Criminal Law Notebook

Opening and Closing Address

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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.[1]

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.[2]

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."[3]

No Argument or Opinion

The opening is not an opportunity for argument, invectives or opinion.[4]

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.[5] This is evaluated in the entirety of the trial's context, including the existence of any judicial remarks.[6]

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.[7] Such comments invite "invidious comparison" with the role of defence counsel and may undermine their credibility before a jury. [8]

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.[9]

  1. ↑ R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam, at para 338 ("It is well established that the opening address is not the appropriate forum for argument, invective, or opinion. The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case")
    R v Patrick, 2007 CanLII 11724 (ON SC), per Dambrot J, at para 5 (error in detailing the role of crown remedied by jury warning)
  2. ↑ R v Pickton, 2007 BCSC 61 (CanLII), 259 CCC (3d) 100, at para 4 ("By long-established custom, although not specifically prescribed by statute, the Crown is entitled at the outset of a jury trial to make an opening that sets out a brief summary of the facts upon which it is relying to establish its case, a summary of the evidence it expects to be able to lead, and a statement of how that evidence relates to the accused’s alleged guilt.")
  3. ↑ Pickton, ibid., at para 4 ("The purpose of the opening is to provide an overview of the Crown’s case to the jury so that it may better follow the evidence and understand where the matter is leading. Argument forms no part of it.")
  4. ↑ Mallory, supra, at para 338
  5. ↑ Manasseri, supra, at para 105
  6. ↑ Manasseri, supra, at para 105
    R v AT, 2015 ONCA 65 (CanLII), 18 CR (7th) 420, per Benotto JA, at para 31
  7. ↑ Patrick, ibid.
  8. ↑ R v Levert, 2001 CanLII 8606 (ON CA), 159 CCC (3d) 71, per Rosenberg JA, at paras 30, 31
    See also R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16, per Kerwin CJ - Crown improperly suggested that the crown only takes guilty people to trial
  9. ↑ R v Brown, 2009 BCSC 1870 (CanLII), per Dickson J

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)

Note up: 651(1), (2), (3), and (4)

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."[1]

Available considerations on whether the circumstances amount to "special circumstances" should include:[2]

  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
  1. ↑ Pickton, supra, at para 6 ("There is a substantial body of authority which holds that there is a discretion vested in the trial judge to permit counsel for the accused to open to the jury immediately following the Crown, but that discretion is to be exercised only in special or unusual circumstances.")
    R v Browne, 2017 ONSC 4615 (CanLII), per Coroza J, at para 18
  2. ↑ Browne, ibid., at para 18
    R v Dalzell, 2003 CanLII 43624 (ON SC), 180 CCC (3d) 319, per Dambrot J

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)

Note up: 651(1), (2), (3), and (4)

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.[1]

Should all the evidence called by the accused be ruled inadmissible, then the defence are entitled to address the jury last.[2]

  1. ↑ R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, per Cory, Iacobucci and Bastarache JJA
  2. ↑ R v Hawke, 1975 CanLII 672 (ON CA), 22 CCC (2d) 19, per Dubin JA

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." [1]

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.[2]

Ability of Judge to Restrict Submissions

A judge must allow counsel an opportunity to make closing submission in full.[3] 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.[4] A trial judge does not have to be silent during submissions and can voice concerns.[5] He is permitted to express a preliminary opinion on the evidence or the law during submissions.[6]

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.[7]

Erroneous Submissions

Where counsel makes false or erroneous submissions in the address to a jury, the judge must give corrections in the jury instruction.[8]

No Giving Evidence

Counsel cannot give evidence during their closing submissions.[9] This includes giving explanations as to why the accused did not choose to testify.[10]

Recitation of the Law

It is generally not permitted for counsel to read and interpret the law for the jury in their closing arguments.[11]

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. [12]

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.[13] Likewise, a party is not precluded from calling evidence that may contradict other witnesses called by the same party.[14]

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.[15] 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."[16] Only in the "clearest cases" should a party be granted "limited opportunity to reply."[17]

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.[18] However, it it "does not help" the jurors in their task.[19] The counsel should not be permitted to "bludgeon" the jury with a "barrage" of reminders that mistakes can be made.[20] Juries afterall should be credited with common sense and intelligence.[21]

Repeating the point can amount to intimidation to the point of demanding an acquittal despite sufficient evidence of guilt.[22]

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.[23]

  1. ↑ R v Daly, (1992), 57 OAC 70(*no CanLII links) , at p. 76
    R v Boudreau, 2012 ONCA 830 (CanLII), 104 WCB (2d) 862, per curiam, at para 15 onward
    see also R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam, at para 339
  2. ↑ Boudreau, supra, per curiam, at para 20
  3. ↑ R v Al-Fartossy, 2007 ABCA 427 (CanLII), 425 AR 336, per Martin JA, at para 25
  4. ↑ R v Hodson, 2001 ABCA 111 (CanLII), 44 CR (5th) 71, per McClung JA, at paras 33 and 35
  5. ↑ R v WFM (1995), 169 AR 222 (CA)(*no CanLII links) , at para 10
  6. ↑ R v Baccari, 2011 ABCA 205 (CanLII), 527 WAC 301, per curiam, at para 24
    R v Johnson, 2010 ABCA 392 (CanLII), 265 CCC (3d) 443, per curiam, at para 14
  7. ↑ Dewey v Dawson-Moran, 2011 ABCA 45 (CanLII), 502 AR 74, per curiam at 12
    R v Komarnicki, 2012 SKQB 140 (CanLII), 395 Sask R 248}, per Laing J
  8. ↑ see R v Romeo, 1991 CanLII 113 (SCC), 62 CCC (3d) 1, per Lamer CJ, at para 95
    R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, per Cory, Iacobucci and Bastarache JJ, at paras 126 and 127
  9. ↑ R v Smith, 1997 CanLII 832 (ON CA), 120 CCC (3d) 500, per Finlayson JA, at para 26
    R v Browne, 2017 ONSC 5796 (CanLII), per Coroza J, at para 58 ("...If...counsel has given evidence, a trial judge has a duty to correct the...transgression.")
  10. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 96 ("...counsel, whether prosecuting or defending, are not permitted to give evidence in their closing submissions: R v Smith (1997), 120 CCC (3d) 500, at para 26. This prohibition includes providing an explanation, not otherwise in evidence, for the failure of an accused to testify.")
  11. ↑ R v Drover, 2000 NFCA 9 (CanLII), [2000] NJ No 36 (NLCA), per curiam, at para 16 ("... It would be highly inconvenient and calculated to mislead the jury if counsel on each side had the right to read from books the law as laid down in other cases, where the facts and issues were not the same. ...On the Judge, and on him alone, lies the responsibility for directing the jury in point of law, and, if he goes wrong, he can always be corrected. If the jury must take the law from him, what good can come from counsel reading and interpreting the law in any other way? It can have but one result, if it is of any weight - that would be to confuse the minds of the jury, and, therefore, should not be permitted.")
    R v Charest, 1990 CanLII 3425 (QC CA), 57 CCC (3d) 312, per curiam, at p. 330 ("...Applicable principles of law should be left for the judge to explain; when reference to the law is necessary for the purpose of making an argument, the law should be accurately stated.")
  12. ↑ R v Benji, 2012 BCCA 55 (CanLII), 316 BCAC 132, per Rowles JA, at para 158
    R v Biniaris, 1998 CanLII 14986 (BCCA), 124 CCC (3d) 58, per Hall JA, at para 9
  13. ↑ Walker at 157
  14. ↑ R v Biniaris, 1998 CanLII 14986 (BCCA), 124 CCC (3d) 58, per Hall JA at 10 citing Cariboo Observer Ltd. v Carson Truck Lines Ltd. and Tyrell, 1961 CanLII 360 (BCCA), 37 WWW 209 (BCCA), 32 DLR (2d) 36, per Davey JA at 39
  15. ↑ Tomlinson, supra, at para 100
    Rose, supra, at paras 63 and 126 to 127
    R v Archer, 2005 CanLII 36444 (ON CA), 202 CCC (3d) 60, per Doherty JA, at para 96
    R v AT, 2015 ONCA 65 (CanLII), 18 CR (7th) 420, per Benotto JA, at paras 29 to 30
    R v Tymchyshyn, 2016 MBCA 73 (CanLII), 338 CCC (3d) 425, per Cameron JA, at para 84
  16. ↑ Tymchyshyn, ibid., at para 84
  17. ↑ Tymchyshyn, ibid., at para 84
    Rose, supra, at paras 124 to 136
    R v Kociuk, 2011 MBCA 85 (CanLII), 278 CCC (3d) 1, per Chartier JA, at para 64
  18. ↑ R v Horan, 2008 ONCA 589 (CanLII), 237 CCC (3d) 514, per Rosenberg JA, at para 69
  19. ↑ Horan, ibid., at para 69
  20. ↑ R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, per Watt JA, at paras 238 to 239
  21. ↑ R v Trochym, 2007 SCC 6 (CanLII), [2007] 1 SCR 239, per Deschamps J, at para 114
  22. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 99
    Horan, supra, at para 67
  23. ↑ e.g. R v Deol, 2017 ONCA 221 (CanLII), 352 CCC (3d) 343, per Juriansz JA, at paras 42 to 46

Crown Closing Submissions

Closing Submissions of the Crown are a form of advocacy and so may include passionate rhetoric and forceful positions.[1]

The rhetoric and argument must be limited to the facts that are in evidence.[2]

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.[3]

The Crown cannot argue a position that is based on speculation and not supported by the facts.[4]

However, the Crown must: [5]

  • "abstain from inflammatory rhetoric",
  • abstain from "demeaning commentary and sarcasm",
  • not "misstate the law",
  • "not invite the jury to engage in speculation" [6]
  • not "express personal opinions about either the evidence or the veracity of a witness" [7]

Crown counsel should not state their own personal opinion to the jury, misrepresent the evidence and use rhetorical excess that may affect the jury.[8]

  1. ↑ R v Manasseri, 2016 ONCA 703 (CanLII), 344 CCC (3d) 281, per Watt JA, at paras 102 to 105
  2. ↑ Manasseri, ibid., at para 104
  3. ↑ R v G(SG), 1997 CanLII 311 (SCC), [1997] 2 SCR 716, per Cory J
  4. ↑ R v Boudreau, 2012 ONCA 830 (CanLII), 104 WCB (2d) 862, per curiam, at para 16
  5. ↑ Boudreau, supra, at para 16
    Mallory, supra
  6. ↑ see Mallory, supra, at para 340
  7. ↑ see Mallory, supra, at para 340
  8. ↑ R v Leaver, 1998 CanLII 12205 (NB CA), [1998] N.B.J. No 238, per Ryan JA
    R v Finta, 1992 CanLII 2783 (ON CA), 73 CCC (3d) 65, aff'd 1994 CanLII 129 (SCC), [1994] 1 SCR 701}}, per Gonthier, Cory and Major JJ
    Boudreau, supra, per curiam, at para 16 ("...The Crown must not ... express personal opinions about either the evidence or the veracity of a witness...")

Use of Multimedia

See also: Demonstrative Evidence

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.[1]

  1. ↑ e.g. US v Burns, 298 F.3d 523 (6th Cir. 2002) - judge did not err in giving limiting instructions on powerpoint slides that had pictures of large amounts of crack cocaine
    State v Robinson, 110 Wash App. 1040 (2002) - slides on arson case had depictions of flaming letters

Effect of Inappropriate Submissions

Inflammatory remarks during opening submissions may allow for a mistrial, particularly in the context of a jury trial.[1]

Unfairness from an improper jury address may be remedied by:[2]

  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."[3]

  1. ↑ Stewart v Speer, 1953 CanLII 153 (ON CA), [1953] OR 502, per Hogg JA
    Landolfi v Fargione, 2006 CanLII 9692 (ON CA), 2006 CarswellOnt 1855, per Cronk JA
  2. ↑ R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, per Cory, Iacobucci and Bastarache JJ.
  3. ↑ Rose, ibid., at para 136
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