Opening and Closing Address

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Opening Submissions

Effect of Inappropriate Submissions
Inflammatory remarks during opening submissions may allow for a mistrial, particularly in the context of a jury trial.[1]

Crown Submissions
Crown remarks to a jury stating that the greatest sin is for the prosecution to convict an innocent person and how the system is designed not to prosecute the innocent produced a mistrial.[2]

The Crown submissions should focus on introducing the parties, explaining the process and giving an overview of the Crown evidence.[3] Before a jury, the Crown should not go into detail about the role and duties of the Crown in its opening.[4] Such comments invites "invidious comparison" with the role defence counsel and may undermine their credibility before a jury. [5]

  1. Stewart v Speer (1953), [1953] O.R. 502 (Ont. C.A.), 1953 CanLII 153 (ON CA)
    Landolfi v Fargione (2006), 2006 CanLII 9692 (ON CA), 2006 CarswellOnt 1855 (Ont. C.A.)
  2. R v Brown, 2009 BCSC 1870 (CanLII)
  3. R v Patrick, 2007 CanLII 11724 (ON SC) at para 5 -- error in detailing the role of crown remedied by jury warning
  4. Patrick, ibid.
  5. R v Levert, 2001 CanLII 8606 (ON CA) at para 30, 31
    See also R v Boucher, [1955] SCR 16, 1954 CanLII 3 (SCC) - Crown improperly suggested that the crown only takes guilty people to trial

Closing Submissions

Order of Submissions

Section 651 governs the order of the closing submissions:

Summing up by prosecutor
651. (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.
Summing up by accused
(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.
Accused’s right of reply
(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.
Prosecutor’s right of reply where more than one accused
(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.
R.S., c. C-34, s. 578.


CCC

The accused argues first where defence evidence is called, otherwise the Crown argues first.

Substance of Submissions

Both counsel have a "fair degree of latitude" on their closings. They are each entitled to "advance his ... position forcefully and effectively", it is expected that there will be "a degree of rhetorical passion in that presentation." [1]

Violations of these requirements may sometimes result in a mistrial. However, the prejudices arising from this conduct can often be remedied by additional jury instructions.[2]

Ability of Judge to Restrict Submissions
A judge must allow counsel an opportunity to make closing submission in full.[3] Nevertheless, the judge can still comment on the evidence during the submissions and may attempt at focusing the argument on particular issues of concern. The judge cannot prevent counsel from making submissions on relevant issues.[4] A trial judge does not have to be silent during submissions and can voice concerns.[5] He is permitted to express a preliminary opinion on the evidence or the law during submissions.[6]

Submissions by counsel on issues before the court cannot be intentionally or inadvertently denied by the court. A failure would result in a new trial.[7]

Inappropriate Submissions
Where counsel makes false or erroneous submissions in the address to a jury, the judge must give corrections in the jury instruction.[8]

Counsel cannot give evidence during their closing submissions.[9] This includes giving explanations as to why the accused did not choose to testify.[10]

A "passing reference" to the risk of wrongful conviction or miscarriages of justice is a legitimate argument in a jury address.[11] Repeating the point can amount to intimidation to the point of demanding an acquittal despite sufficient evidence of guilt.[12]

The party calling a witness does not need to assert that the trier of fact accept everything said by the witness wholesale. [13]

Crown counsel can ask that the trier reject evidence of a Crown witness in preference of other evidence heard. However, counsel cannot ask for the rejection of evidence in favour of a theory not in evidence.[14] Likewise, a party is not precluded from calling evidence that may contradict other witnesses called by the same party.[15]

A judge is required to correct with the jury any missteps of counsel in their closing irrespective of whether the issue was raised by either counsel.[16] One manner of curing the error in submissions to the jury is by "drawing the jurors’ attention to the misstatements and emphasizing that they do not constitute evidence".[17] Only in the "clearest cases" should a party be granted "limited opportunity to reply".[18]

Specific Crown Obligations
Once the Crown has completed their evidence, it is not allowed to change it's theory of the case because of the addition of defence evidence.[19]

The Crown cannot argue a position that is based on speculation and not supported by the facts.[20]

However, the Crown must: [21]

  • "abstain from inflammatory rhetoric",
  • abstain from "demeaning commentary and sarcasm",
  • not "misstate the law",
  • "not invite the jury to engage in speculation" [22]
  • not "express personal opinions about either the evidence or the veracity of a witness" [23]

Crown counsel should not state their own personal opinion to the jury, misrepresent the evidence and use rhetorical excess that may affect the jury.[24]

  1. R v Daly, (1992), 57 O.A.C. 70(*no link) at p. 76
    R v Boudreau, 2012 ONCA 830 (CanLII) at para 15 onward
    see also R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266 , at para 339
  2. R v Boudreau, 2012 ONCA 830 (CanLII) at para 20
  3. R v Al-Fartossy, 2007 ABCA 427 (CanLII), 425 A.R. 336 at para 25
  4. R v Hodson, 2001 ABCA 111 (CanLII) at paras 33 and 35
  5. R v W.F.M. (1995), 169 A.R. 222 (C.A.)(*no link) at para 10
  6. R v Baccari, 2011 ABCA 205 (CanLII) at para 24
    R v Johnson, 2010 ABCA 392 (CanLII) at para 14
  7. Dewey v Dawson-Moran, 2011 ABCA 45 (CanLII) at 12
    R v Komarnicki, 2012 SKQB 140 (CanLII)
  8. see R v Romeo, 1991 CanLII 113 (SCC), [1991] 1 SCR 86 at para 95
    R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262 at paras 126 and 127
  9. R v Smith, 1997 CanLII 832 (ON CA), (1997), 120 CCC (3d) 500 (Ont. C.A.), at para 26
  10. R v Tomlinson, 2014 ONCA 158 (CanLII), at para 96
  11. R v Horan, 2008 ONCA 589 (CanLII), 237 CCC (3d) 514, at para 69
  12. R v Tomlinson, 2014 ONCA 158 (CanLII) at para 99
    Horan at para 67
  13. R v Benji, 2012 BCCA 55 (CanLII) at para 158
    R v Biniaris, 1998 CanLII 14986 (BC CA) at para 9
  14. Walker at 157
  15. R v Biniaris, 1998 CanLII 14986 (BC CA) at 10 citing Cariboo Observer Ltd. v Carson Truck Lines Ltd. and Tyrell (1961), 32 D.L.R. (2d) 36 at 39, 37 W.W.W. 209 (BCCA)
  16. Tomlinson, supra at para 100
    R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, at para 63 and 126-127
    R v Archer, 2005 CanLII 36444 (ON CA), (2005), 202 CCC (3d) 60 (Ont. C.A.), at para 96
    R v AT, 2015 ONCA 65 (CanLII) at paras 29 to 30
    R v Tymchyshyn, 2016 MBCA 73 (CanLII), at para 84
  17. Tymchyshyn, ibid. at para 84
  18. Tymchyshyn, ibid. at para 84
    R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262 at paras 124-36
    R v Kociuk, 2011 MBCA 85 (CanLII) at para 64
  19. R v G.(S.G.), 1997 CanLII 311 (SCC), [1997] 2 SCR 716
  20. R v Boudreau, 2012 ONCA 830 (CanLII), at para 16
  21. Boudreau, supra at para 16
    Mallory, supra
  22. see Mallory, supra at para 340
  23. see Mallory, supra at para 340
  24. R v Leaver, 1998 CanLII 12205 (NB CA), [1998] N.B.J. No. 238 (QL)
    R v Finta (1992), 1992 CanLII 2783 (ON CA), 73 C.C.C. (3d) 65 (Ont. C.A.), aff'd 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701

Use of Multimedia

See also: Demonstrative Evidence

The use of powerpoint slides should be done with caution. The judge may want to give limiting instructions where slides and accompanying images may potentially mislead the jury.[1]

  1. e.g. US v Burns, 298 F.3d 523 (6th Cir. 2002) - judge did not err in giving limiting instructions on powerpoint slides that had pictures of large amounts of crack cocaine
    State v Robinson, 110 Wash App. 1040 (2002) - slides on arson case had depictions of flaming letters