R. v. McDonald

R. v. McDonald

2025 ONCA 807
Court of Appeal for Ontario — Fairburn A.C.J.O., Paciocco and Harvison Young JJ.A. | November 25, 2025

Background

William Dwayne McDonald was convicted of second-degree murder in the shooting death of Emmanuel Awai, who was killed in his own apartment with two shots to the head. The sole issue at trial was identity — everyone agreed Awai was murdered, but who pulled the trigger?

The Crown's case relied heavily on Khasheequia Gregory, McDonald's former intimate partner. Gregory was a reluctant witness who initially minimized McDonald's involvement, but after a successful section 9(2) application under the Canada Evidence Act, she adopted portions of her police statement — including that McDonald had called her shortly after the murder and confessed, saying "you didn't think I was going to kill him, I bodied him."

Issues

1. Did defence counsel breach the rule in Browne v. Dunn by not explicitly putting to Gregory that she was fabricating the confession?
2. If there was a breach, was the trial judge's corrective instruction appropriate?

The Browne v. Dunn Problem

Defence counsel cross-examined Gregory extensively about inconsistencies in her evidence — she couldn't remember the phone number McDonald allegedly called from, there were no phone records to corroborate the call, and she changed details like whether McDonald said he fired two or three shots. In closing, defence counsel argued she was "making it up."

The Crown objected, citing Browne v. Dunn — the rule that says if you're going to argue a witness is lying, you have to give them a chance to respond during cross-examination. The trial judge agreed and gave a corrective instruction that went nuclear: he told the jury they were "not permitted" to find Gregory had "fabricated her story" and "cannot base that decision on a determination that she fabricated her story."

Why the Instruction Went Too Far

The Court of Appeal found two fundamental problems. First, there was no Browne v. Dunn breach because the "overall tenor" of the cross-examination made it clear defence counsel was challenging whether the confession happened at all — not just quibbling about details. When you're attacking the existence of an alleged confession through extensive questioning about inconsistencies and lack of corroboration, you don't need to add "I suggest you're lying" to make your position clear.

Second, even if there was a breach, the corrective instruction was "an error in principle." The proper remedy would be telling the jury they could consider the lack of direct confrontation when weighing Gregory's evidence — not prohibiting them from concluding she fabricated the confession entirely. The instruction essentially directed the jury to treat Gregory's evidence as credible, leaving them only to debate whether she misremembered details.

Key Takeaway

Courts cannot prohibit juries from concluding that a witness is lying, even when there are procedural missteps in cross-examination.

The Browne v. Dunn rule is about fairness, not admissibility. A corrective instruction can remind jurors to consider whether a witness had a fair chance to respond, but it cannot remove the jury's fundamental job of deciding who to believe and who to disbelieve.