Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the ruling on defence motion to make opening address after Crown opening address
Decision Content
R. v. Larsen, 2013 NWTSC 31 S-1-CR-2011-000089
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- V -
GLENN KEVIN LARSEN
_________________________________________________________
Transcript of the ruling on defence motion to make opening
address after Crown opening address by The Honourable
Justice L. A. Charbonneau, sitting in Yellowknife, in
the Northwest Territories, on the 12th day of June, 2013.
_________________________________________________________
APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Ms. J. Wynne-Edwards: Counsel for the Crown
Ms. C. Wawzonek: Counsel for the Defence
Ms. A. Vogt: Counsel for the Defence
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Charge under s. 236(b) Criminal Code of Canada
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1 THE COURT: Earlier in this trial
2 I heard a motion presented by defence, seeking
3 permission to make an opening statement to
4 the jury immediately after the Crown's opening
5 statement. The Crown opposed that motion.
6 I told counsel the next day that I was granting
7 the motion and would put my reasons on the
8 record later during this trial. These are
9 those reasons.
10 I have considered the cases submitted by
11 defence, R. v. Allen 2006 ABQB 848 (CanLII)
12 and R. v. Morgan 1197 CanLII 12444 (ON SC),
13 as well as a few others, R. v. Bekar 2003
14 BCCA 325, R. v. Ekman 2006 BCCA 206, R. v. A.D.
15 [2003] O.J. No. 4900, R. v. Proulx 2012 QueCA
16 1302, R. v. Paetsch [1993] A.J. No. 366 (Alta
17 C.A.), and R. v. White 2006 ABQB 883.
18 The parties were not in any disagreement as
19 to the principles of law that apply in a motion
20 like this. The general and well-established
21 rule, as was noted in R. v. Paetsch of the
22 Alberta Court of Appeal, is that the defence
23 makes its opening statement after the Crown
24 has closed its case, if defence is presenting
25 at the trial.
26 The Court said that while a judge may have
27 the power to direct that defence be permitted to
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1 make an opening statement earlier in the process,
2 this power should only be exercised in special
3 circumstances. That statement was quoted with
4 approval in R. v. A.D., a case from the Ontario
5 Court of Justice. It was also approved by the
6 Quebec Court of Appeal in R. v. Proulx.
7 It is clear that the discretion exists and
8 should not be exercised routinely or as a matter
9 of course. The reasons for this general rule are
10 the various potential pitfalls of allowing the
11 defence to make its opening statement before it
12 decides whether to call evidence. Those pitfalls
13 were referred to in R. v. A.D. at paragraph 17.
14 They include the fact that the defence
15 does not have to decide whether it will call
16 evidence until after the Crown closes its case.
17 Since the purpose of an opening statement is
18 to outline evidence that the party proposes
19 to adduce, there is a risk that the defence
20 counsel's instructions could change at the
21 close of the Crown's case and that no evidence
22 will be presented. The Court could never
23 force defence to present evidence so the
24 remedy, in that situation, would be a mistrial.
25 The second reason is that there is a
26 high risk, if the evidence to be referred to
27 in the defence's opening statement is expected
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1 to come from the cross-examination of Crown
2 witnesses, that it may not in fact materialize
3 in the way the defence hopes or expects.
4 The third risk is that defence may slip
5 into argument during the opening.
6 Examples where the discretion has been
7 exercised to let the defence make its opening
8 address early have included situations where
9 the trial is expected to be very lengthy; where
10 the nature of the defence is not likely to be
11 apparent from the cross-examination of Crown
12 witnesses; where the trial is expected to
13 raise complex factual issues; or where there
14 is expected to be significant and competing
15 expert evidence.
16 Here the defence argued that it did not
17 expect that the result of cross-examination
18 of Crown witnesses would clearly raise the
19 defence of self-defence. Counsel expected to
20 put questions related to self-defence to some
21 of the Crown witnesses, but that the answers
22 would not be helpful to Defence. The Crown
23 argued that the nature of the defence would
24 nonetheless be obvious from the wording of
25 those questions, irrespective of the answers.
26 There is some merit to that argument. It is
27 no different than any case where the defence
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1 puts its theory of the case to the main Crown
2 witnesses, thereby revealing, or at least
3 strongly hinting at, what the defence position
4 will be.
5 The Crown also argued that although this
6 case was scheduled for two weeks, the nature
7 of the defence would appear early on in the
8 Crown's case through cross-examination of
9 Crown witnesses, and the concern about lengthy
10 proceedings before the defence got to make its
11 opening did not arise, nor did the ones about
12 complex factual issues or competing experts.
13 In short, the Crown argued that there was
14 nothing exceptional about this case that
15 would justify a departure from the rule.
16 I did find some merit to these arguments,
17 and to be frank thought this was a very
18 borderline case in which to allow an early
19 defence opening. On final analysis, however,
20 I decided that there were good reasons to depart
21 from the standard practice, essentially because
22 I was satisfied that none of the potential
23 pitfalls identified in the caselaw were likely
24 to arise. This was especially so given the
25 undertakings made by defence, which in my view,
26 alleviated these pitfalls for the most part.
27 The risk of counsel slipping into argument
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1 always exists. As I mentioned during the
2 submissions, I am not convinced the risk is
3 made higher if defence counsel makes its opening
4 earlier than usual in the trial. Any counsel who
5 do so do so at their peril, as I made that clear
6 when I made my ruling, because then they run the
7 risk of having the trial judge correct them in
8 front of the jury. I would add that as it turned
9 out, and as I expected, defence counsel's opening
10 was entirely proper and well within the bounds of
11 what can be included in an opening address.
12 Defence undertook to call evidence,
13 and although there remained the theoretical
14 possibility that those instructions could
15 change, I did not see it as a likely possibility
16 given the nature of the defence in this case.
17 The risk of facts referred to in the
18 opening address not materializing are not as
19 high when the defence case is based primarily
20 on the evidence of defence witnesses, as was
21 going to be the case here, as opposed to
22 things that defence hopes to elicit from the
23 cross-examination of Crown witnesses. When
24 that is the case, defence is in a position
25 no different than Crown when it makes its opening
26 address, in good faith, on the basis of evidence
27 it expects to adduce, but without any guarantees
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1 that this will happen.
2 Finally, the potential imbalance resulting
3 from the defence's statutory right to make an
4 opening statement after the Crown closes its
5 case did not arise here because the defence
6 waived that right on the record. That waiver
7 meant each side would get to make an opening
8 statement to the jury.
9 In the end, I concluded that it was
10 best to err on the side of allowing defence
11 to make their opening statement early on so
12 the jury would, before hearing any evidence,
13 be alerted to the positions to be advanced by
14 both parties. In the circumstances of this
15 case, where several witnesses were expected to
16 testify, each painting a relatively small portion
17 of a large picture, I was of the view that it was
18 more fair to Mr. Larsen and more fair to the jury
19 for them to have a good understanding of the key
20 issues that the jury would ultimately be called
21 upon to decide.
22 Those were the reasons why, even recognizing
23 that this was not going to be a particularly
24 long trial, and this was not the clearest of
25 situations to permit an early opening, I decided
26 to exercise my discretion to grant the
27 application.
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1 I thank counsel who argued the motion for
2 their submissions, they were very helpful.
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5 Certified to be a true and
accurate transcript, pursuant
6 to Rules 723 and 724 of the
Supreme Court Rules.
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9 Joel Bowker
Court Reporter
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