Supreme Court
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Decision information:
Abstract: Transcript of ruling (re Defence request to make Opening Statement immediately following that of Crown Counsel)
Decision Content
R. v. Bulatci, 2009 NWTSC 62 S-1-CR-2008-000056
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
EMRAH BULATCI
Transcript of Ruling (re Defence request to make Opening
Statement immediately following that of Crown Counsel)
delivered by The Honourable Justice J.Z. Vertes, in
Yellowknife, in the Northwest Territories, on the 9th
day of September, 2009.
APPEARANCES:
Mr. J. Cliffe: Counsel on behalf of the Crown
Mr. J. MacFarlane:
Ms. L. Stevens: Counsel on behalf of the Accused
Mr. D. Rideout:
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Charge under s. 235(1) C.C.
Ban on Publication pursuant to Section 648
of the Criminal Code
1 THE COURT: The defence has made a request
2 for leave of the Court to make an opening
3 statement immediately following that of Crown
4 counsel.
5 Section 651(2) of the Criminal Code states
6 simply that counsel for the accused is "entitled
7 ... to open the case for the defence" and after
8 opening "to examine such witnesses" as he or she
9 thinks fit. That subsection does not specify
10 that the examination of witnesses must take place
11 immediately after the opening nor indeed that any
12 witnesses must be examined. Traditionally,
13 however, defence counsel open their case
14 following the case for the Crown and only in
15 circumstances where defence evidence is called.
16 Notwithstanding the traditional practice,
17 many cases (such as the ones referred to me by
18 both Crown and defence counsel) have held that
19 defence counsel can make an opening address
20 immediately after the Crown's opening. It is a
21 matter of discretion for the trial judge.
22 Some cases have said that the defence should
23 be allowed to open immediately after the Crown
24 only in special or unusual circumstances. Some
25 such circumstances have included a lengthy trial
26 or one with complex factual issues, or the case
27 of a retrial where there is some certainty about
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1 what witnesses will say, or where there is the
2 existence of a defence that is not expected to be
3 apparent to the jury during the Crown's case.
4 Some other cases have held that there should be
5 an outline of the defence case before allowing an
6 opening address after the Crown's opening. Many
7 cases have also held that there should be an
8 undertaking by the defence to call evidence.
9 In this case, defence counsel points to the
10 fact that the trial is expected to be lengthy and
11 that, coupled with the extensive pre-trial
12 publicity surrounding this case, raises the risk
13 that jurors would form opinions during the course
14 of the Crown's case. Allowing the defence to
15 give an early opening address would, in counsel's
16 submission, enhance the fairness of the trial by
17 allowing the jurors to be informed as to the
18 defence position early on so that they can keep
19 all of the evidence in a proper focus.
20 This trial is expected to be lengthy. It is
21 a charge of first degree murder. Counsel
22 estimate six to seven weeks for the trial. The
23 Crown has over 100 potential witnesses (although
24 many of them will likely not be needed in the end
25 as a result of anticipated admissions).
26 Crown counsel does not necessarily oppose
27 the request but expresses reservations over the
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1 fact that the nature of the defence has not been
2 revealed. Indeed, defence counsel is not in a
3 position to either outline the defence or give an
4 undertaking to call evidence. No firm decision
5 on that has been made as yet.
6 There are, as noted by both counsel, obvious
7 dangers in allowing the defence to open without a
8 commitment to call evidence. The opening may
9 refer to evidence to be called and then the
10 decision is later made to not call evidence. But
11 in such a situation, such a result would not be
12 looked upon tolerably by the jury, I suspect.
13 The fundamental purpose of an opening
14 address is to assist the jurors by acquainting
15 them with the theory of the party making the
16 opening and with the evidence proposed to be
17 called. But, even if the defence does not intend
18 to call evidence, or is not yet prepared to
19 indicate its intentions about that, it still may
20 be permitted to inform the jury about its
21 position generally and to tell the jury what
22 evidence it expects to elicit in
23 cross-examination of the Crown witnesses. And,
24 in any event, the right to make an opening
25 address does not entitle counsel, whether for the
26 defence or the Crown, to make any comment he or
27 she may wish. A trial judge has the authority to
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1 place limits on what may be said depending on the
2 circumstances.
3 Having regard to the expected length of this
4 trial, I have concluded that it would be in the
5 interests of justice to allow the defence to make
6 its opening address to the jury immediately after
7 the opening by the Crown. I will not demand that
8 an undertaking to call evidence be given (even
9 though I may say that ordinarily such an
10 undertaking is the preferable course to take).
11 However, as I said, I will not demand such an
12 undertaking in the circumstances of this case.
13 In this case, I think it will be helpful to the
14 jury for them to have the comments of defence
15 counsel from the outset of the trial. It would
16 also promote fairness of the trial by making the
17 jurors aware of the need to maintain an unbiased
18 perspective as the evidence unfolds.
19 But, since the defence cannot indicate
20 whether it will call evidence, I will impose
21 certain limitations. The defence will be
22 permitted only one opening whether or not it does
23 decide to call evidence. In the absence of an
24 announced commitment to call evidence, the
25 opening will be restricted to comments regarding
26 the trial process, by that I mean such things as
27 the burden of proof and presumption of innocence;
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1 the position of the defence; and, evidence that
2 the defence anticipates eliciting on
3 cross-examination of Crown witnesses.
4 To that extent, the request is granted.
5 ..............................
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7 Certified to be a true and
accurate transcript pursuant
8 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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11 Annette Wright, RPR, CSR(A)
Court Reporter
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