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Case-Splitting, Browne v. Dunn, and Other Considerations in Presenting New Evidence and Testimony

August 02, 2023

Following a trial, by which the appellant was found guilty of sexual interference and assault, an appeal dealing specifically with a conversation between the appellant and a Vice Principal of a school was analyzed. 

The case initially dealt with an instance of abuse between the accused and a student that occurred in a classroom. In the trial, the judge relied on witness testimony and video surveillance to determine that the behavior of the complainant, called JM for privacy purposes, was because of the assault, and not the suspension imposed by the Vice Principal. 

The Vice Principal, as the Crown’s witness, spoke on the details of the conversation he had with the appellant in the school hallway, saying that they had merely exchanged pleasantries. However, the appellant’s version of events was very different, as he said that the Vice Principal had told him that JM was “strange” and that the appellant had responded by saying that JM had called the Vice Principal a derogatory word. The Vice Principal was then called by the defense lawyer to testify in reply, and said that neither statements were made, and also asserted that had he been told JM had called him a derogatory name, the suspension imposed would have been longer. 

About the Ruling

Following the reply testimony, multiple submissions were made to the judge. The rule of Browne v. Dunne was applied, which states that any contradictory evidence must be brought before a witness in order to give them the opportunity to respond. This was brought forward because of the appellant’s description of the interaction in the hallway, specifically the appellant’s statement of JM’s derogatory comment, which was not brought up to JM during cross examination. Instead of recalling JM to the stand, the Crown instead suggested that the appellant’s testimony should not be given much weight, if at all. 

The judge found that the appellant was not credible, and found him guilty. The convicted appealed, but this appeal was dismissed. However, the appeals court found that the judge erred in applying Browne v. Dunn, and that instead the judge should have questioned (though this was not raised by the defence lawyer) whether calling the Vice Principal to testify in reply would result in a split case. 

The rule against case-splitting is that the Crown is not able to tender more evidence following a response from an accused. This is to ensure fairness to the accused and that the Crown presents all the evidence at their disposal to prove guilt. This was established in a 2001 Supreme Court of Canada decision, R. v. Latimer. 

However, it was also found that the case before the appeals court did allow for reply testimony under another decision by the SCC, R. v. Krause, which states (at para. 16): 

“The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated…” 

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