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 rhetorical passion in that presentation.
While counsel ought to avoid submissions that are not supported by the evidence, most trials turn on disputes about what inferences are supported by the evidence. If everyone agreed on a bright line demarcation, no doubt responsible counsel would respect it. Unfortunately, no such bright line exists.
23 Once one acknowledges, as my colleagues do in para. 104, “the powerful persuasive force which well-crafted and skilfully presented submissions may have in a jury trial”, it follows that the Crown’s closing address adds to the jeopardy of the accused and thereby itself attracts the right to full answer and defence. Treating “the case for the prosecution” as including more than the evidence has respectable roots in the jurisprudence; see for example R. v. Gardner, [1899] 1 Q.B. 150, per Lord Russell of Killowen C.J., at p. 153:
The section says that in such a case the person charged is to be called as a witness immediately after the close, not of the case for the prosecution (which expression might include the summing-up of counsel), but of the evidence for the prosecution. . . . [Emphasis by underlining added.]
To draw a hard distinction between evidence and argument when both are deployed to the prejudice of the accused, and either may tilt the outcome towards conviction, appears to me formalistic and unconvincing.
24 The Crown, of course, suffers corresponding disadvantages when it is obliged to give the first address. Parliament’s decision to limit closing addresses in a criminal trial to one each from the accused and the Crown will inevitably create a potential problem for the party that is obliged to go first if that party is denied a right of reply. That being the case, however, 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.
Is it Sufficient for the Accused to Be Forearmed with the Crown’s “Theory” of the Case?
25 My colleagues take the view that despite the fact that closing argument can assist the Crown in obtaining a guilty verdict, it is not included in the package of prejudice to which the accused has a right to make full answer and defence. They take the narrow view that the right of an accused is satisfied by the opportunity to answer the evidence and the Crown’s theory of the case, as they state in their reasons for judgment at para. 109:
What is being answered in the accused’s jury address is the evidence and the Crown’s theory of the case, both of which, as just discussed, the accused will know prior to addressing the jury at the close of the defence evidence. The accused’s jury address is his or her opportunity to answer the Crown evidence and theory of the case with argument and persuasion. [Emphasis added.]
26 This approach, with respect, is awkward both in principle and in practice, and (as stated) does not confront the constitutional problem. It is awkward in principle because of the persuasive onus that lies on the Crown. 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. This has long been recognized, e.g., in R. v. Coppen (1920), 33 C.C.C. 264 (Ont. C.A.), per Ferguson J.A., at p. 271, in a case where the Crown had decided not to speak first but to hold its argument for reply:
Before us, it was argued that the failure of the Crown to sum up the evidence left the prisoner’s counsel, in a matter of life and death, to grope in darkness for the inferences, arguments, and ultimate theories of the prosecution, or to waste his time and efforts in speculating as to the Crown’s inferences, arguments, and theories, and in gathering up every piece of evidence, arranging, re-arranging, and dovetailing them in hypothetical cases built according to his own conceptions, for the purpose of assailing them, and tearing them to pieces, hoping in this way to hit upon the Crown’s case, theories, and arguments, and to destroy them. This, the prisoner’s counsel contends, was unjust and unfair, and not in keeping with the honour and dignity of the Crown, or in keeping with the duty of the Crown counsel to prosecute with open hand and fairness -- to secure justice to the accused -- to give him the right to be heard by counsel and to make known to him the grounds on which the Crown demands his life.
I must confess that these arguments appealed strongly to my humanity and sense of what is fair; but it does not follow that the course pursued was illegal. [Emphasis added.]
27 Where, as here, the accused does call witnesses, his or her counsel in making the first address to the jury has to explain what he or she believes to be the Crown’s argument in order then to try to poke holes in something that does not yet exist. While under R. v. Stinchcombe, [1991] 3 S.C.R. 326, and related developments the defence no longer has to “grope in darkness” for the theory of the prosecution, the jury is not privy to the Crown’s pre-trial disclosure. The defence may therefore have to elaborate upon the Crown’s theory to the jury in order to set the stage for the defence response. Such repetition may inadvertently reinforce the prosecution’s argument and add to its credibility. The notion that it is sufficient for the accused to respond to the “Crown theory of the case” also suffers from the practical difficulty that the Crown’s theory of the case is a moving target that has to adjust to meet new or changing circumstances during the trial, including what the Crown hears in the defence closing address. As the jeopardy to the accused is created by the actual presentation of the Crown, not its original theory, much will depend on the words in which the Crown’s case is put. As Ferguson J.A. put it in Coppen, supra, at p. 271, what is important is the Crown’s “inferences, arguments, and ultimate theories”. The accused should not be compelled to address what he believes to be the prosecution theory, and then be relegated (and even then only in “exceptional cases”) to a limited 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”, as my colleagues suggest in para. 116.
The “Exceptional Case” Approach
28 An example of the sort of “exceptional case” which my colleagues may have in mind as a candidate for reply or corrective direction was examined recently in meticulous detail by Commissioner Fred Kaufman, C.M., Q.C., in the report of The Commission on Proceedings Involving Guy Paul Morin (1998) (hereafter called the “Kaufman Report”). His report is of particular interest in connection with the issues raised on this appeal because much of his analysis of the wrongful conviction of Guy Paul Morin for the murder of Christine Jessop turned on problems associated with the complexities of expert evidence, problems that were compounded by a powerful but somewhat misleading closing address by Crown counsel. In that case, as here, the accused gave evidence at his trial, and his counsel therefore addressed the jury first and under s. 651 had no right to answer the prosecution argument which contributed to his wrongful conviction.
29 It is important to state at the outset that Commissioner Kaufman found the misleading aspects of the Crown’s address were not deliberate (Kaufman Report, vol. 1, at pp. 118 and 145), and did not necessarily exceed the bounds of “ethical advocacy”, at p. 147:
In the context of a lengthy criminal case, involving complicated and conflicting evidence, the dangers are greater that such language could potentially mislead the triers of fact, yet remain within the bounds of ethical advocacy.
30 Of relevance to the present appeal is the fact that at the Morin trial, as here, the Crown drew inferences from the expert testimony that went beyond the testimony of the experts themselves. Crown counsel in the Morin case rationalized this point with the explanation that “the Crown was not trying to summarize what the experts said. They were acting as advocates, presenting the Crown’s position to the jury” (Kaufman Report, vol. 1, at p. 151). In other words, the view of Crown counsel was that it is an open question in any trial, to be resolved by argument, as to what inferences are supported by the evidence.
31 The wrongful conviction of Guy Paul Morin was based almost entirely on circumstantial evidence. The Crown led expert evidence about clothing fibres found on the front seat of Mr. Morin’s car to establish direct contact between the accused and the victim, and to establish that a hair found pinched in the victim’s necklace at the site where her body was found was consistent with Mr. Morin’s hair. Commissioner Kaufman’s general conclusion was that:
It was alleged before me that aspects of the Crown’s closing address dealing with the hair and fibre evidence were misleading or potentially misleading. The evidence [at the Inquiry] supports that conclusion.
(Kaufman Report, vol. 1, at p. 118.)
Mr. McGuigan [the leading Crown counsel] referred extensively to the study [Jackson & Cook, “The Significance of Fibres Found on Car Seats”, 1986] in his closing address, heavily relying upon it as support for the prosecution’s position that the fibre similarities showed direct contact between Christine Jessop and Guy Paul Morin. The study, properly understood, did not support the case for the prosecution. Further, the details of the study were completely irrelevant to the proceedings against Mr. Morin. The study was seriously misused at Mr. Morin’s trial and likely misled the jury.
(Kaufman Report, vol. 1, at p. 119.)
I might add, parenthetically, that the last cited passages from the Kaufman Report more or less capture the appellant’s argument about the Crown’s use of the “blue-face” evidence in the present appeal.
32 Wrongly relying on their misinterpretation of a published paper (the Jackson & Cook Study, supra), the experts from the Centre of Forensic Sciences incorrectly testified that this research by leading experts in the field supported their conclusion that the number of “matches” of fibres found in Morin’s car and the victim’s clothing tended to establish direct contact. Crown counsel took the erroneous testimony even further in his closing address, where he is quoted as saying:
The chance of a random match diminishes with the more matches that are found and I submit to you that the trace evidence found in this case was not just a coincidence and is significant, probative evidence which assists you in arriving at the conclusion that the accused murdered Christine Jessop.
In addition, ladies and gentlemen, if you were to put all the science aside and look at the results just using good old common sense, I would submit that you would have to conclude that Christine Jessop was in that Honda motor vehicle on October 3rd, just prior to her death.
(Kaufman Report, vol. 1, at p. 132.)
33 As to the hair found post mortem in the victim’s necklace, Commissioner Kaufman reproduced the following extract from Crown counsel’s jury address:
This type of expert opinion, in relation to hair, that’s as good as it gets in the science of hair comparison. It doesn’t get any better.
(Kaufman Report, vol. 1, at p. 145; emphasis in original.)
Commissioner Kaufman commented on this aspect of the jury address as follows:
Everything in [Crown counsel’s] closing address was there for a purpose -- not surprisingly, given his status as a pre-eminent advocate. . . . [H]is address [on this point] was obviously done so as to cause the jury to infer that the necklace hair was likely Mr. Morin’s, given the small percentage of classmates whose hair was equally similar. The argument was invalid, since the small sample (and the absence of any evidence as to the composition of the class) permitted no such inference to be properly drawn. However, I cannot find . . . that [Crown counsel] deliberately made an argument which he knew to be fallacious.
(Kaufman Report, vol. 1, at p. 145.)
34 The Morin case, exceptional as it was, illustrates what I believe to be some of the problems with my colleagues’ view that a right to request the judge to grant an opportunity to reply or to provide a corrective instruction in exceptional cases satisfies the requirements of “full answer and defence”. My colleagues state, at para. 103:
In our view, the jury address is an example of a situation in which an accused is equally capable of defending himself or herself against the Crown regardless of whether the Crown acts first or last.
The Kaufman Report chronicles how misinterpretations of the expert evidence in the Crown’s closing address, albeit not deliberate and not necessarily outside the bounds of ethical advocacy, can produce a miscarriage of justice. It shows why counsel should not be fixed with the clairvoyance to anticipate the Crown’s actual treatment of the expert evidence. Equally, it demonstrates why counsel in the position of Mr. Morin’s counsel had a right to answer more than merely the “Crown’s theory of the case”. The defence should have the right to answer the actual “inferences, arguments, and ultimate theories” (Coppen, supra, at p. 271) of the Crown on a submission-by-submission basis.
35 What then of the proposed solution that in the “exceptional case” the accused could apply to make a reply limited to the alleged misrepresentations or corrective instruction at the discretion of the trial judge? In my view, the proposal falls short of a solution, because firstly it artificially restricts what the accused is entitled to “answer”, secondly it subjects even that limited opportunity to the trial judge’s discretion, and thirdly it leaves out of account the practical dynamics of a trial. It usually takes a good deal of counsel’s time to review and explain the underlying expert testimony to help a jury grasp the conclusions defence counsel seeks to draw, or the errors of misinterpretation he or she hopes to correct. It took Commissioner Kaufman 68 pages in his Report to deconstruct and explain the errors in the hair and fibre evidence and its treatment in the Crown’s closing address. If defence counsel in a Morin situation elected to review the hair and fibre evidence in his or her principal closing address, counsel would run the risk that he or she would be taken to have covered the subject and would not be permitted any reply at all. If a reply were permitted, defence counsel would still be deprived of the ability to re-establish from the ground up the sort of context necessary to make the jury understand the rebuttal argument because if he or she attempted to do so there would be accusations of “reploughing old ground” or “splitting the case”. On the other hand, if defence counsel held off dealing with the expert evidence in question in his or her principal closing argument (as in the case under appeal), a reply might still be denied on the basis that the decision not to address the particular area of expert evidence in the principal closing argument would be deemed to be a “strategic decision” (as my colleagues put it in para. 115 of their reasons). Defence counsel would then be told that they would simply have to live with the adverse consequences of this attributed strategy. The more efficient as well as the more simple procedure would be to allow the defence in every case the right to speak last. That also happens to be the procedure that vindicates the constitutional rights of the accused under s. 7 of the Charter to make full answer and defence.
36 My colleagues’ alternative suggestion, that the problem of misleading or unsupported submissions in the Crown’s argument could be remedied by a “corrective instruction” from the trial judge, 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.
Trial Tactics Versus Constitutional Rights
37 My colleagues further rationalize the merits of s. 651 by suggesting that we are dealing in this appeal with little more than trial tactics and defence strategy. Thus, as mentioned, it is surmised that defence counsel made a “strategic decision” not to deal in his closing address with the blue-face evidence (at para. 115) and in any event did not suffer by being required to address the jury first because “it is not unfair to require an accused person to engage in one of two equally advantageous jury address procedures” (at para. 112), and further (at para. 120):
At most, if the accused’s counsel in a particular case subjectively views addressing the jury last as an advantage, the accused is faced with having to weigh one perceived tactical advantage among the various other factors which go towards determining whether or not to call and examine defence witnesses. [Emphasis in original.]
38 Undoubtedly, tactics play a role in the defence, as they do in the prosecution, but tactics operate within a framework established by the Constitution. I do not share my colleagues’ assumption that defence counsel made a “strategic decision” in this case to ignore the blue-face evidence. His problem was not the “blue-face” evidence as such, but the specific way in which that evidence was used (or misused) by the Crown after defence counsel had sat down. Equally, while defence counsel may argue about the tactical advantages of addressing the jury first or last, the debate about trial tactics cannot determine the scope of the right of the accused to answer, if he or she wishes to do so, the totality of what is put against the accused. 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 that 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.
Evolution of the Two-Speech Model of Jury Addresses
39 Some of the difficulty here is created by the fact that s. 651 allows only a single address to each side. My colleagues appear in their reasons for judgment to assume the inevitability of the “two-speech” model, wherein the prosecution and the defence are ordinarily limited to one speech each.
40 A survey of comparable jurisdictions shows that there are a variety of approaches to the solution of the problem of closing addresses in the context of a criminal trial. As will be seen, the two-speech model was introduced in Canada in 1892 for reasons which can only be guessed at. Hansard discloses no discussion of the topic. Most of the jurisdictions which allow only two speeches permit the defence to go last or give the defence an option to go first or last. A more common option is use of the three-speech model in criminal trials. It is a rare thing to require the defence to make its closing address before hearing the closing address of the prosecution. Canada is not alone in requiring this, but it is in a dwindling minority.
41 In 1892, Canada adopted the procedure whereby the accused who called evidence would be required to address the jury before hearing the Crown’s closing address and would not have a right of reply. At the same time, it was provided that where the accused called no evidence, the representative of the Attorney General addressed the jury first, but did have a right of reply. This lop-sided arrangement was justified by vague references to the prerogatives of the Crown, but was also much criticized, as for example, in R. v. Martin (1905), 9 C.C.C. 371 (Ont. C.A.), per Maclaren J.A., concurring, at p. 389:
In my opinion, the trial Judge ruled properly in his interpretation of sec. 661. It is a relic of absolutism and high prerogative, and, while it stands on the statute-book, the representative of the Attorney-General has a right to claim it, and, when he does so, the Judge must allow it.
42 The “relic” of the Crown’s right of reply was abolished in Canada by the Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 52. Thereafter, criminal trials in this country were limited by Parliament to the two-speech model.
Giving the Accused the Right to Go Last
43 The problems of reply inherent in the two-speech model do not necessarily require movement to a three-speech model. Another option is to impose the unfairness generated by the two-speech model, to the extent it exists, on the Crown. If the defence always has the last word or is given the option to have the last word, the s. 7 issue is resolved.
44 England, New Zealand, and the Australian state of Victoria have enacted rules stipulating that the defence will always address the jury last. See Criminal Procedure (Right of Reply) Act 1964, 1964 (U.K.), c. 34 (England); Crimes Act 1961, as amended by Crimes Amendment Act 1966, 1966 No. 98 (New Zealand); and Crimes Act, as amended, 1966 (Australia). These legislative amendments followed extensive law-reform initiatives, as for example, The English Law Reform Criminal Law Revision Committee, whose Fourth Report, “Order of Closing Speeches”, (July 29, 1963), Cmnd. 2148, contained the following observations at p. 5:
10. In favour of providing that the defence should be given the right to the last speech in all cases there is the general principle that procedure should be such as to favour the defence so far as possible. It may be argued that it is wrong that the defence should have to weigh the advantage of calling a witness against that of having the last word. In any case it is difficult to see on what principle the right to the last speech [i.e., the defence’s closing speech or the prosecution’s reply] should depend on whether or not a witness is called for the defence; and the rule seems generally archaic and not to serve any useful purpose nowadays, especially as the advantage of making the last speech may not be so great now as formerly. . . .
11. Having taken these considerations into account we are of the opinion that it would be advisable to amend the law . . . so as to provide that the defence should always have the right to the last speech. The arguments of principle referred to in paragraph 10 seem to us convincing, and we can see no reasons of principle or convenience against the amendment. In this view we are fortified by the fact that in Scotland the defence always have the right to the last speech and we understand that this causes no difficulty.
The unsatisfactory nature of the present sequence of argument in Canada was noted by the Law Reform Commission of Canada Report on the Jury (1982), at p. 68:
Section [651] of the Criminal Code provides that the right to address the jury last falls to the prosecutor if witnesses are examined by the defence. We are unaware of any compelling reason why this should be so. Indeed, reason would seem to compel the opposite result if it is accepted that the party whose interests are most in jeopardy in a criminal trial should have the last word. Because the sequence of an accusatorial system requires that the prosecution prove its case before the accused is called upon to respond to the accusation against him, we believe that sequence should equally be respected in closing arguments. The Commission therefore recommends that the accused always have the right of last address. [Emphasis added.]
45 The Ontario Court of Appeal in Tzimopoulos freely acknowledged the imperfections of the present arrangement at p. 338 and expressed some support for the recommendations of the Law Reform Commission:
The preceding historical and comparative survey supports the conclusion that the appellant’s submission is not devoid of merit. Indeed, we believe that it would significantly improve our criminal procedure if Parliament implemented the recommendation of the Law Reform Commission or, and perhaps even preferably, enacted legislation that gave the accused an election whether to address the jury first or last. There are undoubtedly many circumstances in which defence counsel would prefer to go first. No harm to the public interest would occur by giving the accused an option.
The Law Reform Commission’s proposal in 1982 that the accused always have the right of last address has not yet been acted upon, or rejected, by Parliament.
Conclusion with Respect to Section 7
46 The foregoing analysis leads to the conclusion that s. 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. Despite the fact that s. 651 has governed the order of jury addresses for over a century, the principles of fundamental justice under s. 7 of the Charter as elaborated by this Court since 1982 requires that the accused be given the right to address the Crown’s actual “inferences, arguments, and ultimate theories”, not merely to confront what defence counsel thinks the Crown will probably be saying after the defence sits down. The right to answer the Crown’s argument should not depend on a defence decision not to call evidence. If the two-speech model is to continue then s. 7 requires that the defence have the right to go last. If a three-speech model is preferred (as discussed below under remedies), the logical sequence in light of the ultimate burden of proof would be prosecution-defence-prosecution. In most cases this would adequately protect the right of the accused to make full answer and defence. If the trial judge were of the view that the Crown had raised a new and prejudicial matter in its reply, contrary to the rule against splitting an argument, a further defence submission on the new point could be permitted.
The Application of Section 11(d)
47 The s. 11(d) issue arises in this case because the appellant 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 his s. 11(d) fair trial rights. My colleagues agree that in cases where the accused is required to go first, circumstances may compel allowing the accused a right of reply. 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, as in my view s. 651(3) contravenes s. 7 of the Charter, the remedy must be directed to s. 651 itself.
Constitutional Validity of Section 651(4)
48 Although s. 651(4), which relates to the sequence of jury addresses in the situation of multiple accused, is not directly in issue on the facts of this appeal, nevertheless its constitutional validity was put in issue by the constitutional questions stated by the Chief Justice. As the reasoning in relation to s. 651(3) is applicable mutatis mutandis to s. 651(4), it would be unhelpful for this Court to pronounce on s. 651(3) without dealing directly with the constitutionality of s. 651(4). I would propose that s. 651(4) be declared of no force or effect as well.
There Is No Section 1 Justification
49 The respondent frankly conceded that if ss. 651(3) and (4) were found to violate the Charter, he had no s. 1 justification to offer. 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 right to call evidence.
50 While the respondent did not rely on an Oakes-type justification (R. v. Oakes, [1986] 1 S.C.R. 103), he did provide the Court with considerable information about the practice in other “free and democratic” societies which, if anything, appears largely to support the appellant.
51 The vast majority of Anglo-American jurisdictions use a standard three-speech format for closing addresses in criminal trials. Following the close of the defence evidence, the prosecution makes its closing address, followed by the defence. The prosecution then has a right of reply, either automatic or discretionary. This is the case in the Australian states of Queensland, Victoria, New South Wales, South Australia; in the American states of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and the District of Columbia, and under the U.S. Federal Courts. See Queensland, The Criminal Code Act 1899, 1899 (Queensland), No. 9, as amended, s. 619; Victoria, Crimes Act 1976, 1976 (Victoria), No. 8870, s. 417; New South Wales, Crimes Legislation Amendment (Procedure) Act 1997, Schedule 1; South Australia, Criminal Law Consolidation Act, 1935-1975, s. 288; (regarding American state practice) J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics (1983), at pp. 139-47, and J. Alexander Tanford, “An Introduction to Trial Law” (1986) 51 Mo. L. Rev. 623; U.S. Federal Rules of Criminal Procedure, Rule 29.1 and Bailey v. State, 440 A.2d 997 (Del. Supr. 1982).
52 In only six American states does the prosecution close last with no right of reply to the defence: Kentucky, Massachusetts, New Hampshire, New Jersey, New York, and Pennsylvania. This same procedure is accepted in the Northern Territory of Australia, but in that jurisdiction the accused is permitted to close after the prosecution when the accused is defended by counsel who calls no witnesses to the facts except the accused: Criminal Code Act, 1997, Schedule 4.
53 All of this suggests that Crown counsel is in good company in conceding that if there were a Charter violation (which of course he denied), the violation is not supported by a comparison with other free and democratic societies.
IV. Remedies
54 As a majority of the Court is persuaded that ss. 651(3) and (4) are constitutionally valid, it is somewhat academic to embark on a discussion of remedies. Suffice it to say that while a simple striking down of ss. 651(3) and (4) would eliminate the objectionable provisions, and clear the way for the trial judge to regulate the order of jury addresses in a particular case in a manner consistent with the Charter rights of the accused, the better approach would have been for this Court to suspend any declaration of invalidity for one year. This delay would permit Parliament, if it wished, to put in place a new statutory framework to govern jury addresses that would be consistent with ss. 7 and 11(d) of the Charter. Parliament may wish to consider the various advantages and disadvantages of a two-speech model versus a three-speech model, and the implications and ramifications of both. The new structure might, for example, create an option for the defence to go first or last, establish a procedure governing the right of reply, and perhaps include other provisions more sophisticated and comprehensive than the Court can initiate by a simple striking down of the two offending subsections.
55 Two of the interveners, the Attorney General of British Columbia and the Attorney General of Canada, for example, suggested that allowing the prosecution to address the jury last is important because it is frequently only at the stage of argument that the Crown learns what affirmative defences the accused is relying on. It is in the interests of justice, they say, that jurors understand the theories of the parties. As the prosecution is not infrequently taken by surprise by such defences, the Crown will be deprived of an opportunity to present a “focused rebuttal” of these defences, and the fairness of the trial will suffer. The Crown, in other words, points out the weakness of the two-speech model in circumstances where the Crown is required to go first. Parliament may conclude that these types of considerations favour a three-speech approach. In a three-speech model the accused would not expect to go last, but the fact the accused has an opportunity to answer the Crown’s principal argument and is subject then only to the very limited Crown right of reply to matters raised by the accused in closing argument, would satisfy his or her s. 7 rights. Ultimately the trial judge can determine whether the Crown has abused its reply and if so to take whatever remedial action he or she thinks necessary.
56 It is evident that both the “three-speech” model and the two-speech “last address” model have their advantages and disadvantages. Each in its own way, however, attempts to ensure that at some point prior to the judge’s charge to the jury the defence has the opportunity to answer whatever is relied upon by the prosecution to obtain a conviction. As pointed out by Professor J. Alexander Tanford, who has written extensively on this subject:
The standard three-argument format is familiar. It appears in formal debates, appellate arguments, and the complaint-answer-reply sequence of civil pleadings. It permits each side the opportunity both to state its position and to respond to the opponent’s argument. The more limited two-argument format undoubtedly evolved from a desire to save time in the crowded trial courts.
See Professor J. Alexander Tanford, “Closing Argument Procedure” (1986), 10 Am. J. Trial Advoc. 47, at p. 77.
57 The selection from among the competing options is properly left to Parliament.
V. Disposition
58 I would propose a declaration that ss. 651(3) and (4) are inconsistent with s. 7 and s. 11(d) of the Charter and are therefore of no force or effect, but that the operation of such declaration be suspended for a year to permit consideration of the issues by Parliament. In light of the fact that the appellant was convicted by a procedure which was found to be violative of his Charter rights, I would propose that the conviction be set aside and a new trial ordered.
The following are the reasons delivered by
//L’Heureux-Dubé J.//
59 L’Heureux-Dubé J. -- Sections 651(3) and (4) of the Criminal Code, R.S.C., 1985, c. C-46, entitle the Crown to deliver its closing address to the jury last, in certain circumstances, with no right of reply by the defence. The appellant alleges that these provisions violate an accused’s right not to be deprived of liberty except in accordance with the principles of fundamental justice, guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms, and the right to a fair trial, guaranteed by s. 11(d). I agree with my colleagues Justices Cory, Iacobucci and Bastarache that the provisions do not violate the Charter, and I agree substantially with their reasoning. There are compelling reasons for Parliament to decide to change the order in which closing addresses are given, which are forcefully set out by Justice Binnie in his reasons. Indeed, many other countries have decided, through the legislative process, to adopt a different model than the one mandated by ss. 651(3) and (4). Nevertheless, the appellant has not shown that the current procedures violate his constitutional right to a fair trial. Although a move to one of the models described by Binnie J. would in my opinion be an improvement on the existing system, the current model does not implicate the fundamental interests protected by ss. 7 and 11(d). I agree that the appellant’s arguments under ss. 7 and 11(d) are similar, and, like my colleagues, I will consider them together.
60 The burden of proof is on the person alleging a violation of his or her Charter rights to show that a given provision does so. In my opinion, the appellant has not shown that speaking first violates the principles of fundamental justice, or leads to an unfair trial. As my colleagues Cory, Iacobucci and Bastarache JJ. demonstrate, the appellant has not shown that going last gives an advantage to the Crown which is not given to the defence. Though the fundamental right to trial fairness might be implicated if the current system led to a bias in favour of the Crown (see R. v. Bain, [1992] 1 S.C.R. 91), this is not the case. The social science evidence tendered shows that there is no particular advantage to speaking last, and this, combined with the fact that many experienced counsel prefer to speak first, demonstrates that speaking last does not provide the Crown with an inherent advantage.
61 Nor can it be said that the provisions violate the right to make full answer and defence. The appellant alleges that he has a constitutional right to respond to the interpretation of the evidence put forward by the Crown. There is a general principle that the Crown should set out its case, make disclosure, and put forward all its evidence before the accused must defend against that evidence. The right to prior knowledge of what is contained in the Crown’s evidence and theory of the case is fundamental because it is the Crown’s burden to present evidence sufficient to show guilt beyond a reasonable doubt. Without knowing the Crown’s basic case, the defence would have to put forward its case in a vacuum, and could not even begin to answer it. (See R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 580, and R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 38.) In contrast, the closing address to the jury is restricted to an interpretation of the evidence. While it may be more difficult to formulate a defence to the Crown’s inferences drawn from the evidence without knowing in advance what will be said, this knowledge 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. Though the “spin” on the evidence may be unexpected, and a closing address may be easier to formulate if counsel knows what the other side will say in its address, it is not fundamental to trial fairness that the defence’s address come after the Crown’s in the same way that it is essential that the defence’s evidence be introduced after the prosecution has put forward its evidence and opening arguments.
62 Were the right to full answer and defence to include the right to “answer” everything the Crown said, the defence would have the constitutional right to have the Crown’s jury address take place before the defence introduced any evidence. Such a change is not constitutionally necessary nor desirable. I agree with the following comments of Ryan J.A. of the British Columbia Court of Appeal in R. v. Nenadic (1997), 88 B.C.A.C. 81, at para. 91:
It is possible that in summing up first defence counsel will fail to recognize an argument available to the prosecution with respect to the significance and value of the evidence. It is also possible that defence counsel will anticipate and try to meet arguments that the prosecutor has failed to realize. But this will not be the first time that the defence must put their mind to the arguments available on the evidence. When the prosecution closes its case the accused must decide whether or not he or she will testify or call other evidence. . . . This decision must be made without the benefit of the prosecution’s final arguments. At the same time it is made after the prosecutor has disclosed its case, made an opening before the jury, and called its evidence. Just as this procedure cannot be condemned as unfair, I am not persuaded that calling on the defence to make its arguments to the jury under the same conditions can be said to be fundamentally unfair.
While it may be preferable for the defence to have the choice to speak to the jury following the prosecution, this does not violate the fundamental rights guaranteed by the constitution.
63 I agree with my colleagues’ comments on the duty of a trial judge, in his or her charge to the jury, to correct inaccuracies and remedy unfairness that occurs because counsel has overstepped the bounds of what should be contained in a proper jury address. I also agree with them that in this case no miscarriage of justice arose from the trial judge’s failure to do so.
Right of Reply
64 However, I do not agree with the argument of Cory, Iacobucci and Bastarache JJ. that a right of reply can be given under the trial judge’s inherent jurisdiction. A trial judge has the power to grant a right of reply under the inherent jurisdiction only if the Code has not excluded the use of this power. As a common law concept, the inherent jurisdiction is subject to the principle of parliamentary sovereignty. In I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, the author states at p. 24:
Moreover, the term “inherent jurisdiction of the court” is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. [Emphasis added.]
In Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., [1976] 2 S.C.R. 475, at p. 480, Dickson J. (as he then was) wrote:
In my opinion the inherent jurisdiction of the Court of Queen’s Bench is not such as to empower a judge of that Court to make an order negating the unambiguous expression of the legislative will.
In R. v. Keating (1973), 11 C.C.C. (2d) 133 (Ont. C.A.), at pp. 135-36, Kelly J.A. noted that the Code
does not restrict the inherent jurisdiction the Court possesses to control its own process and proceedings in any manner not contrary to the provisions of the Criminal Code or any other statute. . . . [Emphasis added.]
Parliament can exclude the inherent jurisdiction by clear and precise statutory language indicating the contrary.
65 Therefore, it must be determined whether ss. 651(3) and 651(4) of the Code have left the trial judge with the inherent power to order a right of reply. The sections read as follows:
651. . . .
(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.
(4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor. [Emphasis added.]
In French they read:
651. . . .
(3) Lorsque aucun témoin n’est interrogé pour un accusé, celui-ci ou son avocat est admis à s’adresser au jury en dernier lieu, mais autrement l’avocat de la poursuite a le droit de s’adresser au jury le dernier.
(4) Lorsque deux ou plusieurs accusés subissent leur procès conjointement et que des témoins sont interrogés pour l’un d’entre eux, tous les accusés, ou leurs avocats respectifs, sont tenus de s’adresser au jury avant que le poursuivant le fasse. [Emphasis added.]
In my opinion, granting a right of reply would contravene the unambiguous terms of these sections of the Code. In a trial where s. 651(3) applies, the trial judge cannot give a right of reply without denying the prosecutor the entitlement or droit to address the jury last. Similarly, when accused are tried jointly, the words “required” and tenus in s. 651(4) prevent the trial judge from granting a right of reply without contravening that provision. This language makes it clear that Parliament has not left open the possibility that the judge may grant a right of reply under the inherent jurisdiction.
66 For this reason, the general principle is that a mistrial is declared if the Crown’s jury address is so improper that it deprives the accused of the right to a fair trial: see Pisani v. The Queen, [1971] S.C.R. 738. Section 24(1) of the Charter, however, enables a Court to grant a constitutional exemption from legislation that is constitutional in its general application if in the circumstances of a particular case an unconstitutional result would otherwise occur. It may be that if the prosecution’s jury address would lead to an unfair trial, and this cannot be corrected by the trial judge’s charge, this would be an appropriate case for an order under s. 24(1) giving a right of reply, in order to avoid the necessity of a second trial. However, this issue was not argued by the parties. In addition, it is not necessary to decide it here since, as stated by my colleagues Cory, Iacobucci and Bastarache JJ., the Crown’s address was not so improper that the appellant’s trial was unfair.
67 For these reasons, I would dismiss the appeal and answer the constitutional questions as proposed by Cory, Iacobucci and Bastarache JJ.
The judgment of Gonthier, Cory, Iacobucci and Bastarache JJ. was delivered by
//Cory, Iacobucci and Bastarache JJ.//
68 Cory, Iacobucci and Bastarache JJ. ‑‑ This appeal concerns the constitutionality of ss. 651(3) and (4) of the Criminal Code, R.S.C., 1985, c. C‑46. Subsection 651(3) 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 or s. 11(d) 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.
I. Facts
69 On January 31, 1990, the deceased, Norma Rose, returned home to London, Ontario from a trip to Florida. Although Ms. Rose had a history of depression and several attempted suicides coincident with severe episodes of depression, the evidence revealed that she had been in good spirits following her trip. She was last seen shortly after her return. On May 1, 1990, her body was recovered from the St. Clair River in Sarnia, Ontario. On October 11, 1990, her luggage was recovered from the Thames River in London, Ontario.
70 The police questioned the appellant on two occasions regarding his mother’s disappearance. Each time he denied any knowledge of her whereabouts. He was arrested in June of 1990 and charged with second degree murder.
71 At trial, the appellant testified that upon his mother’s return from Florida she had been very angry with him as he had failed to keep the house clean and to make various repairs. He stated that an argument ensued, during which he struck his mother on the head, knocking her unconscious. It was the Crown’s theory that, wishing his mother dead and fearful of being charged with assault, the appellant had strangled her immediately after striking her. The appellant denied this version of events, testifying that, upset over hitting his mother, he had fled the house. He stated that when he returned, he found his mother apparently dead, having hanged herself with a coaxial cable. There was no suicide note.
72 The appellant testified that after finding his mother he called a friend, Christopher Henderson, and asked him to come by the house. Henderson was subsequently charged with being an accessory after the fact. Henderson testified that, upon his arrival, the appellant had admitted to killing his mother. He also stated that he and the appellant had discussed various means of disposing of the body to make it appear as if it were a missing person situation. The appellant denied having made the admission, but conceded that he had felt that his mother’s death was his fault in light of their fight an hour earlier.
73 On the following day, the appellant retrieved his mother’s unpacked luggage from a neighbour’s home. According to his testimony, that evening, he wrapped his mother’s body in a green garbage bag and transferred it to the trunk of her car. He moved the car to a different location every two days for the next few days, so that it would not be noticed. The appellant testified that he had driven to a lake near Algonquin Park on February 9, 1990, with the intention of disposing of the body; however, for emotional reasons he was unable to do so. The next day, the appellant and Henderson drove to Sarnia in Ms. Rose’s car with her body still in the trunk. After dark, they tied cement blocks to the body and pushed it into the St. Clair River.
74 In mid‑March of 1990, Henderson told Gregory Jackson, a mutual friend, that the appellant had killed his mother. Jackson testified at trial that approximately one to two weeks later, the appellant told him that he had indeed killed his mother.
75 Forensic evidence was called by both the appellant and the Crown. The experts agreed that Ms. Rose’s death was probably caused by soft asphyxia, which would be consistent with either gentle hanging or soft ligature strangulation. Thus, in light of the medical evidence and Ms. Rose’s history of attempted suicides, suicide was a viable defence.
76 Dr. Jaffe, the last witness called by the defence, testified that a ligature around the neck causes a blue pallor above the ligature. Neither counsel had questioned the appellant about the colour of his mother’s skin above the ligature. When Dr. Jaffe was asked by the Crown during cross‑examination whether the blue pallor would be noticeable at the time the person was discovered, he responded that it would be apparent to a “reasonably skilled observer”. He was not asked and did not explain what training or skill would be required in order to meet this standard.
77 Following the presentation of the defence evidence, counsel for the appellant was required, pursuant to s. 651(3) of the Code, to make his closing address to the jury before Crown counsel did so. Prior to the closing arguments, counsel for the appellant sought a ruling pursuant to the Charter permitting him to address the jury last or to reply to the Crown’s closing address. His application was denied. Counsel for the appellant then addressed the jury, making no reference to Dr. Jaffe’s evidence concerning skin colour. Subsequently, counsel for the Crown addressed the jury and twice asked the jury to draw negative inferences with regard to the appellant’s credibility based on his failure to notice that his mother’s face was blue. Following the judge’s charge to the jury, defence counsel stated that he had not anticipated that the colour of the deceased’s skin was a live issue and thus had not mentioned it in his address. Defence counsel requested that the trial judge review the evidence on this issue with the jury but he refused to do so.
78 The jury found the appellant guilty of second degree murder. The appellant appealed to the Ontario Court of Appeal. The principal issue before the Court of Appeal on the conviction appeal was the constitutionality of the Code provisions which compel counsel for the defence to address the jury before Crown counsel at the close of the case. The appeal was dismissed by the majority of the court. The two dissenting members of the Court of Appeal would have set aside the conviction and ordered a new trial on the basis that the impugned provisions violate s. 7 of the Charter and ought to be declared of no force or effect.
II. Relevant Statutory and Constitutional Provisions
79 Criminal Code, R.S.C., 1985, c. C‑46
651. . . .
(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.
(4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. . . .
III. Judicial History
A. Ontario Court of Appeal (1996), 28 O.R. (3d) 602
(1) Dubin C.J., Brooke and Osborne JJ.A. concurring
80 Dubin C.J. observed that the issue of the constitutionality of the prescribed order of jury addresses under the Code was not a new one. Rather, he noted that it had been fully canvassed in R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304 (Ont. C.A.), leave to appeal denied, [1987] 1 S.C.R. xv, in which the Court of Appeal concluded that s. 651(3) did not violate ss. 7 and 11(d) of the Charter. As in Tzimopoulos, Dubin C.J. stated that the court in the instant appeal was concerned not with whether changing the order of jury addresses would result in fairer trials, but with whether such a change is necessary to preserve the principles of fundamental justice guaranteed under the Charter.
81 After reviewing several authorities which followed Tzimopoulos, supra, Dubin C.J. stated that no arguments had been advanced which would warrant a departure from the holding in that case. He found that there was no evidence to support the assertion that the order of jury addresses prescribed by the Code deprives the accused of the right to a fair trial or violates the principles of fundamental justice. In Dubin C.J.’s view, it was “well known” that many defence counsel prefer to address the jury first. He also noted that in making full answer and defence, it is the evidence that the accused must meet and not the closing address of the Crown.
82 Dubin C.J. acknowledged that there are some defence counsel who prefer to address the jury last. He also took note of the body of opinion that suggests that order of address is of little significance. In his opinion, the divergence of opinion on this matter tends to support a finding that the question of order does not raise constitutional issues. Furthermore, Dubin C.J. observed that it is the trial judge, not Crown counsel, who has the last word to the jury. In his view, any unfairness in the Crown’s address can be rectified by a complaint to the trial judge, who should correct those mistakes by Crown counsel that would result in an unfair trial. Dubin C.J. concluded on this point by citing the wide acceptance of Tzimopoulos, supra, and the advisability of uniformity in the practice of criminal law, as additional reasons why it would be inappropriate to find that Tzimopoulos had been wrongly decided.
83 Dubin C.J. turned next to the appellant’s submission that even if the trial judge had been correct to order defence counsel to address the jury first, the trial judge ought to have given the defence a right of reply. In his view, where Crown counsel’s jury address oversteps the bounds of propriety to such a degree that the resulting unfairness cannot be remedied by the comments of the trial judge, the only way to ensure a fair trial is to give the defence a brief right of reply. He concluded that in the circumstances of the case at bar, there was no need to grant that limited right of reply.
(2) Carthy J.A., Laskin J.A. concurring (dissenting)
84 Carthy J.A. considered the right of reply to the Crown’s address at the outset of his reasons. In his view, isolating this right confuses the real issue. He stated that the right of reply raises a vast number of problematic sub‑issues, all of which detract from the fundamental questions as to whether Charter protections are violated by imposing a condition on defence counsel’s choice of calling and examining or not calling and examining witnesses, and whether requiring the defence to address the jury first can be justified under the Charter. In his view, at p. 618, the “‘only pure answer’ to the Charter issue comes from determining” the answer to these questions.
85 Carthy J.A. found that both the right to make full answer and defence and the “generally accepted value in any context of having the last word” (at p. 619) support the position that those accused persons who wish to address the jury last should, at least, have that choice. In his view, neither the imposition of an arbitrary condition upon the choice as to whether to call and examine witnesses nor requiring the defence to address the jury first where the accused calls and examines witnesses appears to benefit the trial process in any perceptible way. Rather, Carthy J.A. found that the rules in question appear to penalize the accused and are of no apparent benefit to the efficient search for truth.
86 For those who consider the order of address to be an important factor, Carthy J.A. was of the opinion that the impugned provisions of the Code would prejudice their unrelated decision with respect to the calling of evidence. In his view, the presentation of defence evidence is part of full answer and defence and should not be impinged upon arbitrarily. In addition, he maintained that the final address to the jury was also part of the right to make full answer and defence. This, he stated, was clearly manifested in the case at bar by the Crown’s use of rhetoric and persuasive logic to invite inferences detrimental to the appellant’s case for his failure to address the pallor of the deceased’s face and the defence’s inability to match it. He added that it cannot continue to be said that the trial judge can complete an answer by the defence that is less than full. He cautioned against the trial judge’s becoming an advocate on behalf of either party.
87 Turning to s. 11(d) of the Charter, Carthy J.A. found that s. 651 of the Code offends the appellant’s right to be presumed innocent. He questioned why, when the jury hears that the burden is always upon the Crown, the defence has to speak first and defend itself. He was of the opinion that the presumption of innocence could best be upheld if addresses to the jury were made in the same order as evidence is called. In the present case, he noted that Crown counsel’s address had challenged the appellant’s credibility on the basis of his imputed failure to notice the colour of his mother’s face. Carthy J.A. was of the view that the jury might have considered the appellant’s counsel’s silence on this matter to be a significant factor and, if this in fact occurred, the onus of proof was reversed. Carthy J.A. found that the presumption of innocence is a factor to be “synthesized” with others in considering the fairness of the trial. In assessing the degree of unfairness he found it noteworthy that no one was contending that any societal purpose was served by the impugned provisions. He queried why unfairness should be tolerated if nothing is to be gained from its perpetuation.
88 On the basis of all of these considerations, Carthy J.A. at p. 621 held that the impugned provisions of the Code “impose manifest unfairness upon an accused person”. As to the jurisprudence on the subject, he reviewed the leading cases and noted that the majority upheld the constitutionality of the sections now under review. However, he considered it to be of great import (at p. 622) that Tzimopoulos, supra, the leading case in this area, had been decided “when the Charter was in its relative infancy”. In his opinion, since that time, courts have become increasingly willing to assume an assertive role under s. 7 of the Charter and, in appropriate circumstances, have set aside well‑established rules of procedure. Further, he observed that, over time, societal values, or the lack thereof, have assumed a greater role in defining the rights of the accused. It is this “evolution” which served as the basis for Carthy J.A.’s conclusion that the issue before him warranted fresh analysis in the context of the Charter as it is being applied today.
89 Carthy J.A. went on to note that several jurisdictions outside Canada have amended their laws to permit the defence to address the jury last in all circumstances and that the Law Reform Commission of Canada has recommended that this country follow suit.
90 Carthy J.A. concluded that the provisions under attack violated s. 7 of the Charter. He noted that the Crown had not suggested a justification for the violation under s. 1 and stated that he could not find one. Thus, he would have declared the impugned provisions of no force or effect but suspended the declaration for six months to permit Parliament to pass amending legislation.
IV. Issues
91 The following constitutional questions were set for determination in this appeal:
1. Does s. 651(3) or 651(4) of the Criminal 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, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?
2. If the answer to Question #1 is yes, is the said infringement or denial of the s. 7 right, a reasonable limit which can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?
3. Does s. 651(3) or 651(4) of the Criminal Code infringe or deny the right of an accused person to a fair trial at which he or she is presumed innocent, as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms?
4. If the answer to Question #3 is yes, is the said infringement or denial of the s. 11(d) right, a reasonable limit which can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?
V. Analysis
A. Introduction
92 Subsection 651(3) of the Code reads as follows:
651. . . .
(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.
Subsection 651(4) ensures that this same order of address is maintained where two or more accused are tried jointly and any one of them calls and examines witnesses:
651. . . .
(4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.
93 The appellant submits that these provisions violate s. 7 of the Charter, because (1) they interfere with the accused’s right to make full answer and defence, by restricting the accused’s ability to know the Crown’s full case prior to responding with the final jury address, and (2) they create procedural unfairness by requiring an accused person to choose between two fundamental protections, namely, the right to call and examine witnesses in one’s own defence on the one hand, and the right to answer the Crown’s entire case on the other hand. The requirements of the impugned sections also violate the right to be presumed innocent and to a fair trial under s. 11(d) of the Charter, the appellant submits, largely for the same reasons.
B. Interplay of Sections 7 and 11(d) of the Charter
94 Sections 7 and 11(d) of the Charter provide as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. . . .
95 It is well established that the legal rights set out in ss. 8 through 14 of the Charter address, among other things, specific deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice, and that these provisions are therefore illustrative of the meaning of the principles of fundamental justice: see Reference re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486, at p. 502, per Lamer J. (as he then was). Similarly, all of the legal rights provisions are to be informed in their interpretation and application by the principles of fundamental justice. In particular, ss. 7 through 14 are informed by the cardinal principles of the presumption of innocence and the right to a fair trial. The principles of fundamental justice and the requirements of s. 11(d) are “inextricably intertwined”: see R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603.
96 The appellant has articulated his claim under both s. 7 and s. 11(d) of the Charter, although he concedes that much of his argument relating to s. 7 applies equally to s. 11(d). We agree with the proposition that Charter claims should be articulated under the more specific legal rights guarantees where an alleged infringement falls squarely within a particular provision: see, e.g., R. v. Généreux, [1992] 1 S.C.R. 259, at p. 311, per Lamer C.J. In this case, the appellant’s focus is upon the alleged infringement of the right to make full answer and defence, as well as upon the procedural unfairness of being required to choose between exercising this right and exercising the right to choose whether to defend oneself through the calling and examination of witnesses. These are matters which are governed by both ss. 7 and 11(d) in cases where, as here, the potential loss of life, liberty or security of the person is at issue. Although the appellant invokes the presumption of innocence and the right to a fair trial under s. 11(d) in articulating his claim, we are of the view that in the circumstances of this case it will serve no analytical purpose to attempt to isolate certain aspects of his claim as being best dealt with under s. 11(d) rather than s. 7. In this case, 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.
C. Full Answer and Defence
97 It will be useful to address the appellant’s full answer and defence claim at the outset, as it affects his argument that ss. 651(3) and (4) set up an unfair requirement to choose between two constitutionally protected rights.
98 The right to make full answer and defence is protected under s. 7 of the Charter. It is one of the principles of fundamental justice. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336, Sopinka J., writing for the Court, described this right as "one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted". The right to make full answer and defence manifests itself in several more specific rights and principles, such as the right to full and timely disclosure, the right to know the case to be met before opening one’s defence, the principles governing the re‑opening of the Crown’s case, as well as various rights of cross‑examination, among others. The right is integrally linked to other principles of fundamental justice, such as the presumption of innocence, the right to a fair trial, and the principle against self‑incrimination.
99 As suggested by Sopinka J. for the majority of this Court in Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, however, the right to make full answer and defence does not imply an entitlement to those rules and procedures most likely to result in a finding of innocence. Rather, the right 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. As stated by Sopinka J., at p. 1515:
The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence.
The sentiment expressed by Sopinka J. in Dersch accords with the more general principle stated by La Forest J. for the majority of the Court in R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 361‑62, that while “at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness”, nevertheless the entitlement to procedural fairness does not entitle the accused to “the most favourable procedures that could possibly be imagined”. Similar statements of this principle are found in R. v. Harrer, [1995] 3 S.C.R. 562, at p. 573, per La Forest J.; R. v. Finta, [1994] 1 S.C.R. 701, at p. 744, per La Forest J.; R. v. Bartle, [1994] 3 S.C.R. 173, at p. 225, per L’Heureux‑Dubé J.; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.; and Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 540, per La Forest J.
100 In order for the appellant to demonstrate that s. 651(3) of the Code infringes his right to make full answer and defence, he must show that the inability to address the jury after the Crown has done so unfairly interferes with his ability to defend himself and to answer the Crown’s case. The essential question is whether the order of jury addresses set out in the impugned legislative provision creates an unfairness. Unfairness would exist, for example, if addressing the jury last provided an advantage to the Crown which was therefore denied to the defence, or if addressing the jury first interfered with the accused’s right not to incriminate himself. Although there may be better ways that Parliament could structure the determination of the order of jury addresses, the question of whether or not the appellant’s Charter rights have been infringed is concerned only with whether the existing provisions are unfair.
101 In the court below, Dubin C.J. stated, at p. 613, that in making full answer and defence, "it is the evidence that the defence must meet, not the address of Crown counsel”. The appellant rejects this conceptualization of the right as being overly narrow. He suggests that the right to make full answer and defence contemplates the right to make a "complete" answer to all aspects of the Crown's case, and not merely to those aspects or theories of the case which defence counsel may be able to ascertain from the evidence at trial, without the benefit of first hearing the actual theory of the Crown as revealed by its jury address.
102 In our view, it is useful to distinguish here between two discrete aspects of the right to make full answer and defence. One aspect 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. The right to know the case to meet is long settled, and it is satisfied once the Crown has called all of its evidence, because at that point all of the facts that are relied upon as probative of guilt are available to the accused in order that he or she may make a case in reply: see R. v. Krause, [1986] 2 S.C.R. 466, at p. 473, per McIntyre J.; John Sopinka, Sidney Lederman and Alan Bryant, The Law of Evidence in Canada (1992), at p. 880. This aspect of the right to make full answer and defence has links with the right to full disclosure and the right to engage in a full cross‑examination of Crown witnesses, and is concerned with the right to respond, in a very direct and particularized form, to the Crown’s evidence. Inherent in this aspect of the right to make full answer and defence is the requirement that the Crown act prior to the defence’s response.
103 A second and broader aspect of the right to make full answer and defence, which might be understood as encompassing the first aspect, is the right of an accused person to defend himself 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. In our view, the jury address is an example of a situation in which an accused is equally capable of defending himself or herself against the Crown regardless of whether the Crown acts first or last. The defence jury address is both a response to the Crown’s evidence and a defence against the argument and persuasion to be contained in the Crown jury address. As we discuss below, there is no evidence that an accused who addresses the jury first is less able to defend against the persuasive aspects of the Crown jury address than an accused who goes last. As such, although the jury address does bring into play the right to make full answer and defence, that right is not infringed by the procedures prescribed in s. 651(3) of the Code.
104 The purpose of the jury address was accurately described by Robert White, Q.C., in The Art of Trial (1993), at p. 213, as being “to present a party’s case clearly and in a way that is of help to the court in the performance of its duty”. Generally speaking, counsel are “limited to reviewing and commenting on the evidence and to the making of submissions which may properly be supported by the evidence adduced”: see Gray v. Alanco Developments Ltd., [1967] 1 O.R. 597 (C.A.), at p. 601. Nonetheless, few would deny the powerful persuasive force which well‑crafted and skilfully presented submissions may have in a jury trial. What is more debatable are the persuasive force and other advantages associated with addressing the jury either first or last.
105 The appellant submits that the right to address the jury last is a "fundamental advantage which simply speaks for itself": see Raysor v. State, 272 So.2d 867 (Fla. 1973), at p. 869. In particular, he focuses on the idea that being required to address the jury first deprives an accused person of the ability to know the Crown’s theory of the case, and to structure the closing jury address in such a manner as to respond most effectively to the Crown’s submissions. The accused cannot defend against or answer a theory of the case, and an interpretation of the evidence in light of that theory, the appellant suggests, when the accused is required to speak first. Moreover, because it occurs first, the accused’s jury address provides the Crown with the ability to structure its submissions in such a manner as to counter and undercut the accused’s defence.
106 We do not agree that the order of jury addresses significantly affects 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. There is no evidence which the Crown will be interpreting 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.
107 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. In presenting closing submissions to the jury, Crown counsel must be accurate and dispassionate. Counsel should not advert to any unproven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel's personal observations or experiences. As noted by Lamer C.J. writing for the majority in R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 580, "[o]nce the defence starts to ‘meet the case’, thus revealing its own case, the Crown should, except in the narrowest of circumstances be 'locked into' the case which, upon closing, it has said the defence must answer. The Crown must not be allowed in any way to change that case". Although the comments of Lamer C.J. in P. (M.B.) were addressed to the issue of the ability of the Crown to re‑open its case, they are also applicable to the content of the Crown jury address. Crown counsel is duty bound during its jury address to remain true to the evidence, and must limit his or her means of persuasion to facts found in the evidence presented to the jury: see, e.g., Pisani v. The Queen, [1971] S.C.R. 738; R. v. Munroe (1995), 96 C.C.C. (3d) 431 (Ont. C.A.), aff'd [1995] 4 S.C.R. 53; R. v. Neverson (1991), 69 C.C.C. (3d) 80 (Que. C.A.), aff'd [1992] 1 S.C.R. 1014; and R. v. Charest (1990), 57 C.C.C. (3d) 312 (Que. C.A.). As is discussed in more detail below, the discretion of the trial judge to deal with those situations in which Crown counsel's address oversteps the bounds of propriety is a sufficient safeguard against any potential unfairness to the accused.
108 For the parties to a jury trial, success in convincing the jury to find in their favour flows from three essential ingredients, namely, a sufficient evidentiary foundation to support the legal result sought to be reached, skilful advocacy in interpreting the evidence for the jury, and appropriate jury instructions by the trial judge. Skilful advocacy involves taking the information acquired as a result of the trial ‑‑ the evidence, the other party’s theory of the case, and various other, intangible factors ‑‑ and weaving this information together with law, logic, and rhetoric into a persuasive argument. Although not all jury addresses are, in actuality, either logically or rhetorically persuasive, there can be no denying the role of a party’s persuasive skill in influencing the result in some jury trials. In this respect, we find little if any evidence to support the proposition that addressing the jury last would provide the accused with a persuasive advantage.
109 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, both of which, as just discussed, the accused will know prior to addressing the jury at the close of the defence evidence. The accused’s jury address is his or her opportunity to answer the Crown evidence and theory of the case with argument and persuasion. Persuasion is a subtle force, which cannot be easily linked with any strict procedural rule regarding the order in which the parties are entitled to attempt to persuade the jury. Some would argue, as the respondent has suggested, that the party who is given the opportunity to address the jury first has an advantage in being able to create in the jury’s minds a vivid image and a story regarding what is alleged to have occurred, which will be difficult for the other party to replace. The result of the accused’s addressing the jury first in a criminal trial may be to place the Crown on the defensive by undercutting in advance the argument sought to be made against the accused.
110 The view that addressing the jury first may be an advantage for some accused persons has been endorsed by more than one provincial court of appeal. In the Court of Appeal below, Dubin C.J. stated, at p. 613, that it is "well known that many learned and experienced defence counsel prefer to address a jury first. . . . Many defence counsel are of the opinion that there is an advantage in addressing the jury first, shortly after the evidence of the defence is tendered, when it is fresh in the jury's mind”. Similarly, in its earlier decision in Tzimopoulos, supra, at p. 338, the Court of Appeal noted that, "[t]here are undoubtedly many circumstances in which defence counsel would prefer to go first". In R. v. Hutchinson (1995), 99 C.C.C. (3d) 88, at p. 95, the Nova Scotia Court of Appeal concluded as follows:
There is also a body of opinion that counsel who first addresses the jury has the advantage. If the jury is persuaded by that counsel's argument it is difficult for the counsel who speaks last to move the jurors from an established view. On the other hand there are those who consider the right to speak to the jury last is of great value. It would not appear to be of great significance who speaks first or last.
See also R. v. F.G., [1994] M.J. No. 732 (C.A.); and R. v. Strebakowski (1997), 93 B.C.A.C. 139.
111 The accuracy of these jurisprudential remarks is generally supported by the social science literature, much of which indicates that under conditions similar to those which exist in a courtroom, the address which is presented first will be more effective and influential than the address given last: see, e.g., Robert G. Lawson,"The Law of Primacy in the Criminal Courtroom" (1969), 77 J. of Soc. Psychol. 121; D. P. Schultz, "Primacy‑Recency Within a Sensory Variation Framework" (1963) 13 Psychol. Rec. 129; Robert E. Lana, "Familiarity and the Order of Presentation of Persuasive Communications" (1961) 62 Abn. & Soc. Psychol. 573; and Michael J. Saks and Reid Hastie, Social Psychology in Court (1978), at p. 103.
112 The appellant submits that the studies and judicial statements which contend that addressing the jury first is an advantage are "speculative" and without "factual underpinning". We agree that there are inherent frailties in studies which attempt to simulate courtroom conditions. Thus, the social science evidence is not in itself determinative of whether, in fact, it is an advantage to address the jury either first or last. However, the appellant has not referred us to social science evidence which suggests that there is a persuasive advantage to addressing the jury last. In our view, and with respect for those who hold a contrary opinion, 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, as the appellant suggests. In these circumstances, we agree with the conclusion of Dubin C.J. in the court below that the divergence of opinion on this issue counsels against a finding that the Charter has been violated, because it is not unfair to require an accused person to engage in one of two equally advantageous jury address procedures. The impugned provisions of the Code therefore do not infringe upon the appellant’s right to make full answer and defence under ss. 7 and 11(d) of the Charter.
113 In the present case, the appellant asserts that it is not primarily the persuasive advantage of addressing the jury last which has resulted in a denial of the right to make full answer and defence, but rather the fact that addressing the jury first has deprived the accused of the ability to respond to specific statements made by the Crown in its address with which the accused disagrees. The appellant refers in particular to the inferences which the Crown asked the jury to draw from the expert evidence that the deceased would have had a blue pallor to her face after death had she hanged herself, and the failure of the accused to advert to having seen such a pallor.
114 The “blue‑face” evidence was elicited by the Crown in cross‑examination of the defence expert, Dr. Jaffe. Dr. Jaffe testified that a ligature around the neck would cause a blue pallor above the ligature, and that this blue pallor would be noticeable to “a reasonably skilled observer”. The appellant’s submission with respect to the “blue‑face” evidence relates primarily to the facts that (a) it was not clear from the expert’s testimony who would qualify as a reasonably skilled observer, and (b) when the appellant had testified prior to Dr. Jaffe, he was not questioned about the colour of the victim’s face. The appellant contends that, had he been given the opportunity to address the jury after the Crown, his counsel would have been able to relate these concerns about the evidence to the jury.
115 It was open to counsel for the accused to address this evidence in his closing address to the jury. It was also open to counsel to re‑examine Dr. Jaffe in order to determine whether the appellant could be considered “a reasonably skilled observer”, or to ask that the appellant be recalled in order to question him regarding the existence of the blue pallor. Counsel for the accused apparently did not consider the issue of the blue pallor to be significant enough to do any of these things. In our view, standing alone, the fact that the Crown adverted to the blue pallor in his jury address, while the accused did not do so in his, reveals not an unfairness in the jury address procedure but merely a tactical choice by each party as to what to emphasize in its submissions. The appellant’s trial counsel was fully aware of the “blue face” evidence that had been adduced, and must have known from the nature of the Crown’s cross‑examination of Dr. Jaffe on this point that the Crown viewed the existence of the blue pallor as relevant to the question of the appellant’s guilt. If, as occurred here, trial counsel for the accused chose not to answer this evidence in his jury address, this was a strategic decision and not an unfairness imposed upon the appellant by the Code.
116 Having said this, it is important to stress the following: the appellant’s focus in this case has been not only upon the alleged unfairness which flows from not being able to reply to the Crown’s submissions as a general matter, but also and perhaps most importantly upon the unfairness which flows from not being able to reply, in particular, to Crown submissions to the jury which are misleading or unsupported by the evidence. The right of an accused in the latter circumstance to a corrective instruction by the trial judge, or to a limited reply, is discussed in more detail below. In stating that s. 651(3) of the Code does not infringe as a general matter upon an accused person’s right to make full answer and defence to the Crown’s case under s. 7 of the Charter, we do not intend to derogate from the principles governing those exceptional cases in which an accused will have a right of reply or a right to a corrective instruction.
117 It is also important to comment upon the appellant’s submissions regarding the inconsistency of the Code jury address provisions with comparable provisions in other jurisdictions. The appellant notes that legislation similar to ss. 651(3) and (4) has been recognized as procedurally unfair and abolished in several jurisdictions. The Law Reform Commission of Canada expressed similar sentiments in its 1982 Report on the Jury, and recommended that the Code be amended to require the Crown to address the jury first, followed by the accused. It commented as follows, at p. 68:
Section 578 [now s. 651] of the Criminal Code provides that the right to address the jury last falls to the prosecutor if witnesses are examined by the defence. We are unaware of any compelling reason why this should be so. Indeed, reason would seem to compel the opposite result if it is accepted that the party whose interests are most in jeopardy in a criminal trial should have the last word. Because the sequence of an accusatorial system requires that the prosecution prove its case before the accused is called upon to respond to the accusation against him, we believe that sequence should equally be respected in closing arguments. The Commission therefore recommends that the accused always have the right of last address.
118 We, like the Court of Appeal for Ontario in Tzimopoulos, supra, and in this case, believe that adopting the recommendations of the Law Reform Commission or, alternatively, allowing the accused to elect whether to address the jury first or last, could very well be an improvement upon the existing legislation. Granting the accused an option as to whether to address the jury first or last would presumably be welcomed by defence counsel, who may feel that it assists differently in different cases to address the jury last rather than first, or the opposite. However, as was stated earlier, granting the accused an additional advantage in this way does not equate to remedying an unfairness in the legislation. The existing provisions regarding the order of jury addresses are fair; they may just not be the most desirable.
D. Procedural Fairness
119 The appellant submits that, beyond infringing his right to make full answer and defence, the impugned sections of the Code infringe upon his right to procedural fairness as guaranteed by ss. 7 and 11(d) of the Charter. He bases this submission primarily upon the view that ss. 651(3) and (4) of the Code unfairly require the accused to choose between two constitutionally protected rights, namely, the right to call and examine witnesses in one's own defence, and the right to make full answer and defence to the case for the Crown. The appellant suggests that the impugned provisions impose a penalty for exercising what should be an unqualified right to call and examine witnesses in one's defence. The provisions, he contends, legislate an unjustifiable “no win” procedural trap for an accused, since any choice he or she makes will result in the loss of one right or the other.
120 It has just been explained that the accused’s inability to address the jury last does not constitute a violation of the right to make full answer and defence. As such, the accused who is faced with the choice of whether or not to call and examine witnesses in defence is not confronted with the unfair requirement to choose between two constitutionally protected rights. At most, if the accused’s counsel in a particular case subjectively views addressing the jury last as an advantage, the accused is faced with having to weigh one perceived tactical advantage among the various other factors which go towards determining whether or not to call and examine defence witnesses. Objectively speaking, though, there is little evidence to suggest that there is a tactical advantage to addressing the jury last, and at least some evidence in favour of the view that it is advantageous to address the jury first. In these circumstances, we do not find any procedural unfairness in the manner in which the Code orders jury addresses by counsel.
E. Presumption of Innocence
121 A final argument which requires comment is the submission that ss. 651(3) and (4) of the Code infringe upon the appellant’s right to be presumed innocent under ss. 7 and 11(d) of the Charter. Here we are concerned, not with the violation of the presumption of innocence which is inherent in an infringement of the right to make full answer and defence, but with the possibility that the order in which counsel address the jury may influence the jury’s perception of who bears the burden of proof in a criminal trial. The jury may assume that, because the accused addresses them first, he or she is presumed to be guilty unless able to persuade the jury otherwise.
122 We do not agree that a properly instructed jury would 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. It is a fundamental principle of our criminal justice system that a jury must be instructed in clear terms by the trial judge that it is the prosecution which bears the burden of proving the accused’s guilt beyond a reasonable doubt. A failure to instruct the jury regarding this essential point will justify a new trial: see R. v. Lifchus, [1997] 3 S.C.R. 320. Moreover, the entire trial itself proceeds on the same basis. The Crown presents its evidence in support of a finding of guilt. That evidence is usually rigorously challenged by the defence, and is followed in many cases by defence evidence seeking to show that the Crown has not satisfied its burden of proof. Defence counsel’s address unfailingly confirms the prosecution’s burden of proof, by emphasizing the nature of the burden and explaining why it has not been met. Indeed, if he or she considers it desirable to do so, defence counsel is permitted to inform the jury of the existence of Code provisions requiring the defence to address the jury first. The argument that the order of the jury addresses may cause the jury to ignore the clear instructions of the trial judge is, therefore, not a plausible one. In these circumstances, we find that ss. 651(3) and (4) do not infringe upon the appellant’s right to the presumption of innocence.
F. Subsection 651(4)
123 The analysis to this point has dealt with s. 651(3) of the Code. However, it applies equally to s. 651(4). Subsection 651(4) of the Code sets out the order of address for multiple accused, and states that where any of the accused calls and examines witnesses, all of the accused are required to address the jury before the Crown does so. Although the present case does not provide a factual basis for the determination of whether s. 651(4) violates ss. 7 and 11(d) of the Charter, the principles outlined above mandate a finding that s. 651(4) is similarly constitutional. Because the order of address does not violate the right to make full answer and defence or otherwise effect procedural unfairness upon the accused, the fact that s. 651(4) deals with multiple accused does not change the Charter inquiry. It is true that 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. However, since the order of address does not infringe the Charter rights of an accused, the fact that the accused did not have the choice to address the jury before the Crown is of no consequence.
G. The Ability of the Trial Judge to Rectify Errors in Jury Addresses of Counsel
124 What action can be taken by a trial judge when the Crown or defence counsel’s closing address to the jury contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn? As Dubin C.J. observed in the court below, there are two approaches available to a trial judge to remedy unfairness resulting from an improper closing address.
125 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. Let us first consider a correction made by the trial judge as part of the charge to the jury.
(1) Curative Jury Instructions
126 It cannot be forgotten that the trial judge is the last person to speak to the jury. The trial judge is also in the best position to assess the significance of the remarks of counsel, to determine if they need to be corrected, and, if necessary, to correct inaccuracies and remedy any unfairness that may arise from the addresses of counsel. Indeed, from the point of view of counsel, it is a humbling experience to have the trial judge point out errors in their addresses. It is this ability of the trial judge to correct addresses of counsel that provides an element of control which helps to curb inaccuracies, exaggeration and unfair comments by counsel. Moreover, it ensures that the trial process is fair which, after all, is one of the fundamentally important functions of the presiding judge. The judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process. Taking this step will ensure fairness in the vast majority of cases. On this issue we are in complete agreement with these comments of Dubin C.J., at p. 613:
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.
127 The Ontario Court of Appeal correctly observed in Munroe, supra, that the trial judge is best able to assess the impact that improper remarks will have on a jury and to determine whether remedial steps are necessary. However, where the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial could well be ordered. It is not only appropriate for a trial judge, in the charge to the jury, to undertake to remedy any improper address by counsel, but it is the duty of the trial judge to do so when it is required. This has been emphasized in a number of decisions of this Court: see, e.g., Grabowski v. The Queen, [1985] 2 S.C.R. 434, at p. 455; R. v. Romeo, [1991] 1 S.C.R. 86; Finta, supra; R. v. Michaud, [1996] 2 S.C.R. 458.
128 In the course of correcting the addresses of counsel, the trial judge should deal in a fair and balanced fashion with both sides of the case. The curative instructions should not indicate that the judge is favouring the arguments of one party over another, nor should they appear to engage in contentious argument with the address of counsel for one of the parties: see R. v. Pouliot, [1993] 1 S.C.R. 456, rev’g (1992), 47 Q.A.C. 1.
129 In the case at bar, it would have been preferable if the trial judge had directed the jury to consider the qualifying testimony of the defence pathologist that the discolouration would only have been apparent to a trained observer. This comment would have alleviated any unfairness or perception of unfairness in the eyes of the accused arising from the Crown’s address. However we agree with the Court of Appeal’s conclusion that 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.
(2) The Inherent Jurisdiction of Superior Court Judges Provides a Basis For Granting a Limited Opportunity to Reply
130 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. In R. v. Osborn, [1969] 1 O.R. 152, the Ontario Court of Appeal correctly observed that courts have from the earliest times invoked an inherent jurisdiction to prevent the abuse of trial process resulting from oppressive or vexatious proceedings. In Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497, at p. 520, Lord Guest referred to the overriding duty of the trial judge to ensure that a trial is fair. He wrote that this duty: “springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused”.
131 The appellant argued that the explicit language of s. 651 makes it impossible for a trial judge to allow a right of reply. However, this contention appears to confuse the exercise of discretion with the exercise of inherent jurisdiction. As I. H. Jacob noted in “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at p. 25:
The inherent jurisdiction of the court is a concept which must be distinguished from the exercise of judicial discretion. These two concepts resemble each other, particularly in their operation, and they often appear to overlap, and are therefore sometimes confused the one with the other. There is nevertheless a vital juridical distinction between jurisdiction and discretion, which must always be observed.
Discretion is usually conferred on a judge by the words of a statutory provision. For instance, the use of the words “may” or “can” provides a judge with the ability to make a choice between two or more alternatives. By contrast, a trial judge always possesses an inherent jurisdiction to ensure that the trial is conducted fairly. Inherent jurisdiction cannot be circumvented by narrow or confining statutory language. Jacob aptly described this fundamentally important residual power in this way, at pp. 27‑28:
For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life‑blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.
132 Similarly in Amato v. The Queen, [1982] 2 S.C.R. 418, at p. 449, Estey J. quoted with approval the words of Jessup J.A. in Osborn, supra, at p. 155: “. . . the Courts of this Province have from the earliest times invoked an inherent jurisdiction to prevent the abuse of their process through oppressive or vexatious proceedings”.
Estey J. continued, at p. 453:
It follows therefore that the observations of Jessup J.A. in Osborn with reference to the origins and breadth of the trial court discretion to protect the processes of the courts from abuse remain substantially unimpaired by succeeding decisions in this Court.
See also R. v. Young (1984), 46 O.R. (2d) 520 (C.A.), at pp. 541 and 547.
133 It can be seen that the inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court’s process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed can only be accomplished by clear and precise statutory language. There is not that clear and precise language in s. 651 which removes or impairs the inherent jurisdiction of the court to achieve trial fairness by prohibiting the court from granting a right of reply to defence counsel when that is required.
134 It is the existence of this significant residual jurisdiction which enables a trial judge to permit defence counsel to reply to an improper Crown address.
135 Thus, if a trial judge concludes that the unfairness caused by an improper jury address cannot be remedied in the instructions to the jury, the inherent jurisdiction can be exercised to allow the prejudiced party an opportunity to reply. The position was clearly and correctly outlined in the reasons of Dubin C.J. in these words, at p. 614:
There may be cases where, by reason of the Crown addressing the jury last, the only way a fair trial can be assured is by giving defence counsel a brief right of reply. That would be so when Crown counsel’s jury address gives rise to an issue that is so serious that comment by the trial judge in his charge to the jury will not suffice to ensure a fair trial.
It must be emphasized that the reply must be confined to those issues improperly dealt with by Crown counsel. It cannot be used simply to restate the original position of the defence or to advance new arguments or theories.
136 It follows that, where the Crown is entitled to address the jury last pursuant to s. 651, the trial judge may 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. The intervener the Attorney General for Alberta properly observed that just 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.
137 Nonetheless, in light of the evidence presented in this case and the addresses of counsel, and taking into account the entire charge to the jury, we agree with the Court of Appeal that it was not incumbent upon the trial judge to grant Mr. Rose’s counsel an opportunity to reply. Nor did any substantial miscarriage of justice result from his failure to refer specifically to and to correct the improper statements of Crown counsel in his charge to the jury.
VI. Disposition
138 In the result, the appeal must be dismissed and the Order of Court of Appeal confirmed.
139 We would thus answer the constitutional questions as follows:
Question 1: Does s. 651(3) or 651(4) of the Criminal 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, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 2: If the answer to Question #1 is yes, is the said infringement or denial of the s. 7 right, a reasonable limit which can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?
Answer: In light of the answer to Question 1, it is not necessary to answer this question.
Question 3: Does s. 651(3) or 651(4) of the Criminal Code infringe or deny the right of an accused person to a fair trial at which he or she is presumed innocent, as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms?
Answer: No.
Question 4: If the answer to Question #3 is yes, is the said infringement or denial of the s. 11(d) right, a reasonable limit which can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?
Answer: In light of the answer to Question 3, it is not necessary to answer this question.
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.
Solicitor for the appellant: Keith E. Wright, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Sainte‑Foy.
Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.