Browne v. Dunn applied

R. v. S.H., 2010 ONCA 515, released today, describes and applied the Rule in Browne v. Dunn:

[4]               In our view, the trial judge did not err in concluding that there had been a breach of the principle in Browne and Dunn.  There were a number of points that the appellant testified to on which the complainant had not been cross-examined.  It is not necessary that counsel put every potentially contradictory detail to a witness.  However, fairness requires that counsel give the witness the opportunity to address those matters that will later be used to impeach the witness.  Failure to do so may, in some cases, be taken into account in assessing the credibility of the witness giving the contradictory evidence.  Drawing the line is not always easy.

[5]               In the present case, the appellant gave a very detailed description of the events on the night the sexual assault occurred.  This description was markedly different from the description given by the complainant.  There were several parts of the appellant's description that were significant enough, in our view, that the complainant should have been given an opportunity to respond.
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[8]               In the end, the trial judge's decision to take the failure to cross-examine the complainant into consideration is a matter of discretion – see R. v. Giroux, (2006), 207 C.C.C. (3d) 512 (Ont. C.A.).  We see no basis to interfere with the trial judge's exercise of discretion in this respect.  We are not persuaded that there was any unfairness in the evaluation of the appellant's evidence.