The Limits of Browne v. Dunn: The “tenor” of a cross-examination matters

PUBLISHED ON February 20, 2026

The rules in Browne v. Dunn require criminal defence lawyers to “put our case” to adverse witnesses. The issue of how much of our case needs to be put to the witness has been treated differently by different courts. The Ontario Court of Appeal’s recent decision in R. v. McDonald, 2025 ONCA 807, offers a reminder that the rule is grounded in basic fairness, not rigid formulas or “magic words”.

The Background of R. v. McDonald

The appellant was charged with second-degree murder after the victim was shot twice in the head in his own apartment. The sole issue at trial was the identity of the shooter. The Crown’s case heavily relied on the testimony of the appellant’s former partner, who claimed the appellant called her on the night of the murder and confessed. During cross-examination, defence counsel aggressively challenged her account. Counsel pointed out inconsistencies between her police statement, her preliminary inquiry testimony, and her trial evidence (such as the number of gunshots she claimed the appellant admitted to). Counsel also highlighted her intoxication at the time of the alleged call and the lack of phone records to corroborate that the call ever took place. However, defence counsel never explicitly put the suggestion to Ms. Gregory that she was fabricating the confession.

The Trial Judge’s Browne v. Dunn Error

During closing arguments, defence counsel told the jury that the witness was “making it up”. The Crown immediately objected, arguing that suggesting fabrication without specifically putting it to the witness in cross-examination violated the rule in Browne v. Dunn. The trial judge agreed and delivered a severe corrective instruction. He explicitly told the jury that because the witness was not challenged with the assertion that she made up her testimony, “it is not open to you to conclude that she made it up… you cannot base that decision on a determination that she fabricated her story”. The jury ultimately convicted the appellant of second-degree murder.

The Court of Appeal’s Reversal

Writing for the Court of Appeal, Fairburn A.C.J.O. overturned the conviction and ordered a new trial, clarifying the scope of Browne v. Dunn and how trial judges should respond to perceived breaches.

1. There was no breach of Browne v. Dunn to begin with.

The Court emphasized that flexibility, rather than rigidity, governs the rule. Specific confrontation is unnecessary if the “overall tenor” of counsel’s cross-examination makes it apparent that the defence does not accept the witness’s version of events. By challenging the witness on her missing phone records, her intoxication, and the inconsistencies in the alleged confession’s details, it was blatantly obvious that the defence was attacking whether the confession had actually happened. The Court pragmatically noted: “To require the cross-examiner to suggest to the witness that they are fabricating, just to have the witness respond that they are not, does nothing to advance the fairness of the case”.

2. The trial judge’s corrective instruction usurped the jury’s function.

Even if there had been a breach, the Court of Appeal found that the trial judge’s remedy was a fatal error in principle. By forbidding the jury from considering whether the witness had fabricated her story, the judge effectively cornered the jury into treating the call as credible, leaving them only to assess whether the witness was merely mistaken. The Court clarified that the standard remedy for a Browne v. Dunn breach is simply to instruct the jury that they may “properly take into account the fact that the opposing witness was not questioned about it” when weighing the uncontradicted evidence. Removing the possibility of intentional fabrication entirely from the jury’s calculus went far beyond a permissible cure.

Conclusion

In summary, a lawyer does not necessarily have to use blunt, direct accusations of lying if the broader strategy of the cross-examination effectively communicates a challenge to the existence of the event or the core credibility of the witness.

What is written here is simply a brief and general case summary. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer. Contact Brian Ross at (416) 658-5855.