R. v. P. (M.B.)

R. v. P. (M.B.)
Collection
Supreme Court Judgments
Date
1994-04-14
Report
[1994] 1 SCR 555
Case number
23088
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23088
Decision Content
R. v. P. (M.B.), [1994] 1 S.C.R. 555
Her Majesty The Queen Appellant
v.
M.B.P. Respondent
Indexed as: R. v. P. (M.B.)
File No.: 23088.
1993: November 12; 1994: April 14.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Sexual offences ‑‑ Time of offence ‑‑ Reopening of Crown's case ‑‑ Complainant and her mother testifying that alleged assaults occurred in 1982 ‑‑ Crown closing its case ‑‑ Defence announcing intention to call alibi witness ‑‑ Crown recalling complainant's mother to establish that alleged assaults occurred in 1983 ‑‑ Whether trial judge erred in permitting Crown to reopen case ‑‑ Whether trial judge erred in permitting Crown to amend indictment.
The accused was charged with indecent assault of his niece and with having sexual intercourse with her when she was under the age of 14. The complainant had initially reported that the sexual assaults occurred in 1980. An information was drafted and the accused was arrested. He was informed that the incidents of which he was being accused had occurred when he was living at the complainant's house. After being cautioned and given his right to counsel, he made several inculpatory statements to the arresting officers. Following the preliminary inquiry, the information was amended to allege that the incidents had occurred between January 1, 1982 and January 1, 1983. The complainant, who was 16 at the time of the trial, testified that the accused had lived at her parents' house for a month or two in the summer of 1982 when she was eight and that while her parents were away for a weekend, he sexually assaulted her. She stated that she and her mother had gone through old photographs which had helped them determine the relevant time frame. Her mother testified that the accused had lived with the family for two months in the summer of 1982, and that he had baby‑sat her daughter during a van trip in July of that year. The Crown closed its case and the trial was adjourned. Prior to adjourning, defence counsel stated in open court that he would be calling three witnesses, including an alibi witness. When the trial resumed the Crown successfully applied to reopen its case and recall the complainant's mother. She testified that she had been mistaken and that she now realized that the accused had stayed with the family in the summer of 1983, not the summer of 1982. The Crown was then granted leave to amend the indictment to extend the time frame to include 1983. The accused testified that he had lived with the complainant's family during the summer of 1983. He was convicted of both counts. The Court of Appeal found that the Crown should not have been permitted to reopen its case or amend the indictment. It quashed the convictions. The Crown appeals to this Court only in respect of the acquittal on the sexual intercourse charge, the amendment to the indictment having resulted in a time frame extending beyond the repeal of the offence of indecent assault.
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The trial judge committed a reversible error in allowing the Crown's case to be reopened after the accused had begun to answer the case against him by revealing that he would be calling three witnesses. The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will be prejudiced in his or her defence. A trial judge's discretion in this regard must be exercised judicially and with a view to ensuring that the interests of justice are served. Traditionally, the stage reached in a proceeding has been treated as correlative to prejudice and injustice to the accused. Before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Once the Crown actually closes its case but before the defence elects whether or not to call evidence, the test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversight or inadvertent omission by the Crown in the presentation of its case, provided of course that justice requires it and there will be no prejudice to the defence. After the Crown has closed its case and the defence has started to answer the case against it, a court's discretion is very restricted, and it is only in the narrowest of circumstances that the Crown will be permitted to reopen its case. Allowing the Crown's case to be reopened after the defence has started to meet that case would undermine the guiding principle against self‑incrimination. This Court's decision in Robillard, with its more generous approach to a trial judge's discretion over reopening, even after the defence has closed its case, must be narrowly construed as applying only to situations where the Crown is seeking to reopen in order to correct a matter of form.
This is an appropriate case in which to interfere with the trial judge's exercise of discretion to allow the Crown to reopen its case. Not only had the defence started to meet the Crown's case by declaring its intention to call evidence, but the mother's fresh evidence had the effect of changing the case which the accused had committed himself to answering. Reopening in this case was contrary to the interests of justice and prejudicial to the accused because it violated, indirectly, the fundamental tenet of our criminal justice system that an accused must not be conscripted against himself. It is unnecessary to consider whether the trial judge erred in allowing the amendment to the indictment.
Per L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The reopening of the case was properly allowed by the trial judge, as was the amendment to the indictment. Neither of these procedural incidents altered the case which the accused had to answer, since he had been made aware at the time of his arrest that the relevant period during which he was alleged to have sexually assaulted the complainant was when he was living at her parents' house, and the accused thus could not have suffered any prejudice of any kind. A trial judge has wide discretion to allow the reopening of the case and such discretion, as long as it is exercised in a manner which does not result in injustice or prejudice to the parties, should not be interfered with. Although in certain circumstances it may be more likely that prejudice will arise if the case is reopened later rather than earlier in the trial, this Court's decision in Robillard definitely eliminated the distinction between cases where the reopening is sought prior to and those where it is sought after the defence has started to answer the case against it, where no prejudice is demonstrated. Here there was no prejudice or denial of full answer and defence in depriving the defence of the opportunity of relying on an irrelevant detail, the dates of the offences, by allowing the Crown to submit fresh evidence which did not change the essential features of the case which the defence had to meet. The key to this flexibility is rooted in B. (G.), where this Court recognized the difficulties of pinpointing the exact date of sexual assaults against children and the need to accommodate this difficulty in our criminal justice system. In light of the context of child sexual abuse and the difficulty that children have in determining exact dates and times of occurrences, courts must not unduly limit and complicate the trial judge's discretion to reopen the case with inordinate technicalities. Here there was no actual prejudice to the defence. While there must be great value placed on the right of an accused to silence and the presumption against self‑incrimination, these rights have not been violated in this case.
Section 601 of the Criminal Code specifically confers on a trial judge the discretion to permit an amendment to the indictment in the absence of prejudice and codifies the common law rule that the date of an offence need not be proven unless it is an essential element of the offence. There is no vested right to a given alibi, and the availability of a particular defence is no bar to the application of s. 601 , which was enacted to avoid having technicalities impair the truth‑seeking function of the courts. The amendment sought by the Crown here was precisely for those reasons and fell squarely within the discretion of the trial judge, who was in the best position to assess whether or not the accused was or could be prejudiced by the amendment.
Per La Forest and McLachlin JJ. (dissenting): The trial judge did not err in allowing the Crown to reopen its case and amend the indictment. While the later the stage at which an application to amend an indictment is made, the greater the chance for injustice to the accused, the discretion of the trial judge is to be exercised in the interests of justice ‑‑ which would comprise consideration of both the interests of the accused and those of the public, including in the latter those of the victim. Here the interests of the accused were not prejudiced. The accused knew before the reopening of the case that the incident had taken place when he resided with his niece, and thus knew exactly the case he had to meet from the beginning. The difficulty of children pinpointing the exact time of incidents which have occurred several years before, but which they are able to define in terms of other contemporaneous matters, should be underlined.
Cases Cited
By Lamer C.J.
Considered: Robillard v. The Queen, [1978] 2 S.C.R. 728; referred to: R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. W. (R.), [1992] 2 S.C.R. 122; Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399; R. v. Kishen Singh (1941), 76 C.C.C. 248; R. v. Cachia (1974), 17 C.C.C. (2d) 173; R. v. Dunn, [1970] 3 C.C.C. 424; R. v. Champagne, [1970] 2 C.C.C. 273; Crawford v. The Queen (1984), 43 C.R. (3d) 80; Kissick v. The King, [1952] 1 S.C.R. 343; R. v. Huluszkiw (1962), 37 C.R. 386; R. v. Assu (1981), 64 C.C.C. (2d) 94; R. v. Day (1940), 27 Cr. App. R. 168; R. v. Pilcher (1974), 60 Cr. App. R. 1; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Nelson, [1993] O.J. No. 1899 (QL).
By L'Heureux‑Dubé J. (dissenting)
Vézina v. The Queen, [1986] 1 S.C.R. 2; R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Khan, [1990] 2 S.C.R. 531; R. v. W. (R.), [1992] 2 S.C.R. 122; Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. Kishen Singh (1941), 76 C.C.C. 248; R. v. Huluszkiw (1962), 37 C.R. 386; R. v. Assu (1981), 64 C.C.C. (2d) 94; R. v. Champagne, [1970] 2 C.C.C. 273; Thatcher v. The Queen, [1986] 2 W.W.R. 97, aff'd on other grounds, [1987] 1 S.C.R. 652; R. v. Karens, [1986] B.C.J. No. 2165 (QL); Protection de la jeunesse ‑‑ 449, [1990] R.J.Q. 2367; R. v. Scott (1984), 79 Cr. App. R. 49; R. v. Pilcher (1974), 60 Cr. App. R. 1; R. v. Dossi (1918), 13 Cr. App. R. 158.
By La Forest J. (dissenting)
R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Tremblay, [1993] 2 S.C.R. 932.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c), (d), 13 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 146(1), 149(1) [rep. 1980‑81‑82‑83, c. 125, s. 8], 529(4).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 153(1) , 601(2) [rep. & sub. c. 27 (1st Supp.), s. 123(1) ], (4), (4.1) [ad. idem, s. 123(3) ].
Authors Cited
Bala, Nicholas, and Martha Bailey. "Canada: Recognizing the Interests of Children" (1992‑93), 31 J. Fam. L. 283.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children, vol. 1. Ottawa: Minister of Supply and Services Canada, 1984.
Canada. Department of Justice, Research Section. Sexual Assault Legislation in Canada: An Evaluation (Report No. 5). Ottawa: Department of Justice Canada, 1990.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 2nd ed. Aurora, Ont.: Canada Law Book, 1987 (loose‑leaf).
Hor, Michael. "The Privilege against Self‑Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35.
McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose‑leaf).
Paciocco, David M. Charter Principles and Proof in Criminal Cases. Toronto: Carswell, 1987.
APPEAL from a judgment of the Ontario Court of Appeal (1992), 9 O.R. (3d) 424, 72 C.C.C. (3d) 121, 13 C.R. (4th) 302, 54 O.A.C. 62, allowing the accused's appeal from his convictions for indecent assault and sexual intercourse with a female under the age of 14. Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Gary T. Trotter, for the appellant.
Julian N. Falconer and Richard Macklin, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. -- This case raises the question of whether, in circumstances where the defence has started to answer the case against it by announcing that it will be calling evidence, it is an appropriate exercise of a trial judge's discretion to allow the Crown's case to be reopened in order to recall a witness so she can correct her earlier testimony.
I. Facts
The respondent was charged with indecent assault of his niece contrary to s. 149(1) (now repealed) and with having sexual intercourse with her when she was under the age of 14 years contrary to s. 146(1) (now s. 153(1) ) of the Criminal Code, R.S.C. 1970, c. C-34.
The complainant was 16 years old at the time of the trial. She testified that the respondent had resided at her parents' home in the summer of 1982 for one or two months when she was eight years old and that, on one occasion, while her parents were away for a weekend with their van club, she was left alone in the care of the respondent. On both nights during the absence of her parents, the respondent sexually assaulted her while she was in bed. The complainant further testified that about one week before the "van club weekend", the respondent had sexually assaulted her while her mother was asleep. She described the last assault as having taken place a few months later, when the respondent was no longer staying at her parents' house and her aunt came to baby-sit.
The complainant, who first spoke of these sexual assaults in 1989 when she was 15 years old, initially reported that the sexual assaults had occurred in 1980. An information was drafted and the respondent was arrested on August 11, 1989. After being cautioned and given his right to counsel, the respondent made several inculpatory statements to the arresting officers. At the time of his arrest, the respondent was informed by the police that the incidents of which he was being accused had occurred when he was living at the complainant's house.
The information sworn on the day of the respondent's arrest described the period of the alleged assaults as being between January 1, 1980 and January 1, 1981. However, after the preliminary inquiry, the information was amended, on consent, to allege that the incidents had occurred between January 1, 1982 and January 1, 1983. At trial, the complainant testified that all the incidents had occurred in 1982, stating that she and her mother had gone through old photographs which had helped them determine the relevant time frame. The complainant's mother was also called by the Crown and she testified that the respondent had lived with the family for two months in the summer of 1982, and that the respondent had baby-sat her daughter during a van trip to Rochester, New York, in July of 1982.
The Crown closed its case and the trial was adjourned to accommodate the defence, which had not received disclosure of oral inculpatory statements made by the respondent to the police. Prior to adjourning, defence counsel stated in open court that he would be calling three witnesses, including an alibi witness, and the Crown indicated the defence's undertaking to provide him with the particulars of the alibi evidence.
When the trial resumed approximately five weeks later, the Crown applied to reopen its case and recall the complainant's mother with respect to new evidence pertaining to the dates of the offences. Over the defence's objection, he was permitted to do so. The mother testified that she had been mistaken as to the year in which the respondent stayed with the family, and that she now realized the proper time frame was the summer of 1983, not the summer of 1982. The alibi evidence was to have been that the respondent had been confined to a hospital during the relevant time period in the summer of 1982.
The Crown then moved to have the indictment amended to extend the period during which the sexual assaults were alleged to have occurred to include the year 1983. Over the defence's objection, leave to amend was granted and the time frame described in the indictment became January 1, 1982 to January 1, 1984. After a further adjournment, the respondent was called and he testified that he had lived with the complainant's family during the summer of 1983.
The respondent was found guilty of indecent assault and of having sexual intercourse with his niece when she was under the age of 14. The Court of Appeal, however, allowed the respondent's appeal, quashed the convictions and entered an acquittal: (1992), 9 O.R. (3d) 424, 72 C.C.C. (3d) 121, 13 C.R. (4th) 302, 54 O.A.C. 62. The Crown appeals to this Court only in respect of the acquittal entered on count two (the charge of sexual intercourse contrary to s. 146(1)), and not with respect to count one (the charge of indecent assault contrary to s. 149(1)). This is because the amendment to the indictment resulted in a time frame which extended beyond the point when s. 149(1) was still in force.
II. Judicial History
Ontario Court, General Division (DiSalle J.)
After hearing argument from both sides, the trial judge allowed the Crown to reopen its case in order to recall the complainant's mother with respect to new evidence pertaining to the dates in the indictment.
With respect to the Crown's subsequent application for amending the indictment, the trial judge relied on the principles established in R. v. B. (G.), [1990] 2 S.C.R. 30, and stated that "there is always difficulty of pinpointing the exact date because of the age of these complainants in trying to remember the time", and that
. . . the incidences are not changed, we are talking here of people trying to recall a certain date by certain events and the young complainant related it to the van trip. Somebody has made a mistake in the summer of the van trip. I do not believe that this will prejudice the accused in amending that date.
In finding the respondent guilty of the offences charged, the trial judge concluded that:
Although the evidence of the complainant was confusing as to the actual dates, I find that her evidence related to the time and place that the accused lived there. . . .
I accept the complainant's evidence as to the time and place and I accept Mrs. P.'s evidence as to the time and place and her method of recalling it as she thought about it and found pictures and related to that time period.
I further accept Constable Rollin's evidence that she related to the accused that the alleged offences took place at 26 Bay Road and during the time the accused lived there.
Court of Appeal for Ontario (1992), 9 O.R. (3d) 424 (Finlayson J.A. for the court)
Although the appeal before the Court of Appeal concerned only the trial judge's ruling permitting the Crown to amend the indictment, Finlayson J.A. also considered the propriety of allowing the Crown to reopen its case in the circumstances. He observed that it was only in view of the evidence of alibi that it became necessary for the Crown to reopen its case so that it could adduce fresh evidence which made the alibi irrelevant. He held that the Crown should not have been permitted to reopen its case. The trial judge should have heard the alibi evidence and decided the case as the Crown had defined it. Finlayson J.A. explained (at pp. 431-32):
I do not wish to place this opinion on too narrow a basis. My objections are to the reopening of the Crown's case and to the amendment of the indictment. My reasons in both cases relate to prejudice. I do not see how the Crown can be permitted to recast its case when faced with an alibi, the accuracy of which it was not prepared to dispute. The defence went into a trial where the Crown had originally alleged offences in the year 1980. The year was changed to 1982. The [respondent's] defence was a denial bolstered by an alibi which the defence could establish independently of the [respondent's] evidence. Consequently, once the time frame was changed to include the year 1983, an adjournment could not have assisted the [respondent]. He had lost the ability to put forward an independent assertion of his innocence to the charge as contained in the indictment. In charges of sexual assault against very young children, the accused is often reduced to his own denial as a defence. The loss of an independent alibi is, therefore, a very serious loss indeed.
On the amendment issue, Finlayson J.A. noted that prejudice to the accused is provided for in s. 529(4) (now s. 601(4)) of the Criminal Code . He stated that in B. (G.), supra, the Supreme Court of Canada recognized that the availability of an alibi is a significant consideration in assessing prejudice to an accused. He relied on the conclusion in B. (G.) (at p. 53) that, " [i]f the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained", to find the year in which the offences were alleged to have occurred as being crucial to the defence. He stated (at p. 433) that "[t]he defence was positioned to respond to the case as pleaded and led by the Crown. Accordingly, in my opinion, the prejudice to the [respondent] arising from the amendment to the indictment was total, and the learned trial judge was in error in granting the amendment".
Finlayson J.A was of the view that the respondent was denied a significant procedural safeguard in that the case against him was materially changed to an altogether different case after he had announced his defence and the Crown had closed its case. He suggested that amendments during a trial should not be encouraged because they usually work to the prejudice of the accused. He concluded that the conviction could not stand, and accordingly allowed the appeal, quashed the conviction and entered an acquittal.
III. Points in Issue
1.Did the Court of Appeal for Ontario err in determining that the trial judge had erred in permitting the Crown to reopen its case?
2.Did the Court of Appeal for Ontario err in concluding that the trial judge had erred in permitting the Crown to amend the indictment?
IV. Analysis
Introduction
This case is, fundamentally, about the reopening of the Crown's case and not about the amendment to the indictment. I am not convinced that the respondent suffered any irreparable prejudice by the mere fact of the amendment to the dates specified in the indictment. However, the respondent was prejudiced by the trial judge's decision to allow the Crown's case to be reopened after the respondent had begun to answer the case against him by revealing that he would be calling three witnesses. Therefore, I am satisfied that the trial judge committed a reversible error at the reopening stage, before the Crown moved to amend the indictment.
The reason it was not the amendment in itself but the reopening which created the injustice is that, on the facts as found by the trial judge, the respondent knew what was alleged against him from the outset. He had been made aware at the time of his arrest that the relevant period during which he was alleged to have sexually assaulted the complainant was when he was living at her parents' house. I am inclined to think that, up until the point when the Crown closed its case, the dates in the indictment could have been amended so as to make them conform with the period during which the respondent was living with the complainant's family. In this regard, I would simply note that courts, including this one, have accepted that, in cases involving offences and particularly sexual offences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary: B. (G.), supra, at p. 53; also see R. v. W. (R.), [1992] 2 S.C.R. 122, at pp. 132-34, and Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399 (Ont. C.A.), at p. 403.
The fact that an accused may have an alibi for the period (or part of the period) described in an indictment does not necessarily or automatically "freeze" the dates specified in that indictment. That is to say, there is no vested right to a given alibi. Alibi evidence must respond to the case as presented by the Crown, and not the other way around. Section 601(4) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 529(4) ), directs a trial judge to consider certain factors in deciding whether to allow an indictment to be amended, including whether an accused has been misled or prejudiced and whether an injustice might result. It reads as follows:
601. . . .
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count thereof under subsection (3), consider
(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
Nowhere does s. 601(4) say that inability to rely on a particular defence is co-extensive with irreparable "prejudice" or "injustice", and nor can this be inferred from the language of the provision. Rather, such matters are properly left to the trial judge to consider in the particular circumstances of a case.
In any event, this appeal can be disposed of on the basis that the reopening of the Crown's case was in error, without considering the issue of amendment. At the point when the Crown moved to reopen its case, there was no basis in the evidence for the Crown to apply for an amendment. The indictment conformed with the evidence which, up to that point, had been that the alleged sexual assaults had occurred in July of 1982. The reopening of the Crown's case to recall the complainant's mother and have her correct her earlier testimony as to dates was, therefore, a condition precedent to the amendment which the Crown subsequently sought. I have concluded that, given the advanced stage reached in the proceedings, the Crown should not have been allowed to reopen its case in order to justify the subsequent amendment to the indictment.
The Principles Governing Reopening
The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense -- that is, will be prejudiced in his or her defence. A trial judge's exercise of discretion to permit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice are served.
Traditionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused. That is, a court's discretion with respect to reopening will be exercised less readily as the trial proceeds. The point is illustrated by taking the following three stages in a trial:
(1)before the Crown closes its case,
(2)immediately after the Crown closes its case but before the defence elects whether or not to call evidence (most commonly, this is where the defence has moved for a directed verdict of acquittal for failure by the Crown to prove some essential ingredient of its case), and
(3) after the defence has started to answer the case against it by disclosing whether or not it will be calling evidence.
In the first phase, before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the recalled witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck.
Once the Crown actually closes its case and the second phase in the proceeding is reached, the trial judge's discretion to allow a reopening will narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences will heighten. The test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversight or inadvertent omission by the Crown in the presentation of its case, provided of course that justice requires it and there will be no prejudice to the defence.
Lastly, in the third phase after the Crown has closed its case and the defence has started to answer the case against it (or, as in much of the case law, the defence has actually closed its case), a court's discretion is very restricted and is far less likely to be exercised in favour of the Crown. It will only be in the narrowest of circumstances that the Crown will be permitted to reopen its case. Traditionally, an ex improviso limitation was said to apply to this stage of the proceeding; that is, the Crown was only allowed to reopen if some matter arose which no human ingenuity could have foreseen. At this late stage, the question of what "justice" requires will be directed much more to protecting the interests of the accused than to serving the often wider societal interests represented by the Crown, the latter being a more pressing consideration at the first and, to a lesser extent, the second phase.
The classic Canadian authority which drew this temporal distinction in the principles which were to govern reopening was R. v. Kishen Singh (1941), 76 C.C.C. 248 (B.C.C.A.). There, the Crown inadvertently omitted to prove a proclamation bringing into force the statute constituting the offence. At the close of the Crown's case, the defence moved for a directed verdict. The trial judge dismissed the motion and allowed the Crown to reopen its case to allow the proclamation to be proved. No evidence was called by the defence and the jury found the accused guilty.
The majority of the Court of Appeal in Kishen Singh refused to interfere with the trial judge's exercise of discretion and dismissed the appeal on the ground that the accused had suffered no prejudice. Macdonald C.J.B.C., however, insisted that the decision should be confined to the facts before the court, noting that the case did not deal with an application to reopen after the conclusion of the whole case or after the defence was closed. In his concurring judgment, Sloan J.A. explained at p. 251:
That discretion [to reopen] when exercised before the accused has entered upon his defence is subject to the limitation that its exercise must be in the interests of justice and the accused be not prejudiced thereby. When at a later stage of the case, that is to say, after the defence has given its evidence, then as was held by this Court in R. v. Marsh, [1941] 1 D.L.R. 431 . . ., following R. v. Day (1940), 27 Cr. App. R. 168, the discretion ought not to be exercised except in a case where some matter arises ex improviso which no human ingenuity could have foreseen.
While the strict ex improviso limitation imposed on reopening after the defence had closed its case may, as such, no longer apply (see Robillard v. The Queen, [1978] 2 S.C.R. 728), I view it to be self-evident that a court's discretion to permit the Crown's case to be reopened where an accused has started to meet the case against him or her must be severely curtailed.
While I do not propose to provide an exhaustive review of the jurisprudence in the area, I believe that the authorities on reopening show clearly that courts have always attached great significance to the stage reached in the proceeding, drawing a particularly sharp distinction between the point at which the Crown has closed its case and the defence has simply moved for a directed verdict (the second phase described above), and the point at which the defence has closed its case (the third phase). A few examples serve to illustrate this point.
In R. v. Cachia (1974), 17 C.C.C. (2d) 173 (Ont. H.C.), the accused was charged with resisting a peace officer on July 24. In giving their evidence in chief, the Crown witnesses related the incident to July 23. After the Crown closed its case, the defence moved for dismissal. The trial judge allowed the Crown witnesses to be recalled and to correct their error as to the date. The accused was convicted. In dismissing the appeal, Grant J. applied the rule that, when the Crown at the conclusion of its case has inadvertently failed to prove a necessary ingredient of the offence charged, a court has the discretion, so long as justice requires it, to permit the case to be reopened to enable the Crown to supply the necessary proof. In obiter, however, Grant J. twice underlined the fact that his conclusion would be different if the defence had elected to call no evidence, closed its case and then moved for a dismissal of the charge (at p. 175).
The significance of the caveat in Cachia becomes clearer when one considers R. v. Dunn, [1970] 3 C.C.C. 424 (B.C.S.C.), which also involved a mistake as to dates. In that case, the information alleged that the offence of failing to remain at the scene of an accident had occurred "on or about the 16th day of March". However, the Crown asked two of its witnesses to relay what had happened on the "16th of May", and the witnesses, not noticing the Crown's mistake, related the events of March 16. After the Crown closed its case, the accused elected not to call any evidence and moved for a dismissal of the charge on the ground of insufficient evidence to support a conviction for the offence alleged. The magistrate, however, granted leave to the Crown to reopen its case and recall the two witnesses (both of whom had been in the courtroom and heard the argument as to dates) to correct the mistake. The defendant was convicted. In quashing the conviction on the basis that the magistrate had erred in law in permitting the Crown to reopen, Munroe J. stated (at pp. 425-26):
It is settled law . . . that a Court has a discretion -- which must be exercised judicially -- to allow the Crown to reopen its case in appropriate circumstances and that such discretion ought to be exercised in favour of the Crown where, through inadvertence, the Crown has failed to prove an essential ingredient of the crime charged, provided that justice requires it and that there will be no prejudice to the defence . . ., but no authority was cited to me, and I know of none, which supports the proposition that after the Crown has called evidence to prove that the crime alleged in the information occurred on a certain date, it should be allowed, after the defence has closed its case and made a submission, to reopen its case for the purpose of recalling a witness to change his testimony upon a vital point. [Emphasis added.]
Notwithstanding the importance which has historically attached to the stage reached in the trial proceeding and the fact that a court's discretion to permit the Crown's case to be reopened is highly restricted once the defence starts to answer the case against it, it is true that the strict ex improviso rule is no longer applied in Canada. However, the circumstances in which the Crown may be allowed to reopen at this stage are very narrow. The two most common examples are where
(1)the conduct of the defence has either directly or indirectly contributed to the Crown's failure to adduce certain evidence before closing its case: R. v. Champagne, [1970] 2 C.C.C. 273 (B.C.C.A.); Crawford v. The Queen (1984), 43 C.R. (3d) 80 (Ont. Co. Ct.); and
(2)the Crown's omission or mistake was over a non-controversial issue to do with purely formal procedural or technical matters, having nothing to do with the substance or merits of a case: Kissick v. The King, [1952] 1 S.C.R. 343; Robillard, supra; Champagne, supra; R. v. Huluszkiw (1962), 37 C.R. 386 (Ont. C.A.); R. v. Assu (1981), 64 C.C.C. (2d) 94 (B.C.C.A.).
While I do not propose to review each one of the cases cited in support of the above two propositions, a few of the cases are worth considering.
For instance, R. v. Huluszkiw, supra, is helpful in illustrating the distinction between a matter of form and substance. There, the accused was charged with a prostitution-related offence for which the Criminal Code imposed a corroboration requirement. A witness gave corroborating evidence at the preliminary inquiry, but died before the trial. The Crown, which sought to adduce at the trial the depositions taken at the preliminary inquiry, neglected to prove that the evidence of the deceased witness had been taken in the presence of the accused. The Crown's application to reopen its case was dismissed by the trial judge on the basis that the defence had closed its case. The Court of Appeal, however, reversed the trial judge's ruling and allowed the Crown to reopen its case before it in order to adduce the necessary evidence. McLennan J.A. justified the court's decision on the ground that (at p. 390):
It would be unfortunate if the ends of justice were defeated by the inadvertence of counsel in failing to prove what is essentially a matter of form in relation to procedure and provided always that the calling of further evidence, whatever its character, is for an honest purpose and that there are no unfair consequences to the opposite party so far as the presentation of that case is concerned. [Emphasis added.]
He distinguished the case before him from that of R. v. Day (1940), 27 Cr. App. R. 168, where the English Court of Appeal found the trial judge erred in permitting the Crown in a forgery case to call evidence of handwriting experts after the defence had closed its case. McLennan J.A. observed at pp. 389-90 that, in Day, the evidence "went to the very justice of the case":
. . . the defence might have been presented in a different manner by calling more witnesses or fewer witnesses than were actually called or none at all, had the evidence given after the defence had closed its case been put in, as it ought to have been, as part of the Crown's case in chief.
McLennan J.A. concluded that the defence was not and could not be prejudiced by allowing the Crown to reopen its case to provide the formal proof that the accused was indeed present at the preliminary inquiry when the deceased witness testified.
In Robillard, supra, a decision by this Court, there was a similar absence of formal proof in the Crown's case. An accomplice to an armed robbery identified the accused at the preliminary inquiry as one of the robbers, but refused to testify at tria