Rebuttal and Reply
General Principles
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
- 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".
- ↑ R v Melnichuk, 1997 CanLII 383 (SCC), per Sopinka J
- ↑ R v Kuyan, 1988 CanLII 7114 (ON CA), (1988) 43 CCC (3d) 339, per Griffiths JA
- ↑ 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")
- ↑ R v Perry, 1977 CanLII 2096, , 36 CCC (2d) 209 (Ont. C.A.), per Dubin JA
- ↑ 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.")