Rebuttal, Reply and Re-Opening a Case

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General Principles

See also: Trial Process

Where a party closes its case, the party retains a limited right to call more evidence. Reply (or Rebuttal) evidence mostly applies to the Crown authority to call specific evidence anytime after the closing of its case. Where the right to call reply evidence is granted, it is limited to top-specific matters that are permitted by the court.

By contrast, "re-opening" a case is a limited right that permits either counsel after closing their case to re-open it for the broad calling of additional direct evidence on a particular area that was not called in the case-in-chief but is of sufficient importance as to be called nonetheless. Where reply relates to responding to particular aspects of the opposing side's evidence, re-opening relates to omissions for which it is in the interests of justice to correct.

Note that rebuttal, reply, and re-opening is distinct from the authority to permit redirect of a particular witness. This situation is governed by a different test .[1]

Crown Reply or Rebuttal

See also: Re-Direct Examinations
Rule Against Splitting Crown Case

On closing of the Crown's case, the Crown is expected to have presented all relevant evidence available. The judge should not allow Crown to "split" it's case and present any part of its case after the defence.[1]

Purpose of Rebuttal

The evidence is limited only to matters that were raised in the defence evidence.[2]

The Crown should not be permitted to simply present sufficient evidence to avoid a directed verdict for and then be permitted to present the entirety of the remainder of the case with the benefit of defence evidence.[3]

Anticipation of Relevancy

If the Crown evidence could have been reasonably anticipated as being relevant during the Crown's case then it should have been called then and should not be permitted to be called in rebuttal.[4]

When Permitted

The Crown should be permitted to call reply evidence when:[5]

  • The defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or
  • "some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case".
  1. R v Melnichuk, 1997 CanLII 383 (SCC), [1997] 1 SCR 602, per Sopinka J
  2. R v Kuyan (1988) 43 CCC (3d) 339, 1988 CanLII 7114 (ON CA), per Griffiths JA
  3. R v KT, 2013 ONCA 257 (CanLII), per Watt JA, at para 42 ("The rule governing the order of proof in the context of a criminal trial prevents unfair surprise, prejudice, and confusion that could result if the Crown were allowed to split its case. Were it not for this rule, the Crown could put in part of its evidence in its case-in-chief, enough to survive a motion for a directed verdict, allow the defence to play through with its case, then add further evidence to bolster the case presented in-chief")
  4. R v Perry (1977), 36 CCC (2d) 209 (Ont. C.A.), 1977 CanLII 2096 (ON CA), per Dubin JA
  5. KT, ibid., at para 43 ("But the rule about the order of proof erects no absolute bar to the introduction of further evidence by the Crown after the defence has closed. The Crown may be permitted to call evidence in reply after completion of the defence case where ...[1] the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or...[2] some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case.")

Re-Opening the Case

Once a party has closed their case, it is presumed they have finished presenting their evidence. It is the judge's discretion to allow a party, usually the Crown, to re-open their case.

The factors to consider in exercising discretion to re-open a case prior to verdict are:[1]

  1. whether the evidence is relevant to a material issue in the case;
  2. the potential prejudice to the other party, if reopening is permitted; and
  3. the effect of permitting reopening on the orderly and expeditious conduct of the trial.

The main consideration is the potential prejudice to the opposing side by re-opening the case.[2]

  1. R v Hayward (1993) 86 CCC (3d) 193 (ONCA), 1993 CanLII 14679 (ON CA), per Doherty JA, at paras 17 to 19
  2. Hayward, ibid.

Re-opening the Defence's Case

The test to re-open the defence's case is more stringent post-conviction in order "to protect the integrity of the process, including the enhanced interest in finality".[1] In such cases, the test will be the same for admitting fresh evidence on appeal.[2]

The test to re-open the defence's case after adjudication requires the applicant to establish:[3]

  1. the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This general principle will not be applied as strictly in criminal trials as in civil trials;
  2. the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
  3. the evidence must be credible in the sense that it is reasonably capable of belief; and
  4. it must be such that if believed it could reasonably be expected, when taken with the other evidence adduced at trial, to have affected the result.

The judge should consider whether the application is an attempt to reverse a tactical decision at trial.[4]

  1. R v Kowall, 1996 CanLII 411 (ON CA), (1996), 92 O.A.C. 82, 108 CCC (3d) 481, per curiam, at para 31
  2. See R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, per McIntyre J cited by Kowall, ibid., at para 31
  3. Kowall, supra, at pp. 493-4
    R v Arabia, 2008 ONCA 565 (CanLII), 235 CCC (3d) 354 (Ont. C.A.), per Watt JA, at para 46
  4. Kowall, supra

Re-opening the Crown's Case

The judge may consider an application by the Crown to reopen their case. The standard will depend on what stage in the trial the application is made.[1]

The judge has the discretion to reopen the case "to correct some oversight or to prove a matter which it had failed to do inadvertently, provided that there was no prejudice to the accused." However, "[o]nce the defence had begun to present its case, the judge’s discretion [is] narrowly restricted" and may only be reopened "to prove a matter, ex improviso, which no human ingenuity could have foreseen." [2]

A failure to request that the voir dire evidence be admitted into the trial by omission can be reason to reopen the crown case.[3]

  1. R v Robillard, 1978 CanLII 200 (SCC), [1978] 2 SCR 728, per Pigeon J
    R v P(MB), 1994 CanLII 125 (SCC), [1994] 1 SCR 555, per Lamer CJ
    R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, per Cory J (plurality)
    See also R. E. Salhany, Q.C., Canadian Criminal Procedure, 6th ed., looseleaf (Aurora: Thomson Reuters Canada Limited, 2010) vol. 1 at paras 6.3975, 6.3980, 6.3990
  2. Salhany, ibid.
    P(MB), supra at 568–570 (SCR), (the Crown will “be permitted to correct some oversight or inadvertent omission … in the presentation of its case, provided that justice requires it and there will be no prejudice to the defence.”)
  3. R v Wu, 2010 ABCA 337 (CanLII), per curiam

Re-Opening Post Verdict

The trial judge retains the discretion to reopen a trial after giving a trial verdict. The court is guided by the interest of "protecting the integrity of the process" and should only be done in the clearest of cases.[1]

The exercise of discretion should "only to be exercised in exceptional circumstances, where its exercise is clearly called for".[2]

Where the application is based on "fresh evidence" the applicant msut satisfy the Palmer test for fresh evidence.[3]

Appellate Review

On a judge-alone trial, the trial judge should consider the Palmer factors for Fresh Evidence.[4] The judge should not reopen the case where it is seen as "an attempt to reverse a tactical decision made at trial".[5]

The decision to reopen a trial should not be overturned unless there was a "misdirection" or an "unreasonable exercise of discretion".[6]

  1. R v Arabia, 2008 ONCA 565 (CanLII), per Watt JA, at para 52
    R v Hailemolokot, 2014 CanLII 56993 (MB CA), per Burnett JA, at paras 8, 10
    R v Chan, 2019 ONSC 783 (CanLII), per Boswell J, at para 27 ("Where an application is brought to re-open a case following judgment, but before sentencing, the trial judge has a discretion to re-open the case and to reconsider the judgment.")
  2. Chan, supra, at paras 27 to 28 - referring to it as the "Lessard" test
    R v Lessard (1976), 1976 CanLII 1417 (ON CA), 30 CCC (2d) 70, per Martin JA, at p. 73
    R v Griffen, 2013 ONCA 510 (CanLII), per Rosenberg JA, at para 12
    R v Kowall (1996), 1996 CanLII 411 (ON CA), 108 CCC (3d) 481, per curiam, at para 31
    R v Drysdale, 2011 ONSC 5451 (CanLII)d{D{perONSC|Trotter J}}, at para 1
  3. Chan, supra, at para 28
    See also Appellate Evidence#Fresh Evidence
  4. Hailemolokot, ibid., at para 9
  5. Hailemolokot, ibid., at para 9
  6. Hailemolokot, ibid., at para 10