Monday, October 4, 2010

Browne v Dunn not absolute

R. v. Johnson, 2010 ONCA 646, released online today, states:

[79]          To the extent that the Browne v. Dunn issue might arise during a new trial, I would simply note the following:  The rule is one of fairness, and is not absolute.  Its application should be determined according to the circumstances of each case.  Counsel should not necessarily be obliged to plod through a witness' evidence in-chief, putting him or her on notice of every detail that they do not accept: see R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at pp. 636-37; R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42.  A pragmatic approach to the rule is most appropriate.

1 comment:

Kas Marynick said...

Nice. Surprise should be preserved as a legitimate defence tactic.