rule are entitled to considerable deference on appeal: “A trial judge has a reserved seat at trial. We have a printed record” (para. 101). On this basis, Justice Watt refused to disagree with the trial judge’s conclusions.
As to remedy, deference is also accorded to the trial judge’s decision. A trial judge may recall the witness and give a jury instruction about “the relevance of the failure to cross-examine as a factor for them to consider in assessing the credibility of an accused as a witness and the reliability of his or her evidence” (para. 119). A recall is not a condition precedent to including a Brown v. Dunn jury instruction. As to the content of the instruction, Justice Watt stated at para. 121:
A trial judge who decides to give a specific instruction to the jury about the failure to comply with the rule in Browne v. Dunn as a factor to consider in the jury’s credibility assessment need not pronounce a specific word formula to achieve that purpose. The instructions should not be characterized as a “special instruction”, but should make it clear that the failure has relevance for the credibility of the witness who was not confronted with the contradictory evidence, as well as the credibility of the witness who gave the contradictory evidence. The instruction need not elaborate on the obligations of counsel: Paris, at paras. 27-29; Dexter, at para. 43.
As a final note, Justice Watt stated that the Crown has a duty to ensure their objections on failure to cross-examine must be timely. And where the objection is not timely, some explanation should be given. The absence of a timely objection is a factor to consider in determining the extent of the unfairness caused by the breach.
Counsel for the Appellant: Brian Snell and Gabriel Gross-Stein (Lockyer Campbell Posner, Toronto)
Counsel for the Respondent: David Finley (Attorney General of Ontario, Toronto)