Rebuttal and Reply

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General Principles

See also: Trial Process and Reopening the Case

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

Evidence that is "clearly relevant to the issues and within the possession of the Crown" cannot properly be called in rebuttal. The Crown cannot "lie in wait" to trap the accused.[4]

Traditionally, 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.[5] That being said, it is also said that it is not necessary for the Crown to "lead all possibl[y] relevant evidence". It would otherwise "prolong and potentially confuse the trier of fact" as the evidence "may or may not be relevant".[6] It is not necessary that the Crown lead "any evidence" that it has to counter a possible defence.[7] Put differently, the Crown does not have to engage in guessing what the defence may be and call evidence to respond to guess-work.

As such, where Crown remains unaware of the testimony that will be called in defence evidence, their discovery of new information may permit them to call reply evidence.[8]

The analysis will be different where it is a jury trial and the splitting of the case may overly magnify the importance of the new evidence.[9]

When Permitted

The Crown should be permitted to call reply evidence when:[10]

  • 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".
Surrebuttal

The trial judge may permit surrebuttal evidence to sure the accused has a fair trial.[11]

  1. R v Melnichuk, 1997 CanLII 383 (SCC), per Sopinka J
  2. R v Kuyan, 1988 CanLII 7114 (ON CA), (1988) 43 CCC (3d) 339, 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 Drake, 1970 CanLII 577 (SK QB), 1 CCC (2d) 396, per MacPherson JA ("There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence of the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself.") Template:CanLIIRPChaulk at p. 1364 (SCR)
  5. R v Perry, 1977 CanLII 2096, 36 CCC (2d) 209 (Ont. C.A.), per Dubin JA
  6. R v Mellor, 2020 ONSC 4820 (CanLII), per Dennison J, at para 53
  7. R v W(A), 1991 CanLII 7125 (ON CA), 3 OR (3d) 171 (CA), per Doherty JA at para 32
    R v Campbell, 1977 CanLII 1191 (ON CA), 38 CCC (2d) 6, 17 O.R. (2d) 673 (CA), per Martin JA
    R v Stevenson, 1990 CanLII 2594 (ON CA), 58 CCC (3d) 464, [1990] O.J. No. 1657 (C.A.), per Morden JA
  8. e.g. Mellor, supra, at para 53
  9. Mellor, supra, at para 65
    R v Sanderson, 2017 ONCA 470 (CanLII), 349 CCC (3d) 129, per Pepall JA, at para 44
  10. 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.")
  11. Mellor, supra, at para 67

See Also