Opening and Closing Address

This page was last substantively updated or reviewed January 2018. (Rev. # 95210)

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Opening Submissions

Crown Opening Submissions

The open address is to be used to introduce the parties, explain the process, and provide a general overview of the evidence that the party is calling.

There is no basis in statute to permit the Crown to make an opening statement, however, it is a "long-established custom" that the Crown can set out a brief summary of the facts they intend to establish and the evidence that will be lead.

Purpose of Crown Opening

The purpose of the Crown opening address is to provide an overview of the case so that the jury "may better follow the evidence and understand where the matter is leading."

No Argument or Opinion

The opening is not an opportunity for argument, invectives or opinion.

Opening Must be "Fair"

The primary issue of concern where the Crown has gone outside of his limitations is whether the accused was deprived of a fair trial. This is evaluated in the entirety of the trial's context, including the existence of any judicial remarks.

Explaining the Role of Crown

Before a jury, the Crown should not go into too much detail about the role and duties of the Crown in its opening. Such comments invite "invidious comparison" with the role of defence counsel and may undermine their credibility before a jury.

A Crown remark 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.

Defence Opening Submissions

The defence is entitled to an opening address under s. 651(2). This takes place after the Crown closes its case.

651
[omitted (1)]

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.

[omitted (3) and (4)]

R.S., c. C-34, s. 578.

– CCC (CanLII), (DOJ)

---

There is discretion on the part of the Judge to permit the defence to do opening submissions immediately after the Crown's opening and before the calling of evidence, but it should be limited to "special or unusual circumstances."

Available considerations on whether the circumstances amount to "special circumstances" should include:

1. In a retrial, where there was thought to be relative certainty about what the witnesses would say;
2. In a trial where was expected to be a lengthy one or one with complex factual issues;
3. In a trial where the defence was not expected to be apparent to the jury during the Crown's lengthy evidence;
4. In a trial where there existed competing and significant expert evidence; and
5. In a trial where the Crown had one central witness whose testimony was the focus of the case, and from whom: (i) in cross-examination, the defence hoped to raise a defence of self-defence; or (ii) the defence could bring out significant inconsistencies, admitted perjury and a serious potential for self-interest

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.
[omitted (2)]

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 (CanLII), (DOJ)

---

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

Section 651 does not violate the accused's right to full answer and defence.

Should all the evidence called by the accused be ruled inadmissible, then the defence are entitled to address the jury last.

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."

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.

Ability of Judge to Restrict Submissions

A judge must allow counsel an opportunity to make closing submission in full. 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. A trial judge does not have to be silent during submissions and can voice concerns. He is permitted to express a preliminary opinion on the evidence or the law during submissions.

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.

Erroneous Submissions

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

No Giving Evidence

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

Recitation of the Law

It is generally not permitted for counsel to read and interpret the law for the jury in their closing arguments.

Acceptance of Evidence

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

Correcting Errors

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. Likewise, a party is not precluded from calling evidence that may contradict other witnesses called by the same party.

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. 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." Only in the "clearest cases" should a party be granted "limited opportunity to reply."

Defence Submissions

Referencing the Risk of Wrongful Convictions

A "passing reference" to the risk of wrongful conviction or miscarriages of justice is a legitimate argument in a jury address. However, it it "does not help" the jurors in their task. The counsel should not be permitted to "bludgeon" the jury with a "barrage" of reminders that mistakes can be made. Juries afterall should be credited with common sense and intelligence.

Repeating the point can amount to intimidation to the point of demanding an acquittal despite sufficient evidence of guilt.

Submissions of Defence Counsel in a "cut-throat" Defence Case

In a case where two or more co-accused attempt to redirect blame onto the other, there will generally be an acceptance that an enthusiastic and forceful defence that accuses a co-accused of wrongdoing will be permitted.

Crown Closing Submissions

Closing Submissions of the Crown are a form of advocacy and so may include passionate rhetoric and forceful positions.

The rhetoric and argument must be limited to the facts that are in evidence.

Once the Crown has completed their evidence, it is not allowed to change its theory of the case because of the addition of defence evidence.

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

However, the Crown must:

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

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

Use of Multimedia

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.

Effect of Inappropriate Submissions

Inflammatory remarks during opening submissions may allow for a mistrial, particularly in the context of a jury trial.

Unfairness from an improper jury address may be remedied by:

1. "specific correcting reference to it in the charge to the jury" or
2. "if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, ... the prejudiced party may be granted a limited opportunity to reply."

The second remedy "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" it. Alternatively, it may be "appropriate to grant a reply where the accused is actually misled by the Crown as to the theory intended to be advanced."