Case information

Criminal law — Evidence — Charge to jury — Rule in Browne v. Dunn — Whether trial judge erred by providing Browne v. Dunn instructions to jury — Hearsay — Out of court statement by accused — Whether trial judge erred by declining to give special instruction in relation to alleged confession by accused

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

On July 21, 2018, in the early morning hours, the applicant mistook the victim for the person who stole his backpack two days earlier. The applicant and an acquaintance approached the victim on his bicycle. A confrontation ensued in which the victim was stabbed; he died of his injury.

The acquaintance testified at trial that the applicant stabbed the victim, and that the applicant stated “I pushed it in him”. A bystander testified that she saw two people approach a person on a bicycle, one of whom had his hands in his pockets, and the other of whom was gesturing with his hands. She did not see the stabbing. The applicant also testified. His evidence was that the acquaintance placed his hand on the handlebar of the victim’s bicycle and accused him of stealing the applicant’s backpack. The applicant testified that he did not see the stabbing, but that the acquaintance gave him a “vicious look” – his eyes wide open and blowing down with his mouth – as they walked away. The applicant was disturbed by the look and left the area shortly afterward. He denied saying “I pushed it in him”. The acquaintance was not cross-examined with respect to whether he touched the handlebar of the victim’s bicycle, or about what look, if any, he gave the applicant after the victim was stabbed.

The applicant sought a jury instruction that, before relying on the acquaintance’s evidence of the applicant’s incriminating statement “I pushed it in him” for the truth of its contents, they must be satisfied beyond a reasonable doubt that the statement was made. The trial judge declined to give this instruction. The trial judge also held that the failure of the applicant to cross-examine the acquaintance about the handlebar or his facial expression were violations of the rule in Browne v. Dunn and instructed the jury accordingly.

The Court of Appeal held that no special instruction was required in relation to the incriminating statement, and that the trial judge’s Browne v. Dunn determinations contained no errors in principle and were therefore entitled to deference. The appeal was dismissed.