Rebuttal and Reply: Difference between revisions

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==General Principles==
==General Principles==
{{seealso|Trial Process}}
{{seealso|Trial Process|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.  
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.  


Line 13: Line 15:


{{reflist|2}}
{{reflist|2}}
==Crown Reply or Rebuttal==
==Crown Reply or Rebuttal==
{{seealso|Re-Direct Examinations}}
{{seealso|Re-Direct Examinations}}
; Rule Against Splitting Crown Case
; 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.<ref>
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.<ref>
{{CanLIIR|Melnichuk|1fr30|1997 CanLII 383 (CanLII)}}{{perSCC|Sopinka J}}
{{CanLIIRP|Melnichuk|1fr30|1997 CanLII 383 (SCC)|[1997] 1 SCR 602}}{{perSCC-H|Sopinka J}}
</ref>
</ref>
; Purpose of Rebuttal
; Purpose of Rebuttal
Line 24: Line 27:


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.<ref>
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.<ref>
{{CanLIIR|KT|fx5wz|2013 ONCA 257 (CanLII)}}{{perONCA|Watt JA}}{{atL|fx5wz|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")</ref>
{{CanLIIRP|KT|fx5wz|2013 ONCA 257 (CanLII)|295 CCC (3d) 283}}{{perONCA-H|Watt JA}}{{atL|fx5wz|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")</ref>


; Anticipation of Relevancy
; 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.<ref>
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.<Ref>
{{CanLIIRP|Perry|hv10x|1977 CanLII 2096|, 36 CCC (2d) 209 (Ont. C.A.)}}{{perONCA|Dubin JA}}</ref>
{{CanLIIRP|Drake|g7c6d|1970 CanLII 577 (SK QB)|1 CCC (2d) 396}}{{perSKQB|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.")
 
{{CanLIIRP|Chaulk|1fspm|1990 CanLII 34 (SCC)|[1990] 3 SCR 1303}} at p. 1364 (SCR)
; When Permitted
The Crown should be permitted to call reply evidence when:<ref>
{{ibid1|KT}}{{atL|fx5wz|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.")</ref>
* 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".
 
{{Reflist|2}}
 
==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:<ref>
''R v Hayward'' (1993) 86 CCC (3d) 193 (ONCA), [http://canlii.ca/t/g9h6t 1993 CanLII 14679] (ON CA){{perONCA|Doherty JA}}{{atsL|g9h6t|17| to 19}}</ref>
# whether the evidence is relevant to a material issue in the case;
# the potential prejudice to the other party, if reopening is permitted; and
# 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.<ref>
{{ibid1|Hayward}}</ref>
 
{{reflist|2}}
===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".<ref>
{{CanLIIRP|Kowall|6hzl|1996 CanLII 411 (ON CA)|, 92 O.A.C. 82|, 108 CCC (3d) 481}}{{TheCourtONCA}}{{atL|6hzl|31}}</ref>
In such cases, the test will be the same for admitting fresh evidence on appeal.<ref>
See {{CanLIIR|Palmer|1mjtn|1979 CanLII 8 (CanLII)}}{{perSCC|McIntyre J}} cited by {{ibid1|Kowall}}{{atL|6hzl|31}}</ref>
 
The test to re-open the defence's case after adjudication requires the applicant to establish:<ref>
{{supra1|Kowall}}{{Atps|493-4}}<Br>
{{CanLIIRP|Arabia|1ztzt|2008 ONCA 565 (CanLII)|, 235 CCC (3d) 354 (Ont. C.A.)}}{{perONCA|Watt JA}}{{atL|1ztzt|46}}<br>
</ref>
# 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;
# the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
# the evidence must be credible in the sense that it is reasonably capable of belief; and
# 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.<ref>
{{supra1|Kowall}}<br>
</ref>
</ref>


{{reflist|2}}
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.<ref>
 
{{CanLIIRP|Perry|hv10x|1977 CanLII 2096|36 CCC (2d) 209}}{{perONCA|Dubin JA}}</ref>
===Re-opening the Crown's Case===
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."<Ref>
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.<ref>
{{CanLIIRx|Mellor|j952j|2020 ONSC 4820 (CanLII)}}{{perONSC|Dennison J}}{{AtL|j952j|53}}<Br>
{{CanLIIR|Robillard|1z75j|1978 CanLII 200 (CanLII)}}{{perSCC|Pigeon J}}<br>  
{{CanLIIRP|P(MB)|1frvf|1994 CanLII 125 (SCC)|, [1994] 1 SCR 555}}{{perSCC|Lamer CJ}}<br>
{{CanLIIRP|G(SG)|1fr1d|1997 CanLII 311 (SCC)|, [1997] 2 SCR 716}}{{perSCC|Cory J}} (plurality)<br>
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</ref>
 
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."
<ref>
{{ibid1|Salhany}}<br>
{{supra1|P(MB)}} 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.”)
</ref>
</ref>
 
It is not necessary that the Crown lead "any evidence" that it has to counter a possible defence.<Ref>
A failure to request that the voir dire evidence be admitted into the trial by omission can be reason to reopen the crown case.<ref>
{{CanLIIRP|W(A)|g1fwn|1991 CanLII 7125 (ON CA)|3 OR (3d) 171}}{{perONCA-H|Doherty JA}} at para 32<Br>
{{CanLIIR|Wu|2dfbc|2010 ABCA 337 (CanLII)}}{{TheCourtABCA}}
{{CanLIIRP|Campbell|g1bwt|1977 CanLII 1191 (ON CA)|38 CCC (2d) 6, 17 OR (2d) 673 (CA)}}{{perONCA-H|Martin JA}}<Br>
{{CanLIIRP|Stevenson|1npnb|1990 CanLII 2594 (ON CA)|58 CCC (3d) 464, [1990] OJ No 1657 (CA)}}{{perONCA-H|Morden JA}}<br>
</ref>
</ref>
Put differently, the Crown does not have to engage in guessing what the defence may be and call evidence to respond to guess-work.


{{reflist|2}}
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.<Ref>
 
e.g. {{supra1|Mellor}}{{atL|j952j|53}}
===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.<ref>
{{CanLIIR|Arabia|1ztzt|2008 ONCA 565 (CanLII)}}{{perONCA|Watt JA}}{{atL|1ztzt|52}}<br>
{{CanLIIR|Hailemolokot|gds3j|2014 CanLII 56993 (MB CA)}}{{perBCCA|Burnett JA}}{{atsL|gds3j|8|}}, {{atsL-np|gds3j|10|}}<Br>
{{CanLIIR|Chan|hx9pt|2019 ONSC 783 (CanLII)}}{{perONSC|Boswell J}}{{atL|hx9pt|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.")
</ref>
</ref>


The exercise of discretion should "only to be exercised in exceptional circumstances, where its exercise is clearly called for".<ref>
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.<ref>
{{supra1|Chan}}{{atsL|hx9pt|27| to 28}} - referring to it as the "Lessard" test<br>
{{supra1|Mellor}}{{atL|j952j|65}}<br>
''R v Lessard'' (1976), [http://canlii.ca/t/htwlv 1976 CanLII 1417] (ON CA), 30 CCC (2d) 70{{perONCA-H|Martin JA}}{{atp|73}}<Br>
{{CanLIIRP|Sanderson|h4639|2017 ONCA 470 (CanLII)|349 CCC (3d) 129}}{{perONCA|Pepall JA}}{{atL|h4639|44}}<br>
{{CanLIIR|Griffen|g012s|2013 ONCA 510 (CanLII)}}{{perONCA|Rosenberg JA}}{{atL|g012s|12}}<br>
''R v Kowall'' (1996), [http://canlii.ca/t/6hzl 1996 CanLII 411] (ON CA), 108 CCC (3d) 481{{TheCourtONCA}}{{atL|6hzl|31}}<br>
{{CanLIIRP|Drysdale|fn6sg|2011 ONSC 5451 (CanLII)|d}}{D{perONSC|Trotter J}}{{atL|fn6sg|1}}<br>
</ref>
</ref>


Where the application is based on "fresh evidence" the applicant msut satisfy the Palmer test for fresh evidence.<ref>
; When Permitted
{{supra1|Chan}}{{atL|hx9pt|28}}<br>
The Crown should be permitted to call reply evidence when:<ref>
See also [[Appellate Evidence#Fresh Evidence]]<Br>
{{ibid1|KT}}{{atL|fx5wz|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.")</ref>
</ref>
* 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".


; Appellate Review
; Surrebuttal
On a judge-alone trial, the trial judge should consider the Palmer factors for [[Appellate Evidence|Fresh Evidence]].<ref>
The trial judge may permit surrebuttal evidence to sure the accused has a fair trial.<Ref>
{{ibid1|Hailemolokot}}{{atL|gds3j|9}}<br>
{{supra1|Mellor}}{{AtL|j952j|67}}
</ref>
The judge should not reopen the case where it is seen as "an attempt to reverse a tactical decision made at trial".<ref>
{{ibid1|Hailemolokot}}{{atL|gds3j|9}}<br>
</ref>
</ref>


The decision to reopen a trial should not be overturned unless there was a "misdirection" or an "unreasonable exercise of discretion".<ref>
{{Reflist|2}}
{{ibid1|Hailemolokot}}{{atL|gds3j|10}}<br>
</ref>


{{reflist|2}}
==See Also==
* [[Reopening the Case]]

Latest revision as of 07:06, 23 July 2024

This page was last substantively updated or reviewed December 2020. (Rev. # 95732)

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]

  1. ↑ see Re-Direct Examinations

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), [1997] 1 SCR 602, 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), 295 CCC (3d) 283, 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.") R v Chaulk, 1990 CanLII 34 (SCC), [1990] 3 SCR 1303 at p. 1364 (SCR)
  5. ↑ R v Perry, 1977 CanLII 2096, 36 CCC (2d) 209, 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, per Doherty JA at para 32
    R v Campbell, 1977 CanLII 1191 (ON CA), 38 CCC (2d) 6, 17 OR (2d) 673 (CA), per Martin JA
    R v Stevenson, 1990 CanLII 2594 (ON CA), 58 CCC (3d) 464, [1990] OJ No 1657 (CA), 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

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