R. v. G. (S.G.)

R. v. G. (S.G.)
Collection
Supreme Court Judgments
Date
1997-07-10
Report
[1997] 2 SCR 716
Case number
24939
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 24939
Decision Content
R. v. G. (S.G.), [1997] 2 S.C.R. 716
S.G.G. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. G. (S.G.)
File No.: 24939.
1997: March 17; 1997: July 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Trial ‑‑ Reopening of Crown’s case ‑‑ Trial judge allowing Crown to call new witness after defence had closed its case in murder trial ‑‑ Whether accused prejudiced by reopening of Crown’s case ‑‑ Whether new trial should be directed.
Criminal law ‑‑ Evidence ‑‑ Admissibility of character evidence ‑‑ Trial judge allowing Crown to cross‑examine accused charged with murder as to presence of stolen goods in her house and her sexual relationship with one of boys who carried out killing ‑‑ Whether evidence of bad character properly admissible.
A young adolescent boy was brutally beaten and then murdered in the accused’s house. It was not disputed that the killing was carried out by three other adolescent boys. The Crown’s theory was that the accused, the mother of one of them, had incited the boys to assault and kill the victim because she thought he had “ratted” to the police about either her drug activities or the illegal activities of the boys. The only testimony directly implicating the accused in the killing was that of R, one of the boys involved, and there were serious problems with his testimony. The trial judge allowed the Crown to lead evidence of the presence of stolen property in the house on the basis that it was relevant to the Crown’s theory of the accused’s motives for murdering the victim. He also ruled that the Crown should be permitted to cross‑examine the accused on her sexual relationship with M, one of the boys. The only defence witness was the accused. At the end of the defence’s case, a further witness, G, came forward. Although she had previously given several statements to the police, she had not been called as part of the Crown’s case. Her prior statements simply indicated that she had been in the basement of the house at the relevant times, and that she had heard loud music and people talking. This story had changed when she eventually came forward just before the addresses to the jury were to commence. The trial judge granted the Crown’s application to reopen its case, and gave the defence permission to recall other Crown witnesses for cross‑examination, as well as to reopen the case for the defence. The accused was convicted of second degree murder. The Court of Appeal upheld the conviction.
Held (L’Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed and a new trial directed.
(1) Reopening of Crown’s Case
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference. That discretion must be exercised judicially, however, and in the interests of justice. The crucial question to be resolved is whether the accused will be prejudiced in his or her defence. The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence. In the third stage of the trial, where the defence has already begun to answer the Crown’s case, the discretion is extremely narrow, and is far less likely to be exercised in favour of the Crown. Reopening at this stage should only be permitted in those very exceptional cases that are closely analogous to the two examples given in P. (M.B.): where the conduct of the defence directly or indirectly contributed to the Crown’s failure to lead the particular evidence before the close of its case, and where the Crown made an omission or mistake on a non‑controversial issue that was purely formal or technical, and had nothing to do with the substance of the case. Beyond these examples, it will be extremely difficult for the Crown to succeed in an application to reopen the case once the accused has begun to answer the Crown’s case.
One of the primary concerns that arises from permitting the Crown to reopen during the third phase of the trial is that the right of accused persons not to be conscripted against themselves will be compromised. The Crown must not be allowed to change the case it has presented once the accused has begun to answer the Crown’s case. Furthermore, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”. The fact that the Crown is not at fault in failing to adduce the evidence as part of its case makes no difference to the right of the accused to know the case that must be met before responding. At the third stage of the trial, the opportunity to recall Crown witnesses and to reopen the case for the defence can never completely cure the resulting harm to the defence.
Here, it is apparent that the splitting of the Crown’s case prejudiced the accused in a number of respects. G’s testimony corroborated R’s evidence on a number of issues, thereby filling an important gap in the Crown’s case. In particular, it was the only other evidence that tended to suggest that the accused might have been present in the house while the victim was still alive. Furthermore, the mere fact that the accused felt the need to take the stand again to answer some of these points was inherently prejudicial, since it gave the Crown a second chance to attack her credibility in cross‑examination. In any event, since G’s evidence did not fall into the narrow or comparable exceptions identified in P. (M.B.), prejudice to her defence should be presumed. If any onus rested on her to demonstrate prejudice, she discharged that onus when her counsel argued at trial that he would have conducted the defence differently if G’s evidence had been received as part of the Crown’s case. In these circumstances, it was not in the interests of justice to allow the Crown’s case to be reopened to call G. The only appropriate course of action would have been for the Crown to move for a stay of the proceedings and seek a new trial.
Per L’Heureux‑Dubé and McLachlin JJ. (dissenting): The decision to receive evidence presented late in the trial through no fault of the Crown is within the trial judge’s discretion. An appeal court should not interfere with that discretion unless it appears that an injustice has resulted. Since the issue is essentially a factual inquiry into the impact of the late evidence in a particular case, it is impossible to develop rules based on the stage at which the late evidence is tendered. While it may be suggested that the later the new evidence appears, the more difficult it may be to gain its admission, this is a predictive statement, not a rule of law. The accused is obliged to prove prejudice to his or her right to make full answer and defence. The inquiry before the trial judge is founded in the facts and circumstances of the particular case and there is no presumption or automatic inference of prejudice. “Prejudice”, for the purposes of this inquiry, is used in the legal, procedural sense. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly.
In this case the trial judge made no error in exercising his discretion in favour of receiving the late evidence. The Court of Appeal was correct in concluding that admission of the late evidence did not deprive the accused of a fair trial and did not violate her right to make full answer and defence. While G’s evidence was significant, it did not change the Crown’s case, nor did it change the defence case. Any appearance of increased importance that may flow from late evidence can be eliminated by a specific instruction from the trial judge. Moreover, the accused had sufficient time to prepare for the cross‑examination of G. The fact that she might have cross‑examined the other witnesses differently does not necessarily mean that she suffered prejudice. The accused was free to recall the other Crown witnesses to question them about matters arising out of the late evidence, and was also free to call new witnesses, which she did.
(2) Character Evidence
Per Lamer C.J. and Cory and Iacobucci JJ.: Evidence of bad character of the accused can be adduced where the evidence is relevant to an issue in the case, where the accused puts his or her character in issue, and where the evidence is adduced incidentally to proper cross‑examination of the accused on his or her credibility. Here, the evidence was admissible as relevant to significant issues in the case. Once evidence of bad character is adduced because it is relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused. Testimony as to bad character will not be the only evidence that is relevant to credibility, but will simply be one factor among many that will lead the trier of fact to form an impression as to the truthfulness of the accused. Provided an appropriate direction is given, it does not materially increase the risk that the accused will be convicted on the basis of her disposition, rather than for committing the acts that are the subject of the charge. Here, the evidence of the accused’s sexual relationship with M was relevant to an important issue in the case, namely the ability of the accused to exercise such exceptional control over the boys that she could persuade them to assault and kill another boy. It was therefore properly admissible, subject to a determination that its probative value outweighed its prejudicial effect. The trial judge was also correct in finding that the evidence of the presence of stolen property in the house prior to the killing was properly admissible.
Per L’Heureux-Dubé and McLachlin JJ. (dissenting): The reasons of Cory J. on the issue of character evidence were agreed with. There is no reason to intervene in the trial judge’s discretionary finding on the admissibility of this evidence.
Per Sopinka and Major JJ.: It is well established that an accused who has not put his or her character in issue cannot be cross‑examined with respect to discreditable misconduct which is not charged in the indictment unless the evidence is otherwise relevant to an issue. The rationale for this exclusionary rule is not that the evidence is logically irrelevant but that its probative value is exceeded by its prejudicial effect. The policy is that an accused should be tried on the basis of evidence presented relating to the transaction charged and not on the basis of disposition to commit the crime. This policy applies equally whether the evidence is introduced through Crown witnesses or by cross‑examination of the accused, and applies notwithstanding that the purpose of the cross‑examination is limited to attacking the credibility of the accused. The policy also applies to prevent the use of such evidence for the purpose of impugning credibility, since it is highly questionable that as a general rule a logical relationship exists between misconduct and veracity. Section 12 of the Canada Evidence Act , which permits a witness, including an accused, to be cross‑examined on previous convictions, is a legislated exception to the policy. In view of the strong policy against the use of character evidence to impugn credibility, the policy should not be discarded when evidence of bad character is admitted not because it is shown to be relevant to credibility, but because the evidence is relevant to another issue. If the evidence is admitted to show the falsity of testimony given by the accused, it will be relevant to credibility generally. However, if the only effect of the evidence is that it tends to show a disposition to be untruthful, then there is no reason that the policy against the use of such evidence should not apply. If the evidence is admitted for another purpose, its use should be restricted to that purpose. Here the previous sexual activity with M was admitted as tending to show why he would be subject to the accused’s direction and control, and the evidence as to stolen property as tending to explain the motive for reprisals against the victim. The use of these pieces of evidence should have been limited to the purposes for which they were admitted.
Cases Cited
By Cory J.
Applied: R. v. P. (M.B.), [1994] 1 S.C.R. 555; referred to: R. v. Thatcher (1986), 24 C.C.C. (3d) 449, aff’d [1987] 1 S.C.R. 652; R. v. Kishen Singh (1941), 76 C.C.C. 248; Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. F.S.M. (1996), 93 O.A.C. 201; R. v. Krause, [1986] 2 S.C.R. 466; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Biddle, [1995] 1 S.C.R. 761; John v. The Queen, [1985] 2 S.C.R. 476; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193, leave to appeal granted on other grounds (1981), 56 C.C.C. (2d) 576 (S.C.C.); Lucas v. The Queen, [1963] 1 C.C.C. 1; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Davison (1974), 20 C.C.C. (2d) 424; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Hogan (1982), 2 C.C.C. (3d) 557; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Seaboyer, [1991] 2 S.C.R. 577.
By Sopinka J.
Not followed: R. v. Hogan (1982), 2 C.C.C. (3d) 557; referred to: R. v. Rowton (1865), 10 Cox C.C. 25; Morris v. The Queen, [1983] 2 S.C.R. 190; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; Maxwell v. Director of Public Prosecutions (1934), 24 Cr. App. R. 152; R. v. Davison (1974), 6 O.R. (2d) 103; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. D. (L.E.), [1989] 2 S.C.R. 111; Boykowych v. Boykowych, [1955] S.C.R. 151.
By McLachlin J. (dissenting)
R. v. Kishen Singh (1941), 76 C.C.C. 248; R. v. Day (1940), 27 Cr. App. R. 168; R. v. McKenna (1956), 40 Cr. App. R. 65; Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Harrer, [1995] 3 S.C.R. 562.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 12 .
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), 24(2) .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 579 , 686(1) (b)(iii).
Authors Cited
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 45 B.C.A.C. 161, 72 W.A.C. 161, 90 C.C.C. (3d) 97, and (1995), 62 B.C.A.C. 79, 103 W.A.C. 79, 99 C.C.C. (3d) 575, dismissing the accused’s appeal from her conviction of second degree murder. Appeal allowed and new trial directed, L’Heureux‑Dubé and McLachlin JJ. dissenting.
Ian Donaldson and Tanya Chamberlain, for the appellant.
Alexander Budlovsky, for the respondent.
The judgment of Lamer C.J. and Cory and Iacobucci JJ. was delivered by
1 Cory J. -- The primary issue in this appeal is whether the trial judge erred in allowing the Crown to reopen its case to call a new witness after the case for the defence was closed. It is also necessary to determine whether the trial judge improperly admitted evidence which indicated the bad character of the accused.
I. Background
2 On July 6, 1990, J.B., a young adolescent boy, was brutally beaten and then murdered. His naked body was found the following day wrapped in a pink blanket and a sheet. Several cords and two plastic bags were around his neck, and he was gagged with a bandanna. It was not disputed that the killing was carried out by three other adolescent boys, J.G., B.R. and H.M. The Crown’s theory was that J.G.’s mother, the accused S.G.G., had incited the boys to assault and kill J.B. because she thought he had “ratted” to the police about either her drug activities, or the illegal activities of the boys. S.G.G. was convicted of second degree murder after a trial by judge and jury.
3 Her appeal from the conviction was unanimously dismissed by the Court of Appeal: (1994), 45 B.C.A.C. 161, 72 W.A.C. 161, 90 C.C.C. (3d) 97, and (1995), 62 B.C.A.C. 79, 103 W.A.C. 79, 99 C.C.C. (3d) 575. In order to resolve this appeal, it is necessary to review the manner in which the evidence was adduced at trial.
A. The Crown’s Case Before Reopening
4 The Crown called a number of witnesses. Yet the only testimony directly implicating S.G.G. in the killing was that of B.R., one of the boys who had carried out the assault and killing. There were serious problems with the testimony of B.R. He had an extensive criminal record; he admitted to a number of other criminal activities for which he had not been caught; he lied to the police on a number of occasions throughout the investigation of J.B.’s death; he was not completely truthful about his character on the witness stand; and he had been given immunity from prosecution for J.B.’s murder, as well as another property offence, in exchange for his testimony at S.G.G.’s trial.
5 B.R. testified that S.G.G. had been at home at least from 9:30 p.m. on the evening of the murder, although he conceded that he did not have a watch. He stated that she instructed the boys to beat J.B. because he had “ratted on a deal”. She told them to remove J.B.’s clothes, and to punch him. She participated in some of the punching, and helped the boys remove his clothes. At one point, the victim was prevented by S.G.G. from leaving the house. Although the beating was largely carried out by the boys, S.G.G. hit him with a baseball bat, and poked him in the chest with a pipe.
6 After the boys punched and kicked J.B. for some time, S.G.G. said “We’ve gone too far, we have to kill him”. B.R. stated that J.G. and H.M. placed a plastic bag over J.B.’s head. J.G. and B.R. suffocated him by pulling electric cords around his neck. The cords were taken from a clock radio and a lamp. S.G.G. then gave the boys a pink blanket and a sheet in which to wrap the body, and they carried it out to the backyard. In the meantime, S.G.G. instructed H.M. to steal a van, sent her son J.G. to his girlfriend’s house, and told B.R. and H.M. to dump the body. B.R. and H.M. did so. S.G.G. paid the boys twenty dollars each, saying that a gang wanted J.B. dead. On the following day, S.G.G. told B.R. to buy paint, and one room in which the deceased had been assaulted was painted. B.R. helped S.G.G. clean blood from various locations in the house. B.R. stated that he threw away his shoes in a sewer, and that H.M. left his shoes at a beach.
7 The other witnesses called by the Crown tended to confirm details such as the theft of the van, the presence of the body in the van, the fact that the killing had taken place in S.G.G.’s house and that the pink blanket and sheet in which the body was wrapped came from S.G.G.’s house. One witness gave evidence that S.G.G. had been out with him on that evening and had not come home until after 11:00 pm. However, forensic evidence indicated that the death could have taken place after this time. Wounds on the body were consistent with being struck by a baseball bat, and a round object such as pipe. The police observed that one room in S.G.G.’s house appeared to have been freshly painted. Witnesses also testified that the deceased had a very short haircut, with the words “Who am I?” shaved on the back of his head. There was no dispute that S.G.G. had given J.B. this haircut some days before he died. Crown witnesses, including B.R., testified to the presence of stolen property in the house prior to the killing.
8 Only T.H., another adolescent boy who had frequented S.G.G’s house, confirmed B.R.’s testimony that S.G.G. thought J.B. was a “rat”. He also testified that S.G.G. had tried to persuade him to beat up J.B. He could not confirm that she had been present during the killing. T.H., like B.R., was hardly an ideal witness. He too had been involved in criminal activities; he had lied to the police during their investigations and at the preliminary inquiry; and he admitted that he did not like the accused.
B. Case for the Defence Before Reopening
9 The only defence witness was the accused. She testified as to her involvement in prostitution, her alcoholism, and her drug use. She confirmed that she knew that J.G., B.R., H.M. and other boys were actively involved in illegal activities such as car theft and burglary. She also knew that the boys rarely attended school, and indicated that although she did not like their activities, she was not able to prevent them. She stated that only one baseball bat was in the house, and that it was kept in the basement suite occupied by Tracy Gabriel and her children.
10 S.G.G. stated that on the night of the murder she returned home after 11:00 pm. to find that J.B. had been beaten and was already dead. She yelled at the boys, asking them what had happened. She stated that the deceased was fully dressed, and that there was nothing around his neck or on his head. She admitted that she instructed H.M. to steal a vehicle to take the deceased “home or wherever”, and that she told her son to go to his girlfriend’s house. B.R. helped her clean up the next day, but S.G.G. denied that she sent him to buy paint, or that a room in her house was repainted after the killing. She also denied that she thought J.B. was a “rat”. She testified that she had participated in disposing of the body and covering up the killing in order to protect her son. She explained that this was also the reason why she lied to the police on a number of occasions during the investigation.
11 In cross‑examination, S.G.G. admitted that she allowed the boys to use drugs and alcohol, and to have sexual relationships in the house. She also admitted that there had been stolen property in the house for a time prior to the murder. She stated that on the morning after the killing, she told Tracy Gabriel what the boys had done. She also admitted that she had been carrying on a sexual relationship with H.M., one of the boys who participated in the killing.
C. Evidence Adduced After Re‑Opening
12 At the end of the defence’s case, Tracy Gabriel came forward. Although she had previously given several statements to the police, she had not been called as part of the Crown’s case. Her prior statements simply indicated that she had been in the basement of the house at the relevant times, and that she had heard loud music and people talking. This story had changed when she eventually came forward just before the addresses to the jury were to commence. The trial judge granted the Crown’s application to reopen its case, and gave the defence permission to recall other Crown witnesses for cross‑examination, as well as to reopen the case for the defence.
13 In her evidence in chief, Gabriel admitted to engaging in prostitution, drinking and drug use. She testified that on one occasion before the killing when the police were in S.G.G.’s house on another matter, an officer used words that suggested that an informant had directed them to the house. Gabriel stated that S.G.G. was present when these words were used, and that she said that she was going to do something about it. S.G.G. apparently believed that the informant was either T.H. or the deceased. On the night of the murder, Gabriel was woken by loud music and voices around 11:00 p.m. or midnight. She heard S.G.G. shouting “Who are you?” several times.
14 Gabriel said that she only heard about J.B.’s death from the police two days afterwards. She also indicated that several baseball bats and pipes that had been around the house before the killing had disappeared after the killing. She confirmed B.R.’s evidence that he had been sent out to buy paint on the morning after the killing, and that the room had been painted on that day. She stated that S.G.G. ran the household like “an army camp”. She also described a trip to Trout Lake the day after the killing, when S.G.G. told B.R., H.M. and J.G. to “lose their shoes” and S.G.G. “lost” her shoes as well. She stated that the cord from her daughter’s clock radio was missing on the day after the killing. Gabriel admitted to lying to the police in her original statements. In cross‑examination, defence counsel unsuccessfully tried to get her to admit that she had heard about J.B.’s death from S.G.G. on the morning afterward. Gabriel confirmed that she had heard B.R.’s evidence at the preliminary inquiry, and that she had had a falling out with S.G.G. However, she testified that she came forward in order to “see justice done”.
15 The defence recalled one of the police officers who testified that the word “informant” had not been used in the accused’s presence. The case for the defence was also reopened. S.G.G.’s sister, S.W., testified that S.G.G. had told Gabriel about the killing on the following day and had said that she (S.G.G.) had not participated. S.G.G. also took the stand and was once again examined and cross‑examined. She denied much of Gabriel’s evidence, particularly that the word “informant” had been used by the police in her presence. She admitted that Gabriel’s account of the trip during which the shoes were “lost” was true. Ultimately the jury returned a verdict of guilty.
II. Judgments Below
A. British Columbia Supreme Court
(1) Reopening the Crown’s Case
16 Despite the objections of defence counsel, Low J. ruled that the Crown would be permitted to reopen its case so that the witness Gabriel could be heard. In Low J.’s view, “any evidence independent of [B.R.] tending to put the accused in her home at the time of the killing, regardless of the time the killing actually occurred, becomes very important to the Crown’s case”. He acknowledged that Gabriel’s evidence was potentially damaging to the accused, and that it confirmed B.R.’s evidence in some respects.
17 Although Gabriel’s name had arisen a number of times during the Crown’s case, she had not been called because as far as the Crown knew, her evidence was unlikely to be helpful. Low J. concluded that “she was not cooperative with the police and would not be cooperative with the Crown until she was ready to be”. Relying upon the decision in R. v. Thatcher (1986), 24 C.C.C. (3d) 449 (Sask. C.A.), aff’d on different grounds [1987] 1 S.C.R. 652, Low J. held that the Crown could reopen its case because he was satisfied that the Crown had not “deliberately overlooked” the possibility that Gabriel could assist in proving that S.G.G. had been at home at the critical time.
18 In Low J.’s opinion, leave to reopen the Crown’s case is not limited to cases of inadvertence. Gabriel was perceived to know nothing useful, or to be too friendly with the accused to be truthful when she gave her statements to the police. Although it was unfortunate that she did not come forward earlier, her new evidence was “of too much potential importance to be kept from the trier of fact”. He ruled that the defence would be allowed to call evidence in reply to Gabriel’s testimony.
19 Low J. then charged the jury, informing them that the evidence of Gabriel was being heard because she had come forward at the last minute, but that he had not made any pre‑determination of her credibility or reliability. This task was the responsibility of the jury, as it was for every other witness.
20 After Gabriel testified, Low J. rejected a further application by defence counsel either for an adjournment to allow the defence to prepare for her cross‑examination, or for a mistrial. Low J. indicated that he had not changed his mind about the reopening of the case and a mistrial was not appropriate. In his view, Gabriel’s credibility could be adequately challenged by the defence in cross‑examination. No adjournment was granted, although some time was given for preparation for cross‑examination without adjourning the trial.
(2) Admissibility of Evidence Tending to Show that the Accused Was of Bad Character
21 Low J. allowed the Crown to lead evidence of the presence of stolen property in the house on the basis that it was relevant to the Crown’s theory of S.G.G.’s motives for murdering the victim. Low J. also ruled that the Crown should be permitted to cross‑examine the accused on her sexual relationship with H.M. In Low J.’s view, this evidence was relevant to the Crown’s theory that S.G.G. had control over H.M. and could direct his actions. He concluded that the prejudicial effect of admitting the evidence of this relationship did not outweigh its probative value, particularly in light of the fact that S.G.G. had already admitted to a great deal of reprehensible conduct. Low J. indicated that he would give the jury “special instruction” on how to use the evidence.
22 In his charge, the trial judge cautioned the jury against convicting the accused on the basis that they did not like her, or were critical of her general conduct. In particular, the jury was not to convict her because of her immoral or evil life, or because she was an inadequate mother. The guilt or innocence of the accused was to be decided on the basis of the evidence as a whole, and in particular, whether the evidence demonstrated that she participated in the killing. He cautioned that jury that:
It is the whole of the evidence you must consider, and evidence of the Accused’s character can be taken into account by you only in assessing her credibility as a witness, just as you will take into account the character of the Crown witnesses like [B.R.], [T.H.] and Tracy Gabriel in assessing their credibility.
He further cautioned the jury against convicting the accused on the basis of B.R. and T.H.’s evidence alone. He instructed them that they should be particularly careful in accepting B.R.’s evidence since he was one of the killers, had an unsavoury reputation, and had been granted immunity. Although corroboration of his testimony was not a legal requirement, the jury should look for evidence to support his testimony. They should only rely on his evidence standing alone if it was safe to do so, in that it convinced the jury beyond a reasonable doubt that his version of events was true.
B. British Columbia Court of Appeal (1994), 90 C.C.C. (3d) 97
23 Southin J.A. saw no basis to question the Crown’s motivation in seeking to reopen its case so late in the proceedings. Although the Crown knew of Gabriel, it did not know she had material evidence to give. The decision by the Crown not to pressure a witness who is not forthcoming does not attract judicial scrutiny in the absence of bad faith by the Crown. She found that it is not necessary for the Crown to expose itself to suggestions that it has bullied a witness.
24 Southin J.A. held that Gabriel’s reluctance to come forward initially should not be visited on the Crown. In her view neither the Crown’s case nor the defence changed as a result of Gabriel’s evidence, since her evidence only confirmed B.R.’s evidence in minor respects. This was not a case in which the accused could have chosen to remain silent and escaped conviction.
25 She expressed the opinion that the late appearance of Gabriel constituted the type of narrow and exceptional circumstance identified in R. v. P. (M.B.), [1994] 1 S.C.R. 555, in which the Crown should be permitted to reopen its case even after the defence has begun to call evidence. She thought that no prejudice to the accused had resulted. If Gabriel had been called as part of the Crown’s case, it would have been even more necessary for S.G.G. to testify. In any event, the right of the accused not to be conscripted against herself does not include the right not to be contradicted when giving a prior consistent statement. The statement that the accused had told Gabriel about the boys’ participation in the killing was gratuitous, self‑serving and of minimal probative value. Furthermore, S.G.G.’s right to make full answer and defence was not compromised because she had adequate time to consider the gist of Gabriel’s evidence and to prepare for cross‑examination. There was no evidence that additional time to investigate Gabriel would have generated any “ammunition” with which defence counsel could attack Gabriel’s credibility. Nothing prevented defence counsel from calling other witnesses to reply to Gabriel ‑‑ for example, the other two boys, J.G. and H.M. In the absence of any legal prejudice to the accused, the trial judge has the discretion to allow the Crown’s case to be reopened, and Low J. did not exercise this discretion improperly.
26 Southin J.A. agreed with Low J. that S.G.G. could be cross‑examined on her sexual relationship with H.M. The information was relevant to the Crown’s theory of the case. The trial judge also made no error in charging the jury regarding the use that could be made of character evidence. The charge was scrupulously fair, and stressed the unreliability of B.R. No error was made in charging the jury regarding reasonable doubt. The appeal was therefore dismissed.
III. Issues
27 These are the issues presented in this appeal:
(1) Did the Court of Appeal err in upholding the trial judge’s ruling that it was permissible for the Crown to reopen its case following the close of the defence’s case?
(2) Did the Court of Appeal err in upholding the trial judge’s ruling permitting the Crown to cross‑examine the appellant as to the presence of stolen goods in her home and her sexual relationship with H.M., although this evidence also indicated that she was of bad character?
IV. Analysis
A. Should the Crown’s Case Have Been Reopened?
(1) Principles Governing an Application to Reopen the Crown’s Case
28 The trial judge made his decision permitting the Crown to reopen its case prior to the release of this Court’s decision in R. v. P. (M.B.), supra. In that decision, the reasons of Lamer C.J. set out the principles that must be applied when the Crown seeks to reopen its case, and these principles must govern in this appeal.
29 The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference. However, that discretion must be exercised judicially, and in the interests of justice: P. (M.B.), supra, at pp. 568‑69. Long before the Canadian Charter of Rights and Freedoms it was recognized that the reopening of the Crown’s case posed a number of dangers to the fairness of the trial. See for example R. v. Kishen Singh (1941), 76 C.C.C. 248 (B.C.C.A.) per Sloan J.A. Now that the accused’s rights to a fair trial are constitutionally protected, courts must be even more vigilant in protecting those interests. The crucial question to be resolved upon an application to reopen the Crown’s case is “whether the accused will suffer prejudice in the legal sense ‑‑ that is, will be prejudiced in his or her defence”: P. (M.B.), supra, at p. 568.
30 The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence as the trial progresses. During the first stage, when the Crown has not yet closed its case, the trial judge’s discretion is quite broad. At the second stage, which arises when the Crown has just closed its case but the defence has not yet elected whether or not to call evidence, the discretion is more limited. Finally, in the third phase ‑‑ where the defence has already begun to answer the Crown’s case ‑‑ the discretion is extremely narrow, and is “far less likely to be exercised in favour of the Crown”. The emphasis during the third phase must be on the protection of the accused’s interests. See P. (M.B.), at p. 570. In the instant appeal, the Crown sought to reopen the case in the third phase of the trial after the case for the defence had closed.
31 Traditionally, the Crown was only allowed to reopen its case during the third stage of the trial if the evidence arose ex improviso ‑‑ in other words, “if some matter arose which no human ingenuity could have foreseen”: P. (M.B.), supra, at p. 570. The parties argued extensively as to whether the evidence in this case arose ex improviso. Both parties seemed to assume that such a finding should lead almost automatically to permission to reopen the Crown’s case. I cannot accept that contention.
32 The traditional ex improviso rule only allowed the Crown’s case to be reopened where the evidence could not have been foreseen by the Crown and it was in the interests of justice to permit it. The pre‑Charter decision in Robillard v. The Queen, [1978] 2 S.C.R. 728, may have very slightly expanded the circumstances in which the Crown’s case can be reopened to include non‑controversial evidence which the Crown inadvertently omitted to adduce as part of its case. Lamer C.J. in P. (M.B.) discussed the ex improviso exception within the context of the principle which must govern at this very late stage in the trial, namely that the interests of the accused must be protected. In other words, prejudice to the accused must be avoided. In all cases, the discretion of a trial judge to reopen the Crown’s case once the accused has begun to answer it is “severely curtailed” (p. 571).
33 The narrowness of the trial judge’s discretion to reopen the Crown’s case at this late stage of the trial cannot be overemphasized. In P. (M.B.), at p. 573, Lamer C.J. gave two examples of the very limited circumstances in which the Crown’s case might be reopened during the third phase. In the first example, the conduct of the defence directly or indirectly contributed to the Crown’s failure to lead the particular evidence before the close of its case. In the second example, the Crown made an omission or mistake on a non‑controversial issue that was purely formal or technical, and had nothing to do with the substance of the case.
34 These examples are entirely compatible with the need to ensure that reopening is only allowed where no prejudice to the accused can be demonstrated. In the first example, it does not lie in the mouth of the accused to claim prejudice where the failure of the Crown to adduce the particular evidence arises from the actions of the defence. In the second instance, there is no prejudice to the accused because the issue which is addressed on reopening is non‑controversial and has no effect on the substance of the case. Thus, for example, the Crown may be permitted to reopen its case to prove that the person referred to at a preliminary inquiry is the same person as the accused (Robillard, supra) because this is purely formalistic.
35 Although Lamer C.J. in P. (M.B.) was careful to leave open the possibility that reopening during the third phase of the trial may be permissible in other circumstances, he was equally clear that these circumstances would be rare. In my view, reopening at this stage should only be permitted in those very exceptional cases that are closely analogous to the examples given in P. (M.B.) ‑‑ in other words, where the absence of prejudice to the accused is manifestly obvious. Beyond these examples, it will be extremely difficult for the Crown to succeed in an application to reopen the case once the accused has begun to answer the Crown’s case.
36 The examples in P. (M.B.) addressed evidence that did not arise ex improviso. The same principles must equally apply where the evidence has arisen ex improviso. The fact that the Crown is not at fault in failing to discover evidence will often be irrelevant