R. v. Rose

R. v. Rose
Collection
Supreme Court Judgments
Date
1998-11-26
Report
[1998] 3 SCR 262
Case number
25448
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 25448
Decision Content
R. v. Rose, [1998] 3 S.C.R. 262
Jeffrey Rose Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of British Columbia
and the Attorney General for Alberta Interveners
Indexed as: R. v. Rose
File No.: 25448.
1998: February 25; 1998: November 26.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Right to fair trial ‑‑ Right to full answer and defence ‑‑ Defence required to address jury first if witness called and examined ‑‑ Crown making implications not addressed by defence in address to jury ‑‑ Trial judge not addressing issue in charge to jury ‑‑ Whether provisions requiring order of address to jury contrary to Charter rights to fair trial and to make full answer and defence ‑‑ If so, whether infringement justified ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 651(3) , (4) .
Courts ‑‑ Criminal procedure ‑‑ Order of addresses to jury ‑‑ Defence required to address jury first if defence called and examined witnesses ‑‑ Crown making implications not addressed by defence in address to jury ‑‑ Constitutional rights to fair trial and to make full answer and defence ‑‑ Inherent jurisdiction of trial judge ‑‑ Right of reply.
Subsection 651(3) of the Criminal Code requires counsel for the accused to make his or her closing address to the jury first if witnesses are called and examined by the defence. Subsection 651(4) compels this same order of address where two or more accused are tried jointly and any one of them calls and examines witnesses. The principal issue raised in this appeal is whether these provisions contravene either s. 7 (the right to make full answer and defence) or s. 11 (d) (fair trial) of the Canadian Charter of Rights and Freedoms and, if so, whether the infringement is justified under s. 1 of the Charter . The inherent jurisdiction of the trial judge and the right of reply are also implicated.
The accused was convicted of second degree murder. Prior to the closing arguments, counsel for the accused unsuccessfully sought a ruling pursuant to the Charter permitting him to address the jury last or to reply to the Crown’s closing address. Counsel for the accused addressed the jury first as he had led evidence. The Crown then addressed the jury and twice asked them to draw negative inferences with regard to the accused’s credibility based on a particular part of the defence expert witness’ evidence. Defence counsel had not made reference to this evidence in his closing address. Following the judge’s charge to the jury, defence counsel requested that the trial judge review the evidence on this issue with the jury but he refused to do so.
The accused unsuccessfully appealed his conviction to the Ontario Court of Appeal. On appeal to this Court, the first and third constitutional questions queried whether s. 651(3) or 651(4) of the Code infringe or deny the right of an accused person to a trial in accordance with the principles of fundamental justice and/or the right of an accused person to make full answer and defence (s. 7 of the Charter ), or to a fair trial at which the accused is presumed innocent (s. 11 (d)), and if an infringement were found, the second and fourth queried whether the infringement was a reasonable limit which was demonstrably justified under s. 1 .
Held (Lamer C.J. and McLachlin, Major and Binnie JJ. dissenting): The appeal should be dismissed. The first and third constitutional questions should be answered in the negative; the second and fourth needed not be answered.
Per Gonthier, Cory, Iacobucci and Bastarache JJ.: While the claim made in this case was articulated under both s. 7 and s. 11 (d) of the Charter , a finding that one provision of the Charter has been infringed by the impugned legislative provisions will entail a finding that the other provision has been infringed as well.
The right to make full answer and defence is one of the principles of fundamental justice protected under s. 7 of the Charter . This right does not imply an entitlement to those rules and procedures most likely to result in a finding of innocence. Rather, it entitles the accused to rules and procedures which are fair in the manner in which they enable the accused to defend against and answer the Crown’s case.
It is useful to distinguish between two discrete aspects of the right to make full answer and defence. One is the right of the accused to have before him or her the full “case to meet” before answering the Crown’s case by adducing defence evidence. A second and broader aspect which encompasses the first is the right of an accused person to defend him- or herself against all of the state’s efforts to achieve a conviction. The Crown is not entitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts. However, it is not always the case that defending against the Crown’s efforts to convict will necessarily imply answering words already spoken or deeds already engaged in by the Crown.
The order of jury addresses does not significantly affect the knowledge that the accused will have, at the time of the defence address, regarding the Crown’s theory of the case and interpretation of the evidence. The accused who addresses the jury first may not know in precise detail the manner in which the Crown will articulate to the jury the reasons why it should find the accused guilty. However, the Crown will already have articulated its preliminary theory of the case at the opening of the trial, and will have made fairly clear any refinements or re‑directions in this theory through the questions asked of witnesses and through the nature of the non‑testimonial evidence adduced. The Crown will not be interpreting any evidence in its jury address of which the defence will not be aware. The defence will also know, as the result of events during the trial, the likely manner in which the Crown will present the evidence to the jury. Moreover, the Crown’s ability to take the defence by surprise is severely curtailed by the restrictions placed on the scope of the Crown's closing address to the jury.
The enterprise of defending oneself against a criminal charge does not intrinsically imply a temporal order of speaking, with the accused “answering” the Crown’s jury address with a jury address in reply. What is being answered in the accused’s jury address is the evidence and the Crown’s theory of the case. The accused’s jury address is his or her opportunity to answer the Crown evidence and theory of the case with argument and persuasion. The social science evidence and the observations of experienced appellate court judges support a finding that the right to address the jury last is not a fundamental advantage. It is not unfair to require an accused to engage one of two equally advantageous jury address procedures. The impugned provisions of the Code therefore do not infringe the accused’s right to make full answer and defence under ss. 7 and 11 (d) of the Charter .
In this case, it was open to defence counsel to address an ambiguity in his expert witness’ testimony in his closing address to the jury, to re‑examine the witness in order to clarify his testimony, or to ask that the accused be recalled to testify whether he was aware of the condition described by the expert witness. The fact that the Crown adverted to this condition and the defence did not reveals not an unfairness in the jury address procedure but merely a tactical choice by each party as to what to emphasize.
The impugned sections of the Code do not infringe the accused’s right to procedural fairness under ss. 7 and 11 (d) of the Charter on the basis that they unfairly require the accused to choose between two constitutionally protected rights, namely, the right to testify and to call and examine witnesses in one’s defence, and the right to make full answer and defence to the Crown’s jury address. The accused’s inability to address the jury last is not a violation of the right to make full answer and defence. As such, no unfair choice between two constitutionally protected rights arises.
Sections 651(3) and (4) do not infringe upon the accused’s right to that presumption of innocence. A properly instructed jury would not presume guilt on the part of the accused from the fact that he or she addresses the jury first following the presentation of the evidence. The trial judge must instruct a jury in clear terms that it is the prosecution which bears the burden of proving the accused’s guilt beyond a reasonable doubt and a failure to do so will justify a new trial. Moreover, the entire trial itself proceeds on the same basis.
The principles outlined with respect to s. 651(3) mandate a finding that the s. 651(4) is similarly constitutional. Even though, in the case of multiple accused, one or more accused may be forced to address the jury before the Crown does so even when he or she did not call and examine witnesses, the fact that the accused did not have the choice to address the jury before the Crown is of no consequence as the order of address does not infringe the Charter rights of an accused.
There are two approaches available to a trial judge to remedy unfairness resulting from an improper closing address. First, if a trial judge is of the opinion that an irregularity in counsel’s address has jeopardized the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury. This should suffice in most cases. Second, if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, then in those relatively rare situations, the prejudiced party may be granted a limited opportunity to reply.
It is the duty of the trial judge to present the case for the defence as fully and fairly as the case for the Crown. If there is unfairness in the Crown’s address, a complaint can be brought to the attention of the trial judge who should correct any mistake by Crown counsel in overstepping the bounds of propriety, resulting in an unfair trial. Here, it would have been preferable if the trial judge had directed the jury to consider the qualifying testimony of the defence witness. However, in light of the evidence presented in this case and taking into account the entire charge to the jury no miscarriage of justice resulted from his failure to do so.
The obligation of a trial judge to ensure that an accused’s right to a fair trial is preserved has been enshrined in s. 11 (d) of the Charter . However, the inherent jurisdiction of superior court judges to remedy procedural unfairness during the trial has always existed at common law. It cannot be circumvented by narrow or confining statutory language and can only be removed by clear and precise statutory language. Such language is not found in s. 651 .
Where the Crown is entitled to address the jury last pursuant to s. 651, the trial judge may exercise the court’s residual discretion and grant defence counsel an opportunity to reply in those limited circumstances where the accused’s ability to make a full answer and defence and his or her right to a fair trial have been prejudiced. Such prejudice may arise where the substantive legal theory of liability which the Crown has added or substituted in its closing has so dramatically changed that the accused could not reasonably have been expected to answer such an argument. It may also be appropriate to grant a reply where the accused is actually misled by the Crown as to the theory intended to be advanced. It is only in the clearest cases of unfairness that the trial judge should grant an opportunity to reply as an exercise of inherent jurisdiction. The reply must be confined to those issues improperly dealt with by Crown counsel and cannot be used simply to restate the original position of the defence or to advance new arguments or theories.
Per L’Heureux‑Dubé J.: The reasons of Cory, Iacobucci and Bastarache JJ. were substantially agreed with. Sections 651(3) and (4) of the Code do not violate the Charter . Though there are compelling reasons for Parliament to decide to change the order in which closing addresses are given, the current model does not implicate the fundamental constitutional interest protected by ss. 7 and 11 (d).
The appellant did not show that delivering the last address to the jury gives the Crown an inherent advantage over the defence. In addition, the right to full answer and defence does not require that the defendant be entitled to respond to what is put forward in the Crown’s closing address to the jury. The ability to answer what is said by the Crown in its address is not fundamental to the ability to defend oneself effectively against a criminal charge which must be proven, on the facts, beyond a reasonable doubt. The comments of Cory, Iacobucci and Bastarache JJ. on the duty of a trial judge to remedy unfairness caused by an improper jury address were agreed with, as well as their conclusion that no miscarriage of justice arose from the trial judge’s failure to do so in this case.
A right by defence counsel to reply to the Crown’s address cannot be granted under the trial judge’s inherent jurisdiction. Parliament can exclude the inherent jurisdiction with clear and precise statutory language. The French and English texts of ss. 651(3) and (4) of the Code make it clear that Parliament has not left open the possibility that the judge may grant a right of reply under the inherent jurisdiction. Though it may be appropriate in certain cases to make an order under s. 24(1) of the Charter granting a reply, this issue need not be determined in this case.
Per Lamer C.J. and McLachlin, Major and Binnie JJ. (dissenting): An accused has a constitutional right to answer whatever is put against him or her by the Crown, whether in evidence or in argument. He or she cannot fairly be expected to answer a closing address that has not yet been made. Here, the accused’s right to answer what was said to his prejudice by the Crown in its closing address was denied by s. 651 of the Code because of the prior decision of the defence to call witnesses. The right to call evidence and the right to answer the Crown’s attack are both fundamental rights and an accused cannot constitutionally be required to choose between them. The imposition of such an election by s. 651 and the consequent denial of the right to make full answer and defence violated both s. 7 and s. 11 of the Charter .
In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”. While counsel ought to avoid submissions that are not supported by the evidence, most trials turn on disputes about what inferences are in fact supported by the evidence. The accused may be prejudiced where the Crown, having heard the accused’s address to the jury, has the ability to use the right of final address to reorient its argument, build its case on the “gaps” in the address of the accused without fear of the likelihood of reply, and develop a new spin on a piece of evidence whose significance had not been anticipated or addressed by the accused. The Crown’s closing address adds to the jeopardy of the accused and thereby itself attracts the right to full answer and defence. Although the Crown suffers corresponding disadvantages when it is obliged to give the first address, as between the Crown and the defence, the inadequacies of the “two‑speech” approach must be allowed to fall on the Crown. The Crown, unlike the accused, does not enjoy s. 7 Charter rights.
There is a lack of logic in a system that places the ultimate onus of proof of guilt squarely on the Crown, yet requires an accused to answer the Crown’s arguments before they are made. The accused should not be compelled to address what he or she believes to be the prosecution theory, and then be relegated (and even then only in “exceptional cases”) to a reply at the discretion of the trial judge, or to a corrective instruction, where Crown submissions to the jury are misleading or unsupported by the evidence.
The “corrective instruction” alternative suffers from the weakness that the jury would get the “correction” filtered through the eyes of the judge -- not straight from the camp of the accused. If the concept of full answer and defence is to operate effectively in an adversarial system, the “answer” belongs to the adversary, not to the judge.
Defence counsel here did not make a “strategic decision” to ignore the evidence. His problem was not the particular evidence as such, but the specific way in which that evidence was used (or misused) by the Crown after defence counsel had finished his address to the jury. The debate about the tactical advantages of addressing the jury first or last cannot determine the scope of the right to answer, if an accused wishes to do so, the totality of what is put against him or her. Finally, while the decision whether or not to call defence witnesses may be based on a broad mix of strategic considerations, there is no justification for including amongst such considerations the threat of forfeiture of the right to address the jury last. The fact an accused elects to call witnesses should be independent of his or her right subsequently to answer whatever the Crown seeks to use to the accused’s prejudice in closing argument before the jury.
Section 651 is not compatible with the s. 7 rights of an accused person to make full answer and defence. There are structural problems inherent in s. 651 which cannot be brushed aside with the response that s. 7 does not require the fairest of all possible procedures. The accused was required as a condition of calling defence evidence to forfeit his right to answer the Crown’s argument. The breach of s. 7 precipitated a breach of s. 11 (d) fair trial rights. If in the operation of an otherwise constitutional procedure a Charter violation occurs that vitiates a particular trial, a s. 24(1) remedy is available. Where, as here, the unfairness flows from an antecedent s. 7 Charter violation that attaches to the statutory scheme of s. 651 itself, the appropriate remedy is found in s. 52(1) of the Constitution Act, 1982 , not s. 24(1) of the Charter . Accordingly, the remedy must be directed to s. 651 itself. The reasoning in relation to s. 651(3) is applicable mutatis mutandis to s. 651(4) .
The Crown conceded that there was no s. 1 justification for this violation. There is no redeeming merit to justify the requirement that the accused purchase the right to answer the Crown’s closing argument at the expense of giving up his or her right to call evidence.
Cases Cited
By Cory, Iacobucci and Bastarache JJ.
Referred to: R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304, leave to appeal denied, [1987] 1 S.C.R. xv; Reference re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Bartle, [1994] 3 S.C.R. 173; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Krause, [1986] 2 S.C.R. 466; Gray v. Alanco Developments Ltd., [1967] 1 O.R. 597; Raysor v. State, 272 So.2d 867 (1973); R. v. P. (M.B.), [1994] 1 S.C.R. 555; Pisani v. The Queen, [1971] S.C.R. 738; R. v. Munroe (1995), 96 C.C.C. (3d) 431, aff'd [1995] 4 S.C.R. 53; R. v. Neverson (1991), 69 C.C.C. (3d) 80, aff'd [1992] 1 S.C.R. 1014; R. v. Charest (1990), 57 C.C.C. (3d) 312; R. v. Hutchinson (1995), 99 C.C.C. (3d) 88; R. v. F.G., [1994] M.J. No. 732; R. v. Strebakowski (1997), 93 B.C.A.C. 139; R. v. Lifchus, [1997] 3 S.C.R. 320; Grabowski v. The Queen, [1985] 2 S.C.R. 434; R. v. Romeo, [1991] 1 S.C.R. 86; R. v. Michaud, [1996] 2 S.C.R. 458; R. v. Pouliot, [1993] 1 S.C.R. 456, rev’g (1992), 47 Q.A.C. 1; R. v. Osborn, [1969] 1 O.R. 152; Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Young (1984), 46 O.R. (2d) 520.
By L’Heureux‑Dubé J.
Referred to: R. v. Bain, [1992] 1 S.C.R. 91; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Nenadic (1997), 88 B.C.A.C. 81; Baxter Student Housing Ltd. v. College Housing Co‑operative Ltd., [1976] 2 S.C.R. 475; R. v. Keating (1973), 11 C.C.C. (2d) 133; Pisani v. The Queen, [1971] S.C.R. 738.
By Binnie J. (dissenting)
R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Daly (1992), 57 O.A.C. 70; R. v. Gardner, [1899] 1 Q.B. 150; R. v. Coppen (1920), 33 C.C.C. 264; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Martin (1905), 9 C.C.C. 371; R. v. Oakes, [1986] 1 S.C.R. 103; Bailey v. State, 440 A.2d 997 (1982).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), 24(1) .
Constitution Act, 1982, s. 52(1) .
Crimes Act, as amended, 1966 (Australia).
Crimes Act 1961, as amended by Crimes Amendment Act 1966, 1966 (N.Z.) No. 98.
Crimes Act 1976, 1976 (Victoria), No. 8870, s. 417.
Crimes Legislation Amendment (Procedure) Act 1997 (New South Wales), Schedule 1.
Criminal Code, R.S.C., 1985, c. C‑46, s. 651(3) , (4) .
Criminal Code Act 1899, 1899 (Queensland), No. 9, as amended, s. 619.
Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 52.
Criminal Law Consolidation Act, 1935-1975 (South Australia), s. 288.
Criminal Procedure (Right of Reply) Act 1964, 1964 (U.K.), c. 34.
U.S. Federal Rules of Criminal Procedure, Rule 29.1.
Authors Cited
Canada. Law Reform Commission. Report on the Jury. Ottawa: Law Reform Commission, 1982.
Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23.
Lana, Robert E. “Familiarity and the Order of Presentation of Persuasive Communications” (1961), 62 Abn. & Soc. Psychol. 573.
Lawson, Robert G. “The Law of Primacy in the Criminal Courtroom” (1969), 77 J. of Soc. Psychol. 121.
Ontario. The Commission on Proceedings Involving Guy Paul Morin. The Commission on Proceedings Involving Guy Paul Morin: Report (Kaufman Report), vol. 1. Toronto: Ministry of the Attorney General, 1998.
Saks, Michael J., and Reid Hastie. Social Psychology in Court. New York: Van Nostrand Reinhold Co., 1978.
Schultz, D. P. “Primacy‑Recency Within a Sensory Variation Framework” (1963), 13 Psychol. Rec. 129.
Shakespeare, William. Julius Cæsar. The Arden Edition of the Works of William Shakespeare. Ed. by T. S. Dorsch. London: Arden Shakespeare Paperbacks, 1955.
Sopinka, John. “The Many Faces of Advocacy”, [1990] Advocates Soc. J. 3.
Sopinka, John, Sidney Lederman and Alan Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Tanford, J. Alexander. The Trial Process: Law, Tactics and Ethics. Charlottesville, Va.: The Michie Co., 1983.
Tanford, J. Alexander. “An Introduction to Trial Law” (1986) 51 Mo. L. Rev. 623.
Tanford, J. Alexander. “Closing Argument Procedure” (1986), 10 Am. J. Trial Advoc. 47.
White, Robert B. The Art of Trial. Aurora, Ont.: Canada Law Book, 1993.
United Kingdom. Criminal Law Revision Committee. Fourth Report, “Order of Closing Speeches”. Cmnd. 2148. London: H.M. Stationery Office, 1963.
APPEAL from a judgment of the Ontario Court of Appeal (1996), 28 O.R. (3d) 602, 134 D.L.R. (4th) 628, 90 O.A.C. 193, 106 C.C.C. (3d) 402, 47 C.R. (4th) 323, 35 C.R.R. (2d) 229, [1996] O.J. No. 1554 (QL), dismissing an appeal from conviction by Granger J. sitting with jury. Appeal dismissed, Lamer C.J. and McLachlin, Major and Binnie JJ. dissenting. The first and third constitutional questions should be answered in the negative; it was not necessary to answer the second and fourth constitutional questions.
Keith E. Wright and Ralph B. Steinberg, for the appellant.
Michael Bernstein, for the respondent.
Donna Valgardson and Nancy L. Irving, for the intervener the Attorney General of Canada.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
Alexander Budlovsky, for the intervener the Attorney General of British Columbia.
Written submission only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.
The reasons of Lamer C.J. and McLachlin, Major and Binnie JJ. were delivered by
//Binnie J.//
Binnie J. (dissenting) --
I. Introduction
1 In this case, on a charge of second degree murder, Crown counsel addressed members of the jury last, and asked them to draw damaging inferences from the failure of the appellant to deal in his testimony with the presence or absence of blue colouration post mortem in the face of his alleged victim. The appellant, who claimed to be taken by surprise by this aspect of the closing address, asked to respond to the Crown’s attack. The trial judge declined to give him that opportunity. The accused was convicted. My colleagues, Justices Cory, Iacobucci and Bastarache, at para. 109, state that:
The enterprise of defending oneself against a criminal charge does not intrinsically imply a temporal order of speaking, with the accused “answering” the Crown’s jury address with a jury address in reply.
2 In my view, an accused does have a constitutional right to answer whatever is put against him by the Crown, whether in evidence or in argument. He cannot fairly be expected to answer a closing address that has not yet been made. The appellant’s right to answer what was said to his prejudice by the Crown in its closing address was denied in this case by s. 651 of the Criminal Code, R.S.C., 1985, c. C-46 , because of the prior decision of the defence to call witnesses for the defence. The right to call evidence and the right to answer the Crown’s attack are both fundamental rights and an accused cannot constitutionally be required to choose between them. In my view, the imposition of such an election by s. 651 and the consequent denial of the right to make full answer and defence violated both s. 7 and s. 11 of the Canadian Charter of Rights and Freedoms .
II. Facts
3 The facts are analysed in the reasons of my colleagues and I will not repeat them here, except where it is desirable to do so for purposes of emphasis.
4 The accused was charged with the murder of his mother. He testified that he happened upon her unconscious body in the family home. The prosecution’s position at trial was that the son had strangled the mother. There was a considerable body of evidence in support of the Crown’s theory. The appellant, however, denied killing his mother and testified that she had taken her own life by hanging herself. The defence pointed to her history of depression and suicide attempts. The appellant testified that when he innocently discovered her unconscious body in the home he panicked and disposed of it to make it look as if she had disappeared. He was afraid that in light of the known tensions between him and his mother he would be falsely blamed for her death, he said.
5 Evidence was called that the mother suffered suicidal tendencies. Her employer, neighbour and former companion Peter Martin, who was unrelated to the appellant, testified that the mother was generally an unhappy person who kept to herself a great deal, and who suffered from extreme depression from time to time. He was aware of three prior suicide attempts by her. In the early 1980s, Martin had found her asleep in her bedroom with an empty pill bottle nearby. She recovered, however, without hospitalization. In the mid-1980s, Martin was called to the Rose residence by the appellant. Martin found the mother to be mumbling incoherently, with an empty pill bottle nearby. She was hospitalized for about one week. In September, 1989, Martin went to visit the mother and found her in her bedroom, again mumbling incoherently and “quite a mess physically”. She was admitted to hospital for about one week. She was very depressed and reclusive prior to making each of these three suicide attempts.
6 Much of the expert testimony was consistent with both the theory of the Crown and the theory of the defence. Both sides called forensic pathologists. Both experts testified that the cause of death was soft asphyxiation. Both experts believed that this could have resulted from either strangulation with a soft ligature (the Crown theory) or soft hanging (the defence theory).
Emergence of the “Blue-Face” Evidence
7 The defence’s expert, Dr. Jaffe, was the last witness for the defence. Towards the conclusion of the Crown’s cross-examination, Dr. Jaffe was asked about facial colouration, as follows:
Q. A[mi]d the situations where there is a soft hanging, is it sometimes the case that the head and face, with the ligature still around the neck, becomes congested and blue . . . if I may use that?
A. Blue . . . .
Q. And is that in some cases, in most cases or . . . .?
A. Well a ligature around the neck which constricts the veins produces a purple/blue face above the ligature, but if after death or shortly after death the ligature is removed, blood drains back from the head and neck . . . . as long as the blood is still flowing . . . . and by the time the pathologist sees the person there may be no blue face any more.
. . .
Q. But that blueness in the face would certainly be visible at the time one came upon this person with the ligature still around the neck, would that be generally the case?
A. Well certainly, a reasonably skilled observer would notice it, yes.
Q. Is this something that’s localized or generally observable throughout the face?
A. It usually involves the entire head above the ligature. [Emphasis added.]
8 The Crown did not ask, and the defence did not pursue in re-examination, whether Dr. Jaffe’s reference to a “reasonably skilled observer” could include the appellant. The Crown initiated the topic of facial colouration. There was no suggestion the appellant had any medical training or medical skills. Nobody asked the appellant at the time he gave his evidence whether in fact he had noticed a blue colouration. Dr. Jaffe’s testimony ended the evidentiary phase of the trial.
The Jury Addresses
9 Counsel for the defence, despite having called evidence, applied to the trial judge to be allowed to address the jury last. This request was denied, and predictably so in light of the prior Ontario Court of Appeal ruling in R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304. In accordance with s. 651(3) of the Code, counsel for the defence then addressed the jury, anticipating what he expected to be the Crown’s arguments. He failed to anticipate or in any event he failed to deal with the “blue-face” evidence of Dr. Jaffe.
10 In the final closing address counsel for the Crown asked the jury to draw an adverse inference from the failure of the appellant to testify about whether the face of his deceased mother was blue when discovered. The Crown’s innuendo was that there was no blue colouration and no suicide. Ergo, death should be attributed to strangulation by the appellant, and a verdict of guilty returned. The Crown’s argument was in part as follows:
An interesting point though in Doctor Jaffe’s evidence . . . [was that] in a soft hanging you’d expect that if the ligature’s still around the neck to see a blue face. That’s as I recall the evidence. You’ll have to determine that yourself; and that would eventually disappear once the ligature was removed, but it wouldn’t be immediate, and it would be less immediate if the body were in a horizontal position. The accused tells you the mother’s in a normal sitting position in a chair after the supposed hanging; a blue face is something surely that he would have noticed and told us about. He tells you nothing about that however, other than the cable around her neck and her sitting normally in the chair. Would he not have told you that if indeed that were present, as it should have been if it happened this way? And that’s another point I submit to you that points to the fictional setting that the accused has created. [Emphasis added.]
11 Later, and more theatrically, Crown counsel used the “blue-face” evidence to pour scorn on the supposed play acting of the appellant. Crown counsel suggested to the jury that the appellant was of superior intelligence and had during the trial orchestrated truths and lies to his own advantage. Crown counsel likened the trial to a stage play in which the appellant not only had a starring role, but also was producer, director and stage manager. He suggested that the trial was a “new production” which had “opened last Friday” when the appellant testified. He argued that the appellant “rehearsed himself well but sometimes he blows his lines”, giving the example of the appellant’s failure to mention the blue face.
12 The trial judge denied the appellant’s application for leave to answer the Crown’s “spin” on the blue-face evidence. Defence counsel’s secondary position was that the jury ought to be instructed by the trial judge as to the totality of the evidence on the “blue-face” issue, in particular: the “reasonably skilled observer” limitation; the fact that the blood would drain from the head within minutes of the ligature’s being loosened; and the fact that the issue was never put to the appellant in chief or in cross-examination. The trial judge noted the objection but ruled that defence counsel was not entitled to reply to the address of the Crown and stated that he did not intend to mention the “blue-face” evidence in his charge to the jury.
13 The jury returned a verdict of guilty on a charge of second degree murder. The trial judge sentenced the appellant to life in prison with no eligibility for parole for 12 years.
III. Analysis
14 The precise question in this appeal is whether the appellant had a constitutional right to answer the argument as well as the evidence put against him by the Crown and if so, whether that right could constitutionally be taken away from him because of his decision to call witnesses for the defence.
15 I shall first address this threshold question, then canvass the various rationalizations for the present procedure identified by my colleagues, then offer some observations about how these problems are handled in criminal trials in jurisdictions comparable to our own, and finally offer a negative opinion about the constitutionality of s. 651 of the Code.
Does the Right of an Accused to Make Full Answer and Defence under s. 7 of the Charter Apply to the Crown’s Closing Address as well as to the Crown’s Evidence?
16 The appellant says that the procedure at trial deprived him of his liberty otherwise than in accordance with “the principles of fundamental justice” within the meaning of s. 7 of the Charter , and consequently that he was denied his s. 11 (d) fair trial rights. It is common ground that s. 7 incorporates procedural fairness as an element of fundamental justice and in particular the right to make full answer and defence; see Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505.
17 The appellant’s position is straightforward. The result of a successful prosecution is to secure a conviction and put him in jail. The conduct of Crown counsel, within the limits of his or her professional and ethical responsibilities, is calculated to bring about that result from the opening of the trial until completion of the closing address. In this case Crown counsel, speaking last, drew from the expert’s testimony an inference which the expert himself was not asked to make, and did not make __ namely that the appellant was a reasonably skilled observer who would have noticed a blue colouration had his mother in fact committed suicide. The appellant simply says that whatever it is the Crown uses to secure a conviction is something that he ought to be allowed to answer, if he has an answer, irrespective of whether it is put before the jury as evidence or argument. I agree with him.
18 While it would be comforting to think that in a criminal trial facts speak for themselves, the reality is that “facts” emerge from evidence that is given shape by sometimes skilful advocacy into a coherent and compelling prosecution. The successful prosecutor downplays or disclaims the craftsmanship involved in shaping the story. Such modesty should be treated with scepticism. The rules of “prosecutorial” advocacy have not changed much since Shakespeare put a “just the facts” speech in the mouth of Mark Antony:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech
To stir men’s blood; I only speak right on.
I tell you that which you yourselves do know,
Show you sweet Cæsar’s wounds, poor poor dumb mouths,
And bid them speak for me.
Julius Cæsar, Act III, Scene ii.
19 While few counsel would claim Shakespearean powers of persuasion, the fact remains that in an age burdened with “spin doctors” it should be unnecessary to belabour the point that the same underlying facts can be used to create very different impressions depending on the advocacy skills of counsel. In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”. As was pointed out by the late Justice John Sopinka, in “The Many Faces of Advocacy”, in [1990] Advocates’ Soc. J., 3, at p. 7:
Notwithstanding that your witnesses may have been reticent and forgetful, and your cross-examinations less than scintillating, the case can still be won in final argument.
20 The accused may be prejudiced where the Crown, having heard the accused’s address to the jury, has the ability to use the right of final address to reorient its argument, build its case on the “gaps” in the address of the accused without fear of the likelihood of reply, and develop a new spin on a piece of evidence whose significance had not been anticipated or addressed by the accused. While my colleagues suggest that this does not imply a “temporal order of speaking” (at para. 109), it seems to me implicit in the notion of an “answer” that what is to be answered comes first.
21 As this case demonstrates, Crown counsel’s address is capable of adding new elements apart from narrative coherence and rhetorical force to the evidence against the accused. As here, the jury may be invited to draw specific inferences from the evidence which may or may not be appropriate and in any event appear to have eluded counsel for the accused.
22 It is true, as my colleagues point out in para. 107, that Crown counsel (and indeed other counsel) should be accurate and should not put before the jury “assertions in relation to which there is no evidence”. However, while Crown counsel are expected to be ethical, they are also expected to be adversarial. As the Ontario Court of Appeal itself observed in R. v. Daly (1992), 57 O.A.C. 70, at p. 76:
A closing address is an exercise in advocacy. It is a culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhe