Supreme Court Judgments

Decision Information

Decision Content

R. v. G. (S.G.), [1997] 2 S.C.R. 716

 

S.G.G.                                                                                                 Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. G. (S.G.)

 

File No.:  24939.

 

1997:  March 17; 1997:  July 10.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for british columbia

 

Criminal law ‑‑ Trial ‑‑ Reopening of Crown’s case ‑‑ Trial judge allowing Crown to call new witness after defence had closed its case in murder trial ‑‑ Whether accused prejudiced by reopening of Crown’s case ‑‑ Whether new trial should be directed.

 

Criminal law ‑‑ Evidence ‑‑ Admissibility of character evidence ‑‑ Trial judge allowing Crown to cross‑examine accused charged with murder as to presence of stolen goods in her house and her sexual relationship with one of  boys who carried out killing ‑‑ Whether evidence of bad character properly admissible.


A young adolescent boy was brutally beaten and then murdered in the accused’s house.  It was not disputed that the killing was carried out by three other adolescent boys.  The Crown’s theory was that the accused, the mother of one of them, had incited the boys to assault and kill the victim because she thought he had “ratted” to the police about either her drug activities or the illegal activities of the boys.  The only testimony directly implicating the accused in the killing was that of R, one of the boys involved, and there were serious problems with his testimony.  The trial judge allowed the Crown to lead evidence of the presence of stolen property in the house on the basis that it was relevant to the Crown’s theory of the accused’s motives for murdering the victim.  He also ruled that the Crown should be permitted to cross‑examine the accused on her sexual relationship with M, one of the boys.  The only defence witness was the accused.  At the end of the defence’s case, a further witness, G, came forward.  Although she had previously given several statements to the police, she had not been called as part of the Crown’s case.  Her prior statements simply indicated that she had been in the basement of the house at the relevant times, and that she had heard loud music and people talking.  This story had changed when she eventually came forward just before the addresses to the jury were to commence.  The trial judge granted the Crown’s application to reopen its case, and gave the defence permission to recall other Crown witnesses for cross‑examination, as well as to reopen the case for the defence.  The accused was convicted of second degree murder.  The Court of Appeal upheld the conviction.

 

Held (L’Heureux‑Dubé and McLachlin JJ. dissenting):  The appeal should be allowed and a new trial directed.

 


(1) Reopening of Crown’s Case

 

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:  The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference.  That discretion must be exercised judicially, however, and in the interests of justice.  The crucial question to be resolved is whether the accused will be prejudiced in his or her defence.  The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence.  In the third stage of the trial, where the defence has already begun to answer the Crown’s case, the discretion is extremely narrow, and is far less likely to be exercised in favour of the Crown.  Reopening at this stage should only be permitted in those very exceptional cases that are closely analogous to the two examples given in P. (M.B.):  where the conduct of the defence directly or indirectly contributed to the Crown’s failure to lead the particular evidence before the close of its case, and where the Crown made an omission or mistake on a non‑controversial issue that was purely formal or technical, and had nothing to do with the substance of the case.  Beyond these examples, it will be extremely difficult for the Crown to succeed in an application to reopen the case once the accused has begun to answer the Crown’s case.

 


One of the primary concerns that arises from permitting the Crown to reopen during the third phase of the trial is that the right of accused persons not to be conscripted against themselves will be compromised.  The Crown must not be allowed to change the case it has presented once the accused has begun to answer the Crown’s case.  Furthermore, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”.  The fact that the Crown is not at fault in failing to adduce the evidence as part of its case makes no difference to the right of the accused to know the case that must be met before responding.  At the third stage of the trial, the opportunity to recall Crown witnesses and to reopen the case for the defence can never completely cure the resulting harm to the defence.

 

Here, it is apparent that the splitting of the Crown’s case prejudiced the accused in a number of respects.  G’s testimony corroborated R’s evidence on a number of issues, thereby filling an important gap in the Crown’s case.  In particular, it was the only other evidence that tended to suggest that the accused might have been present in the house while the victim was still alive.  Furthermore, the mere fact that the accused felt the need to take the stand again to answer some of these points was inherently prejudicial, since it gave the Crown a second chance to attack her credibility in cross‑examination.  In any event, since G’s evidence did not fall into the narrow or comparable exceptions identified in P. (M.B.), prejudice to her defence should be presumed.  If any onus rested on her to demonstrate prejudice, she discharged that onus when her counsel argued at trial that he would have conducted the defence differently if G’s evidence had been received as part of the Crown’s case.  In these circumstances, it was not in the interests of justice to allow the Crown’s case to be reopened to call G.  The only appropriate course of action would have been for the Crown to move for a stay of the proceedings and seek a new trial.

 


Per L’Heureux‑Dubé and McLachlin JJ. (dissenting):  The decision to receive evidence presented late in the trial through no fault of the Crown is within the trial judge’s discretion.  An appeal court should not interfere with that discretion unless it appears that an injustice has resulted.  Since the issue is essentially a factual inquiry into the impact of the late evidence in a particular case, it is impossible to develop rules based on the stage at which the late evidence is tendered.  While it may be suggested that the later the new evidence appears, the more difficult it may be to gain its admission, this is a predictive statement, not a rule of law.  The accused is obliged to prove prejudice to his or her right to make full answer and defence.  The inquiry before the trial judge is founded in the facts and circumstances of the particular case and there is no presumption or automatic inference of prejudice.  “Prejudice”, for the purposes of this inquiry, is used in the legal, procedural sense.  The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly.

 

In this case the trial judge made no error in exercising his discretion in favour of receiving the late evidence.  The Court of Appeal was correct in concluding that admission of the late evidence did not deprive the accused of a fair trial and did not violate her right to make full answer and defence.  While G’s evidence was significant, it did not change the Crown’s case, nor did it change the defence case.  Any appearance of increased importance that may flow from late evidence can be eliminated by a specific instruction from the trial judge.  Moreover, the accused had sufficient time to prepare for the cross‑examination of G.  The fact that she might have cross‑examined the other witnesses differently does not necessarily mean that she suffered prejudice.  The accused was free to recall the other Crown witnesses to question them about matters arising out of the late evidence, and was also free to call new witnesses, which she did.

 

(2) Character Evidence

 


Per Lamer C.J. and Cory and Iacobucci JJ.:  Evidence of bad character of the accused can be adduced where the evidence is relevant to an issue in the case, where the accused puts his or her character in issue, and where the evidence is adduced incidentally to proper cross‑examination of the accused on his or her credibility.  Here, the evidence was admissible as relevant to significant issues in the case.  Once evidence of bad character is adduced because it is relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused.  Testimony as to bad character will not be the only evidence that is relevant to credibility, but will simply be one factor among many that will lead the trier of fact to form an impression as to the truthfulness of the accused.  Provided an appropriate direction is given, it does not materially increase the risk that the accused will be convicted on the basis of her disposition, rather than for committing the acts that are the subject of the charge.  Here, the evidence of the accused’s sexual relationship with M was relevant to an important issue in the case, namely the ability of the accused to exercise such exceptional control over the boys that she could persuade them to assault and kill another boy.  It was therefore properly admissible, subject to a determination that its probative value outweighed its prejudicial effect.  The trial judge was also correct in finding that the evidence of the presence of stolen property in the house prior to the killing was properly admissible.

 

Per L’Heureux-Dubé and McLachlin JJ. (dissenting):  The reasons of Cory J. on the issue of character evidence were agreed with.  There is no reason to intervene in the trial judge’s discretionary finding on the admissibility of this evidence.

 


Per Sopinka and Major JJ.:  It is well established that an accused who has not put his or her character in issue cannot be cross‑examined with respect to discreditable misconduct which is not charged in the indictment unless the evidence is otherwise relevant to an issue.  The rationale for this exclusionary rule is not that the evidence is logically irrelevant but that its probative value is exceeded by its prejudicial effect.  The policy is that an accused should be tried on the basis of evidence presented relating to the transaction charged and not on the basis of disposition to commit the crime.  This policy applies equally whether the evidence is introduced through Crown witnesses or by cross‑examination of the accused, and applies notwithstanding that the purpose of the cross‑examination is limited to attacking the credibility of the accused.  The policy also applies to prevent the use of such evidence for the purpose of impugning credibility, since it is highly questionable that as a general rule a logical relationship exists between misconduct and veracity.  Section 12  of the Canada Evidence Act , which permits a witness, including an accused, to be cross‑examined on previous convictions, is a legislated exception to the policy.  In view of the strong policy against the use of character evidence to impugn credibility, the policy should not be discarded when evidence of bad character is admitted not because it is shown to be relevant to credibility, but because the evidence is relevant to another issue.  If the evidence is admitted to show the falsity of testimony given by the accused, it will be relevant to credibility generally.  However, if the only effect of the evidence is that it tends to show a disposition to be untruthful, then there is no reason that the policy against the use of such evidence should not apply.  If the evidence is admitted for another purpose, its use should be restricted to that purpose.  Here the previous sexual activity with M was admitted as tending to show why he would be subject to the accused’s direction and control, and the evidence as to stolen property as tending to explain the motive for reprisals against the victim.  The use of these pieces of evidence should have been limited to the purposes for which they were admitted.

 

Cases Cited

 

By Cory J.

 


Applied:  R. v. P. (M.B.), [1994] 1 S.C.R. 555; referred to:  R. v. Thatcher (1986), 24 C.C.C. (3d) 449, aff’d [1987] 1 S.C.R. 652; R. v. Kishen Singh (1941), 76 C.C.C. 248; Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. F.S.M. (1996), 93 O.A.C. 201; R. v. Krause, [1986] 2 S.C.R. 466; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. Biddle, [1995] 1 S.C.R. 761; John v. The Queen, [1985] 2 S.C.R. 476; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193, leave to appeal granted on other grounds (1981), 56 C.C.C. (2d) 576 (S.C.C.); Lucas v. The Queen, [1963] 1 C.C.C. 1; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Davison (1974), 20 C.C.C. (2d) 424; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Hogan (1982), 2 C.C.C. (3d) 557; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Seaboyer, [1991] 2 S.C.R. 577.

 

By Sopinka J.

 

Not followed:  R. v. Hogan (1982), 2 C.C.C. (3d) 557; referred to:  R. v. Rowton (1865), 10 Cox C.C. 25; Morris v. The Queen, [1983] 2 S.C.R. 190; Makin v. Attorney‑General for New South Wales, [1894] A.C. 57; Maxwell v. Director of Public Prosecutions (1934), 24 Cr. App. R. 152; R. v. Davison (1974), 6 O.R. (2d) 103; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. D. (L.E.), [1989] 2 S.C.R. 111; Boykowych v. Boykowych, [1955] S.C.R. 151.

 

By McLachlin J. (dissenting)

 

R. v. Kishen Singh (1941), 76 C.C.C. 248; R. v. Day (1940), 27 Cr. App. R. 168; R. v. McKenna (1956), 40 Cr. App. R. 65; Robillard v. The Queen, [1978] 2 S.C.R. 728; R. v. Aalders, [1993] 2 S.C.R. 482; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Harrer, [1995] 3 S.C.R. 562.

 

Statutes and Regulations Cited

 

Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 12 .


Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), 24(2) .

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 579 , 686(1) (b)(iii).

 

Authors Cited

 

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 3A.  Revised by James H. Chadbourn.  Boston:  Little, Brown & Co., 1970.

 

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 45 B.C.A.C. 161, 72 W.A.C. 161, 90 C.C.C. (3d) 97, and (1995), 62 B.C.A.C. 79, 103 W.A.C. 79, 99 C.C.C. (3d) 575, dismissing the accused’s appeal from her conviction of second degree murder.  Appeal allowed and new trial directed, L’Heureux‑Dubé and McLachlin JJ. dissenting.

 

Ian Donaldson and Tanya Chamberlain, for the appellant.

 

Alexander Budlovsky, for the respondent.

 

The judgment of Lamer C.J. and Cory and Iacobucci JJ. was delivered by

 

1                                   Cory J. -- The primary issue in this appeal is whether the trial judge erred in allowing the Crown to reopen its case to call a new witness after the case for the defence was closed.  It is also necessary to determine whether the trial judge improperly admitted evidence which indicated the bad character of the accused.

 


I.  Background

 

2                                   On July 6, 1990, J.B., a young adolescent boy, was brutally beaten and then murdered.  His naked body was found the following day wrapped in a pink blanket and a sheet.  Several cords and two plastic bags were around his neck, and he was gagged with a bandanna.  It was not disputed that the killing was carried out by three other adolescent boys, J.G., B.R. and H.M.  The Crown’s theory was that J.G.’s mother, the accused S.G.G., had incited the boys to assault and kill J.B. because she thought he had “ratted” to the police about either her drug activities, or the illegal activities of the boys. S.G.G. was convicted of second degree murder after a trial by judge and jury.

 

3                                   Her appeal from the conviction was unanimously dismissed by the Court of Appeal: (1994), 45 B.C.A.C. 161, 72 W.A.C. 161, 90 C.C.C. (3d) 97, and (1995), 62 B.C.A.C. 79, 103 W.A.C. 79, 99 C.C.C. (3d) 575.  In order to resolve this appeal, it is necessary to review the manner in which the evidence was adduced at trial.

 

A.  The Crown’s Case Before Reopening

 

4                                   The Crown called a number of witnesses.  Yet the only testimony directly implicating S.G.G. in the killing was that of B.R., one of the boys who had carried out the assault and killing.  There were serious problems with the testimony of B.R.  He had an extensive criminal record; he admitted to a number of other criminal activities for which he had not been caught; he lied to the police on a number of occasions throughout the investigation of J.B.’s death; he was not completely truthful about his character on the witness stand; and he had been given immunity from prosecution for J.B.’s murder, as well as another property offence, in exchange for his testimony at S.G.G.’s trial.

 


5                                   B.R. testified that S.G.G. had been at home at least from 9:30 p.m. on the evening of the murder, although he conceded that he did not have a watch.  He stated that she instructed the boys to beat J.B. because he had “ratted on a deal”.  She told them to remove J.B.’s clothes, and to punch him.  She participated in some of the punching, and helped the boys remove his clothes.  At one point, the victim was prevented by S.G.G. from leaving the house.  Although the beating was largely carried out by the boys, S.G.G. hit him with a baseball bat, and poked him in the chest with a pipe.

 

6                                   After the boys punched and kicked J.B. for some time, S.G.G. said “We’ve gone too far, we have to kill him”.  B.R. stated that J.G. and H.M. placed a plastic bag over J.B.’s head. J.G. and B.R. suffocated him by pulling electric cords around his neck.  The cords were taken from a clock radio and a lamp.  S.G.G. then gave the boys a pink blanket and a sheet in which to wrap the body, and they carried it out to the backyard.  In the meantime, S.G.G. instructed H.M. to steal a van, sent her son J.G. to his girlfriend’s house, and told B.R. and H.M. to dump the body. B.R. and H.M. did so. S.G.G. paid the boys twenty dollars each, saying that a gang wanted J.B. dead.  On the following day, S.G.G. told B.R. to buy paint, and one room in which the deceased had been assaulted was painted.  B.R. helped S.G.G. clean blood from various locations in the house.  B.R. stated that he threw away his shoes in a sewer, and that H.M. left his shoes at a beach.

 


7                                   The other witnesses called by the Crown tended to confirm details such as the theft of the van, the presence of the body in the van, the fact that the killing had taken place in S.G.G.’s house and that the pink blanket and sheet in which the body was wrapped came from S.G.G.’s house.  One witness gave evidence that S.G.G. had been out with him on that evening and had not come home until after 11:00 pm.  However, forensic evidence indicated that the death could have taken place after this time.  Wounds on the body were consistent with being struck by a baseball bat, and a round object such as pipe.  The police observed that one room in S.G.G.’s house appeared to have been freshly painted.  Witnesses also testified that the deceased had a very short haircut, with the words “Who am I?” shaved on the back of his head. There was no dispute that S.G.G. had given J.B. this haircut some days before he died.  Crown witnesses, including B.R., testified to the presence of stolen property in the house prior to the killing.

 

8                                   Only T.H., another adolescent boy who had frequented S.G.G’s house, confirmed B.R.’s testimony that S.G.G. thought J.B. was a “rat”.  He also testified that S.G.G. had tried to persuade him to beat up J.B.  He could not confirm that she had been present during the killing.  T.H., like B.R., was hardly an ideal witness.  He too had been involved in criminal activities; he had lied to the police during their investigations and at the preliminary inquiry; and he admitted that he did not like the accused.

 

B.  Case for the Defence Before Reopening

 

9                                   The only defence witness was the accused.  She testified as to her involvement in prostitution, her alcoholism, and her drug use.  She confirmed that she knew that J.G., B.R., H.M. and other boys were actively involved in illegal activities such as car theft and burglary.  She also knew that the boys rarely attended school, and indicated that although she did not like their activities, she was not able to prevent them.  She stated that only one baseball bat was in the house, and that it was kept in the basement suite occupied by Tracy Gabriel and her children.

 


10                               S.G.G. stated that on the night of the murder she returned home after 11:00 pm. to find that J.B. had been beaten and was already dead.  She yelled at the boys, asking them what had happened.  She stated that the deceased was fully dressed, and that there was nothing around his neck or on his head.  She admitted that she instructed H.M. to steal a vehicle to take the deceased “home or wherever”, and that she told her son to go to his girlfriend’s house.  B.R. helped her clean up the next day, but S.G.G. denied that she sent him to buy paint, or that a room in her house was repainted after the killing.  She also denied that she thought J.B. was a “rat”.  She testified that she had participated in disposing of the body and covering up the killing in order to protect her son.  She explained that this was also the reason why she lied to the police on a number of occasions during the investigation.

 

11                               In cross‑examination, S.G.G. admitted that she allowed the boys to use drugs and alcohol, and to have sexual relationships in the house.  She also admitted that there had been stolen property in the house for a time prior to the murder.  She stated that on the morning after the killing, she told Tracy Gabriel what the boys had done.  She also admitted that she had been carrying on a sexual relationship with H.M., one of the boys who participated in the killing.

 

C.  Evidence Adduced After Re‑Opening

 

12                               At the end of the defence’s case, Tracy Gabriel came forward.  Although she had previously given several statements to the police, she had not been called as part of the Crown’s case.  Her prior statements simply indicated that she had been in the basement of the house at the relevant times, and that she had heard loud music and people talking.  This story had changed when she eventually came forward just before the addresses to the jury were to commence.  The trial judge granted the Crown’s application to reopen its case, and gave the defence permission to recall other Crown witnesses for cross‑examination, as well as to reopen the case for the defence.


 

13                               In her evidence in chief, Gabriel admitted to engaging in prostitution, drinking and drug use.  She testified that on one occasion before the killing when the police were in S.G.G.’s house on another matter, an officer used words that suggested that an informant had directed them to the house.  Gabriel stated that S.G.G. was present when these words were used, and that she said that she was going to do something about it. S.G.G. apparently believed that the informant was either T.H. or the deceased.  On the night of the murder, Gabriel was woken by loud music and voices around 11:00 p.m. or midnight.  She heard S.G.G. shouting “Who are you?” several times.

 

14                               Gabriel said that she only heard about J.B.’s death from the police two days afterwards.  She also indicated that several baseball bats and pipes that had been around the house before the killing had disappeared after the killing.  She confirmed B.R.’s evidence that he had been sent out to buy paint on the morning after the killing, and that the room had been painted on that day.  She stated that S.G.G. ran the household like “an army camp”.  She also described a trip to Trout Lake the day after the killing, when S.G.G. told B.R., H.M. and J.G. to “lose their shoes” and S.G.G. “lost” her shoes as well.  She stated that the cord from her daughter’s clock radio was missing on the day after the killing.  Gabriel admitted to lying to the police in her original statements.  In cross‑examination, defence counsel unsuccessfully tried to get her to admit that she had heard about J.B.’s death from S.G.G. on the morning afterward.  Gabriel confirmed that she had heard B.R.’s evidence at the preliminary inquiry, and that she had had a falling out with S.G.G.  However, she testified that she came forward in order to “see justice done”.

 


15                               The defence recalled one of the police officers who testified that the word “informant” had not been used in the accused’s presence.  The case for the defence was also reopened. S.G.G.’s sister, S.W., testified that S.G.G. had told Gabriel about the killing on the following day and had said that she (S.G.G.) had not participated. S.G.G. also took the stand and was once again examined and cross‑examined.  She denied much of Gabriel’s evidence, particularly that the word “informant” had been used by the police in her presence.  She admitted that Gabriel’s account of the trip during which the shoes were “lost” was true.  Ultimately the jury returned a verdict of guilty.

 

II.  Judgments Below

 

A.  British Columbia Supreme Court

 

(1)  Reopening the Crown’s Case

 

16                               Despite the objections of defence counsel, Low J. ruled that the Crown would be permitted to reopen its case so that the witness Gabriel could be heard.  In Low J.’s view, “any evidence independent of [B.R.] tending to put the accused in her home at the time of the killing, regardless of the time the killing actually occurred, becomes very important to the Crown’s case”.  He acknowledged that Gabriel’s evidence was potentially damaging to the accused, and that it confirmed B.R.’s evidence in some respects.

 


17                               Although Gabriel’s name had arisen a number of times during the Crown’s case, she had not been called because as far as the Crown knew, her evidence was unlikely to be helpful.  Low J. concluded that “she was not cooperative with the police and would not be cooperative with the Crown until she was ready to be”.  Relying upon the decision in R. v. Thatcher (1986), 24 C.C.C. (3d) 449 (Sask. C.A.), aff’d on different grounds [1987] 1 S.C.R. 652, Low J. held that the Crown could reopen its case because he was satisfied that the Crown had not “deliberately overlooked” the possibility that Gabriel could assist in proving that S.G.G. had been at home at the critical time.

 

18                               In Low J.’s opinion, leave to reopen the Crown’s case is not limited to cases of inadvertence.  Gabriel was perceived to know nothing useful, or to be too friendly with the accused to be truthful when she gave her statements to the police.  Although it was unfortunate that she did not come forward earlier, her new evidence was “of too much potential importance to be kept from the trier of fact”.  He ruled that the defence would be allowed to call evidence in reply to Gabriel’s testimony.

 

19                               Low J. then charged the jury, informing them that the evidence of Gabriel was being heard because she had come forward at the last minute, but that he had not made any pre‑determination of her credibility or reliability.  This task was the responsibility of the jury, as it was for every other witness.

 

20                               After Gabriel testified, Low J. rejected a further application by defence counsel either for an adjournment to allow the defence to prepare for her cross‑examination, or for a mistrial.  Low J. indicated that he had not changed his mind about the reopening of the case and a mistrial was not appropriate.  In his view, Gabriel’s credibility could be adequately challenged by the defence in cross‑examination.  No adjournment was granted, although some time was given for preparation for cross‑examination without adjourning the trial.

 


(2)   Admissibility of Evidence Tending to Show that the Accused Was of Bad Character

 

21                               Low J. allowed the Crown to lead evidence of the presence of stolen property in the house on the basis that it was relevant to the Crown’s theory of S.G.G.’s motives for murdering the victim.  Low J. also ruled that the Crown should be permitted to cross‑examine the accused on her sexual relationship with H.M.  In Low J.’s view, this evidence was relevant to the Crown’s theory that S.G.G. had control over H.M. and could direct his actions.  He concluded that the prejudicial effect of admitting the evidence of this relationship did not outweigh its probative value, particularly in light of the fact that S.G.G. had already admitted to a great deal of reprehensible conduct.  Low J. indicated that he would give the jury “special instruction” on how to use the evidence.

 

22                               In his charge, the trial judge cautioned the jury against convicting the accused on the basis that they did not like her, or were critical of her general conduct.  In particular, the jury was not to convict her because of her immoral or evil life, or because she was an inadequate mother.  The guilt or innocence of the accused was to be decided on the basis of the evidence as a whole, and in particular, whether the evidence demonstrated that she participated in the killing.  He cautioned that jury that:

 

It is the whole of the evidence you must consider, and evidence of the Accused’s character can be taken into account by you only in assessing her credibility as a witness, just as you will take into account the character of the Crown witnesses like [B.R.], [T.H.] and Tracy Gabriel in assessing their credibility.

 


He further cautioned the jury against convicting the accused on the basis of B.R. and T.H.’s evidence alone.  He instructed them that they should be particularly careful in accepting B.R.’s evidence since he was one of the killers, had an unsavoury reputation, and had been granted immunity.  Although corroboration of his testimony was not a legal requirement, the jury should look for evidence to support his testimony.  They should only rely on his evidence standing alone if it was safe to do so, in that it convinced the jury beyond a reasonable doubt that his version of events was true.

 

B.  British Columbia Court of Appeal (1994), 90 C.C.C. (3d) 97

 

23                               Southin J.A. saw no basis to question the Crown’s motivation in seeking to reopen its case so late in the proceedings.  Although the Crown knew of Gabriel, it did not know she had material evidence to give.  The decision by the Crown not to pressure a witness who is not forthcoming does not attract judicial scrutiny in the absence of bad faith by the Crown.  She found that it is not necessary for the Crown to expose itself to suggestions that it has bullied a witness.

 

24                               Southin J.A. held that Gabriel’s reluctance to come forward initially should not be visited on the Crown.  In her view neither the Crown’s case nor the defence changed as a result of Gabriel’s evidence, since her evidence only confirmed B.R.’s evidence in minor respects.  This was not a case in which the accused could have chosen to remain silent and escaped conviction.

 


25                               She expressed the opinion that the late appearance of Gabriel constituted the type of narrow and exceptional circumstance identified in R. v. P. (M.B.), [1994] 1 S.C.R. 555, in which the Crown should be permitted to reopen its case even after the defence has begun to call evidence.  She thought that no prejudice to the accused had resulted. If Gabriel had been called as part of the Crown’s case, it would have been even more necessary for S.G.G. to testify.  In any event, the right of the accused not to be conscripted against herself does not include the right not to be contradicted when giving a prior consistent statement.  The statement that the accused had told Gabriel about the boys’ participation in the killing was gratuitous, self‑serving and of minimal probative value. Furthermore, S.G.G.’s right to make full answer and defence was not compromised because she had adequate time to consider the gist of Gabriel’s evidence and to prepare for cross‑examination.  There was no evidence that additional time to investigate Gabriel would have generated any “ammunition” with which defence counsel could attack Gabriel’s credibility.  Nothing prevented defence counsel from calling other witnesses to reply to Gabriel ‑‑ for example, the other two boys, J.G. and H.M.  In the absence of any legal prejudice to the accused, the trial judge has the discretion to allow the Crown’s case to be reopened, and Low J. did not exercise this discretion improperly.

 

26                               Southin J.A. agreed with Low J. that S.G.G. could be cross‑examined on her sexual relationship with H.M.  The information was relevant to the Crown’s theory of the case.  The trial judge also made no error in charging the jury regarding the use that could be made of character evidence.  The charge was scrupulously fair, and stressed the unreliability of B.R.  No error was made in charging the jury regarding reasonable doubt.  The appeal was therefore dismissed.

 

III.  Issues

 

27                               These are the issues presented in this appeal:

 

(1)   Did the Court of Appeal err in upholding the trial judge’s ruling that it was permissible for the Crown to reopen its case following the close of the defence’s case?

 


(2)   Did the Court of Appeal err in upholding the trial judge’s ruling permitting the Crown to cross‑examine the appellant as to the presence of stolen goods in her home and her sexual relationship with H.M., although this evidence also indicated that she was of bad character?

 

IV.  Analysis

 

A.  Should the Crown’s Case Have Been Reopened?

 

(1)  Principles Governing an Application to Reopen the Crown’s Case

 

28                               The trial judge made his decision permitting the Crown to reopen its case prior to the release of this Court’s decision in R. v. P. (M.B.), supra.  In that decision, the reasons of Lamer C.J. set out the principles that must be applied when the Crown seeks to reopen its case, and these principles must govern in this appeal.

 

29                               The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result will generally be accorded deference.  However, that discretion must be exercised judicially, and in the interests of justice:  P. (M.B.), supra, at pp. 568‑69.  Long before the Canadian Charter of Rights and Freedoms  it was recognized that the reopening of the Crown’s case posed a number of dangers to the fairness of the trial.  See for example R. v. Kishen Singh (1941), 76 C.C.C. 248 (B.C.C.A.) per Sloan J.A.  Now that the accused’s rights to a fair trial are constitutionally protected, courts must be even more vigilant in protecting those interests.  The crucial question to be resolved upon an application to reopen the Crown’s case is “whether the accused will suffer prejudice in the legal sense ‑‑ that is, will be prejudiced in his or her defence”: P. (M.B.), supra, at p. 568.


 

30                               The ambit of a trial judge’s discretion to allow the Crown to reopen its case becomes narrower as the trial proceeds because of the increasing likelihood of prejudice to the accused’s defence as the trial progresses.  During the first stage, when the Crown has not yet closed its case, the trial judge’s discretion is quite broad.  At the second stage, which arises when the Crown has just closed its case but the defence has not yet elected whether or not to call evidence, the discretion is more limited.  Finally, in the third phase ‑‑ where the defence has already begun to answer the Crown’s case ‑‑ the discretion is extremely narrow, and is “far less likely to be exercised in favour of the Crown”.  The emphasis during the third phase must be on the protection of the accused’s interests.  See P. (M.B.), at p. 570.  In the instant appeal, the Crown sought to reopen the case in the third phase of the trial after the case for the defence had closed.

 

31                               Traditionally, the Crown was only allowed to reopen its case during the third stage of the trial if the evidence arose ex improviso ‑‑ in other words,  “if some matter arose which no human ingenuity could have foreseen”:  P. (M.B.), supra, at p. 570.  The parties argued extensively as to whether the evidence in this case arose ex improviso.  Both parties seemed to assume that such a finding should lead almost automatically to permission to reopen the Crown’s case.  I cannot accept that contention.

 


32                               The traditional ex improviso rule only allowed the Crown’s case to be reopened where the evidence could not have been foreseen by the Crown and it was in the interests of justice to permit it.  The pre‑Charter decision in Robillard v. The Queen, [1978] 2 S.C.R. 728, may have very slightly expanded the circumstances in which the Crown’s case can be reopened to include non‑controversial evidence which the Crown inadvertently omitted to adduce as part of its case.  Lamer C.J. in P. (M.B.) discussed the ex improviso exception within the context of the principle which must govern at this very late stage in the trial, namely that the interests of the accused must be protected.  In other words, prejudice to the accused must be avoided.  In all cases, the discretion of a trial judge to reopen the Crown’s case once the accused has begun to answer it is “severely curtailed” (p. 571).

 

33                               The narrowness of the trial judge’s discretion to reopen the Crown’s case at this late stage of the trial cannot be overemphasized.  In P. (M.B.), at p. 573, Lamer C.J. gave two examples of the very limited circumstances in which the Crown’s case might be reopened during the third phase.  In the first example, the conduct of the defence directly or indirectly contributed to the Crown’s failure to lead the particular evidence before the close of its case.  In the second example, the Crown made an omission or mistake on a non‑controversial issue that was purely formal or technical, and had nothing to do with the substance of the case.

 

34                               These examples are entirely compatible with the need to ensure that reopening is only allowed where no prejudice to the accused can be demonstrated.  In the first example, it does not lie in the mouth of the accused to claim prejudice where the failure of the Crown to adduce the particular evidence arises from the actions of the defence.  In the second instance, there is no prejudice to the accused because the issue which is addressed on reopening is non‑controversial and has no effect on the substance of the case.  Thus, for example, the Crown may be permitted to reopen its case to prove that the person referred to at a preliminary inquiry is the same person as the accused (Robillard, supra) because this is purely formalistic.

 


35                               Although Lamer C.J. in P. (M.B.) was careful to leave open the possibility that reopening during the third phase of the trial may be permissible in other circumstances, he was equally clear that these circumstances would be rare.  In my view, reopening at this stage should only be permitted in those very exceptional cases that are closely analogous to the examples given in P. (M.B.) ‑‑ in other words, where the absence of prejudice to the accused is manifestly obvious.  Beyond these examples, it will be extremely difficult for the Crown to succeed in an application to reopen the case once the accused has begun to answer the Crown’s case.

 

36                               The examples in P. (M.B.) addressed evidence that did not arise ex improviso.  The same principles must equally apply where the evidence has arisen ex improviso.  The fact that the Crown is not at fault in failing to discover evidence will often be irrelevant to the presence or absence of prejudice to the accused, and this must be the paramount consideration once the third stage of the trial is reached.  At that time the focus should be upon the effect that the reopening will have on the accused’s defence, and not on whether the Crown intended to create that effect.  To the extent that the Saskatchewan Court of Appeal’s decision in Thatcher, supra, comes to a different conclusion, it cannot be accepted.

 

37                               This restrictive approach is justified because reopening at such a late stage in the proceedings seriously distorts the adversarial process and affects the fairness of the trial.  Apart from the narrow exceptions discussed in P. (M.B.), supra, and other exceptional circumstances, prejudice to the accused is almost inevitable.  Yet, this is not an unreasonable or unacceptable result, in light of the very grave risks of incurable prejudice to the accused which would arise from a broader rule.  The necessity for the strict rule is understandable when some of the risks of prejudice to the accused from reopening the trial during the third phase are considered.

 


38                               One of the primary concerns that arises from permitting the Crown to reopen during the third phase of the trial is that the right of accused persons not to be conscripted against themselves will be compromised.  This right is protected under s. 7  of the Charter .  As Lamer C.J. stated in P. (M.B.), at p. 580, “there is a real risk that the Crown will, based on what it has heard from the defence once it is compelled to ‘meet the case’ against it, seek to fill in gaps or correct mistakes in the case which it had on closing and to which the defence has started to respond”.  The Crown must not be allowed to change the case it has presented once the accused has begun to answer the Crown’s case:  P. (M.B.), at p. 580. The accused’s right against self‑incrimination is not the only significant concern, however. There may also be an impact on the right to make full answer and defence, and the general right to a fair trial.

 

39                               In particular, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”.  The rule against “splitting the case” developed primarily in the context of applications to adduce rebuttal evidence by the Crown.  Applications to adduce rebuttal evidence and to reopen the case are “close cousins”, but not “identical twins”:  R. v. F.S.M. (1996), 93 O.A.C. 201, at p. 208.  Rebuttal evidence is properly admissible where the matter addressed arises out of the defence’s case, where it is not collateral, and generally, where the Crown could not have foreseen its development:  R. v. Krause, [1986] 2 S.C.R. 466, at p. 474; R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 497‑98.  With rebuttal evidence, it is the rules of the adversarial process that justify the admission of the reply evidence.   In an application to reopen, the Crown is required to establish that the evidence is material to an issue that is properly part of the Crown’s case. In order to succeed, the Crown must also explain why the evidence was not led earlier and must justify this departure from the normal rules of the adversarial process. See F.S.M., supra, at p. 208.

 


40                               It is clear that some of the same reasons for limiting the admissibility of rebuttal evidence should apply to an application to reopen, most particularly where the reopening is sought during the third phase of the trial.  The same types of prejudice are likely to arise.  With rebuttal evidence, the prejudice is alleviated in situations where the evidence is properly admissible because the matter addressed arises from the case presented by the defence and could not have been foreseen by the Crown.  In these circumstances, it cannot be said that the accused has put forward a defence without knowing the full case to be met, since the matter dealt with in rebuttal must have arisen out of the evidence put forward by the defence.  However, reopening is different from rebuttal.  As a result, it may not be possible on an application to reopen to overcome the prejudice to the accused by demonstrating that the Crown could not have foreseen the appearance of the new evidence.

 

41                               Where the evidence arises in a manner that is completely unforeseen, it could be argued that the right against self‑incrimination is not implicated to the same degree as it is where the Crown applies to reopen after discovering a gap in its case as a result of hearing the defence’s evidence.  Yet it is almost impossible for the Crown to avoid changing or filling gaps in its case, particularly where the evidence to be adduced is significant to the Crown’s case.  In other words, the Crown’s case is “split”, in spite of its best intentions.

 

42                               In these circumstances, the most significant concern is that the accused will have responded to the Crown’s case without knowing the full case to be met.  This is one of the primary rationales for the general rule that the Crown is not permitted to improperly “split its case” by adducing rebuttal evidence:  Krause, supra, at pp. 473‑74; R. v. Biddle, [1995] 1 S.C.R. 761, at p. 774.  The entitlement of the accused to know the case to meet before responding is a sound principle of trial fairness that is of equal if not greater importance in considering an application to reopen the Crown’s case.

 


43                               Prejudice to the accused where this principle is undermined is obvious where the new evidence to be adduced on reopening changes the Crown’s theory of the case.  More subtle but equally harmful effects will occur where the Crown simply fills a gap in its case, for example by adducing evidence on matters not previously dealt with in its case.  Putting forward testimony that corroborates the evidence of a material Crown witness also fills a gap in the Crown’s case, particularly where the witness might be considered unreliable in the absence of corroboration:  F.S.M., supra, at p. 211.  The respondent argues that any time the Crown seeks to reopen the case, it will seek to fill gaps in the case, and that prejudice must therefore only occur where the gap is filled as a result of something in the accused’s evidence.  In my view, however, it is because of the high risk that the new evidence will either alter or fill gaps in the Crown’s case that the rule against reopening after the accused has begun to answer the case must be strict.

 

44                               The fact that the Crown is not at fault in failing to adduce the evidence as part of its case makes no difference to the right of the accused to know the case that must be met before responding.  At the third stage of the trial, the opportunity to recall Crown witnesses and to reopen the case for the defence can never completely cure the resulting harm to the defence.  For example it does not address the very real risk that the new evidence may require the defence to reopen its case and adduce evidence that appears inconsistent with that which was given earlier.  Nor does it address the possibility that the defence may be unable, at this late stage, to effectively address the Crown’s new or enhanced case.

 


45                               The accused is almost inevitably prejudiced where, as so often will be the case, the reopening will require the accused to take the stand for a second time and undergo a second round of cross‑examination:  John v. The Queen, [1985] 2 S.C.R. 476, at p. 481; Biddle, supra, at p. 776.  This will invariably result in a double attack on the accused’s credibility.  The accused must then explain apparent inconsistencies between prior testimony and the new evidence, or must address issues not previously mentioned.  The reopening may also unfairly make the accused appear to be evasive or untruthful.  For example, it might have been unnecessary and perhaps irrelevant for the accused to address some issues on the basis of the Crown’s original case.  This may have been the sound position of defence counsel.  If  the reopening requires these new issues to be addressed, the defence is bound to appear to be evasive.  Moreover, Crown evidence on the reopening, coming at the end of the trial, may assume an unwarranted importance in the minds of the jury.  See Biddle, supra, at p. 776.  All of these consequences are clearly prejudicial to the accused’s defence.

 

46                               The decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, set forth the fundamental importance of full disclosure to the accused.  To reopen the Crown’s case at the third stage of the trial effectively brushes aside that concept which is so essential to a fair trial.  It is on the basis of that disclosure that the defence will have prepared and presented its case ‑‑ from the cross‑examination of Crown witnesses to the calling of evidence for the defence.  By the third stage of the trial the defence is entitled to expect that the Crown’s case is complete and to govern itself accordingly.  The Crown would not have proceeded with a prosecution if it believed it would fail.  Similarly, it would not close its case without adducing all the evidence it considered necessary to secure a conviction.  The Crown considered its case complete at that point.  It follows that there is nothing unfair in holding that as a general principle the reopening of the Crown’s case at the third stage is prejudicial to the defence and should not be permitted apart from the two exceptions referred in P. (M.B.) and other exceptional circumstances.

 


47                               It would be all too easy to say there could not be any prejudice to the accused as a result of the reopening since there has been no basic change in the Crown’s case. It could also be argued that the defence’s case would not have changed in any event, since the defence could not have done anything differently.  However, that would be to enter into the realm of speculation.  It would require speculation as to the nature of the cross‑examination that would have been undertaken of Crown witnesses and speculation as to the defence evidence that would have been called.  If the concept of a fair trial is to be preserved, an attempt, undertaken only with the power of hindsight, to determine whether the accused would have conducted the case differently should not be a factor in the consideration of a Crown request to reopen its case.  It is simply not possible to determine whether the defence would have changed if the evidence had been adduced in the proper order, and courts should avoid speculating to reach such a conclusion.

 


48                               The likelihood of prejudice to the accused of reopening the Crown’s case is such that it should not be permitted at the third stage of the trial save in the exceptional or analogous circumstances referred to in P. (M.B.).  If the trial judge refuses the application to reopen the case on this basis, the Crown has two options.  It may elect to proceed with the trial without the new witness.  In effect this would mean no more than that the Crown would proceed with the very case it originally intended to place before the Court.  Alternatively, if the Crown believes that the witness is of such significance that he or she must be called, the Crown can enter a stay of proceedings and recommence the trial within the requisite time period under s. 579  of the Criminal Code, R.S.C., 1985, c. C‑46 .  The Crown can then give proper notice to the defence of the nature of the testimony that will be elicited from the witness, thus ensuring the fairness of the new trial.  Since these situations will rarely arise, this approach will not result in a flood of new trials.  Yet it will alleviate the inevitable prejudice to the accused of reopening the trial at this late stage, while still permitting the evidence to be heard in the manner it should be, as part of the Crown’s case.  The Crown’s recommencement could of course be objected to by the accused.  That objection might take the form of allegations of abuse of process or of unfairness of such a degree that it violates the s. 7  Charter  rights of the accused.  The decision on the application would be for the judge presiding at the new trial.

 

(2)  Application of These Principles to this Case

 

49                               The appellant’s submissions that the Crown was negligent or wilfully blind in failing to call Tracy Gabriel as part of its original case cannot be sustained.  It is clear that the witness Gabriel was known to the Crown, and that her name arose in the testimony of a number of witnesses.  It is equally clear that, as far as the Crown knew, she had nothing useful to offer.  In fact, in his submissions to the trial judge before Gabriel came forward, defence counsel himself stated that she was not a useful witness to either the Crown’s or the defence’s case.

 

50                               The trial judge appropriately concluded that Gabriel was not prepared to cooperate with the Crown or the police until she came forward at the end of the trial.  Furthermore, if the Crown had called her during its case, she would almost certainly have testified to the version of events contained in her original statements to the police.  It is simply not practical to require the Crown to call an unhelpful witness who might potentially become helpful in order to avoid allegations of negligence when the witness comes forward late in the proceedings.  In my opinion, Gabriel’s evidence can therefore genuinely be said to have arisen ex improviso, that is to say, it could not have been foreseen.

 


51                               In my view the fact that the evidence arose in a manner that could not be foreseen is to a large extent irrelevant.  The question that remains is whether the accused could demonstrate prejudice from the reopening of the Crown’s case.  Here, it is apparent that the splitting of the Crown’s case prejudiced the appellant in most if not all of the ways referred to earlier.  Although it can be assumed that reopening at this late stage will be prejudicial to the accused, this case clearly demonstrates prejudice in a number of respects.

 

52                               Gabriel’s evidence corroborated B.R.’s evidence on a number of issues, thereby filling an important gap in the Crown’s case.  In particular, it was the only other evidence that tended to suggest that the accused might have been present in the house while J.B. was still alive.  This was an inference that could be drawn from the words “Who are you?” that Gabriel allegedly overheard.

 

53                               Gabriel’s testimony also supported other aspects of B.R.’s testimony.  In particular, she supported his evidence that he was sent to get paint on the day after the killing, and that the room in the house was repainted on that day.  Gabriel also supported B.R.’s claim that S.G.G. thought J.B. was a “rat”.  In fact, Gabriel supported this story with evidence of words spoken by police officers in front of S.G.G. in which an informant was mentioned.  This evidence had not previously been adduced by the police or any other witness.  She also confirmed B.R.’s evidence that several baseball bats and pipes that had previously been in the house had disappeared when the police searched the house after the killing.  Gabriel supported B.R.’s story that H.M. had left his shoes at a beach with the story of the trip to Trout Lake at which all the boys and S.G.G. lost their shoes.  To some extent this evidence was also new, in that it described the loss of J.G.’s and S.G.G.’s shoes, which B.R. had not referred to in his testimony.

 


54                               The fact that Gabriel’s evidence supported B.R.’s evidence in these aspects was clearly significant to the Crown’s case.  Although Gabriel herself may not have been an ideal witness, her evidence must have assisted the Crown in discharging its burden of proof.  The trial judge, in granting leave to reopen the case, acknowledged that Gabriel’s evidence was particularly significant for the Crown in placing the accused at the house when J.B. may still have been alive.

 

55                               There was a further significance to Gabriel’s evidence.  The trial judge considered B.R. to be an unreliable witness.  He carefully and emphatically cautioned the jury that it would be dangerous to convict S.G.G. on the testimony of B.R. and T.H. alone.  He pointed out that B.R. was a participant in the killing and had been granted immunity from prosecution.  The jury were specifically told to look for evidence that confirmed B.R.’s story, and it is very likely that they might have found it in Gabriel’s testimony.  The fact that Gabriel’s evidence confirmed some of B.R.’s testimony even on minor matters can only have had a positive effect on his general credibility.  This in turn would enhance his credibility on the key issue of S.G.G.’s participation in the crime.

 

56                               The end result was that the accused chose to testify and gave evidence without knowing the full case she had to meet.  Furthermore, the accused’s evidence may have provided the foundation for some of the Crown’s examination in chief of Gabriel.  In particular, Gabriel was asked when she heard about J.B.’s death.  She indicated that she heard about it from the police two days afterwards.  This contradicted S.G.G.’s claim that she had told Gabriel about the killing on the morning afterwards.  Although S.G.G.’s statement in this regard might be characterized as a prior consistent statement, no objection was made to it at trial, and it was evidence that the jury considered.

 


57                               The Court of Appeal may be correct that the accused does not have the right not to be caught in a lie.  In those circumstances, the prejudice would be of the accused’s own making.  However, it is not clear whether it was S.G.G. or Gabriel who was telling the truth on this point.  Even though S.W. eventually testified when the defence’s case was reopened and confirmed S.G.G.’s story, the impression left with the jury may well have been that S.G.G. was caught in a lie, even if she was not.  There is no doubt that this was prejudicial to the accused.

 

58                               Furthermore, Gabriel gave evidence on matters that S.G.G. had not referred to, such as the instructions to the boys to lose their shoes at Trout Lake.  As a result, it is quite likely that S.G.G.’s failure to mention the Trout Lake trip would appear to the jury to have been an evasion.  Finally, the mere fact that S.G.G. felt the need to take the stand again to answer some of these points was inherently prejudicial, since it gave the Crown a second chance to attack her credibility in cross‑examination.

 

59                               Many of the points on which S.G.G. was contradicted by Gabriel were not originally addressed by S.G.G. or other defence witnesses.  She was then left with the choice of calling additional witnesses, thus appearing to give weight to these points, or leaving the jury with the impression that she had been caught lying.  In the circumstances, the opportunity to call additional witnesses was at best a decidedly mixed blessing.  It clearly could not cure the prejudice to her defence without potentially creating further prejudicial effects.

 


60                               There can be little doubt that S.G.G.’s defence was prejudiced.  In any event, since Gabriel’s evidence did not fall into the narrow or comparable exceptions identified in P. (M.B.), supra, in which reopening of the Crown’s case is permissible during the third stage of the trial, prejudice to her defence should be presumed.  If any onus rested on her to demonstrate prejudice, she discharged that onus when her counsel argued at trial that he would have conducted the defence differently if Gabriel’s evidence had been received as part of the Crown’s case.  He pointed to the lack of time to prepare for cross‑examination, as well as the possibility that he would have adopted a different defence strategy, at least in dealing with Crown witnesses.  This was more than adequate to resolve the reopening application in his favour.

 

61                               In these circumstances, it was not in the interests of justice to allow the Crown’s case to be reopened to call Gabriel.  The only appropriate course of action would have been for the Crown to move for a stay of the proceedings and seek a new trial.  If the trial judge was convinced that the witness the Crown sought to present would give such significant evidence that a new trial was warranted, then undoubtedly judicial discretion would be exercised, a stay of the proceedings granted and a new trial directed.  The case could then recommence with a new jury, and the evidence of Gabriel would be led in its proper context ‑‑ as part of the Crown’s case.  The appeal should be allowed on this ground and a new trial directed.

 

B.  Admissibility and Use of Character Evidence

 

62                               It is not essential to determine whether the trial judge properly admitted and instructed the jury on the evidence of bad character of the accused.  The admissibility of the evidence tendered in the new trial is properly a matter for the trial judge’s discretion, applying the relevant principles of law.  However, since this issue was argued and it may be helpful to the judge presiding at the new trial, I will briefly address it.

 

(1)  Applicable Principles

 


63                               It is trite law that “character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible” (emphasis in original):  see for example Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 201‑2; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at p. 730.  However, there are three general exceptions under which evidence of bad character of the accused can be adduced:

 

(1)   where the evidence is relevant to an issue in the case:  see, for example, Morris, supra, at p. 202; B. (F.F.), supra, at p. 731.  See also R. v. Lepage, [1995] 1 S.C.R. 654, at pp. 672‑74; R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 135, per Cory J.

 

(2)   where the accused puts her character in issue:  see, for example, R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.),  at p. 352, leave to appeal granted on other grounds (1981), 56 C.C.C. (2d) 576 (S.C.C.);

 

(3)   where the evidence is adduced incidentally to proper cross‑examination of the accused on her credibility: see, for example, Lucas v. The Queen, [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, [1990] 2 S.C.R. 1293.

 

In my view, the evidence of bad character of the accused in the instant appeal was admissible as relevant to significant issues in the case, and it is therefore unnecessary to consider whether it might also have been properly admitted under the other two exceptions to the exclusionary rule.

 


64                               Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown’s theory of the case, such as motive, opportunity or means:  see R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135.  Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility:  Lewis v. The Queen, [1979] 2 S.C.R. 821.

 

65                               Evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect:  B. (F.F.), supra, at p. 731.  Even if evidence is admissible under this exception, it is clear that it still cannot be used to determine guilt simply on the basis that the accused is the type of person to commit the crime:  B. (F.F.), supra.  The trial judge has a duty to charge the jury in this regard, and to warn them against the improper use of the evidence.

 

66                               The appellant argues that a trier of fact cannot use such evidence to assess the general credibility of the accused by inferring from the bad character of the accused that she is not likely to tell the truth.  I cannot accept that contention.  Once evidence of bad character is adduced because it is relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused.  As long as the evidence is not used for the purpose of finding guilt on the basis of the accused’s alleged propensity to commit the crime, the jury can take the evidence into account in assessing the accused’s testimonial trustworthiness.

 

67                               In Davison, supra, Martin J.A. stated at pp. 441‑42 that:

 

An accused who gives evidence has a dual character.  As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule.  As a witness, however, his credibility is subject to attack.  If the position of an accused who gives evidence is assimilated in every respect to that of an ordinary witness he is not protected against cross‑examination with respect to discreditable conduct and associations.

 


                                                                   . . .

 

In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross‑examined on the issue of his credibility. In this area of the law, as in so many areas, a balance has been struck between competing interests. . . .

 

In that case, it was concluded that the accused could not be directly cross‑examined on his bad character solely to show that he as a person is not likely to tell the truth.

 

68                               In R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at p. 565, Martin J.A. explained his reasoning in Davison in this manner:

 

That case stands for the proposition that, subject to the exceptions . . . an accused may not be cross‑examined as to previous bad conduct and disreputable associations for the purpose of leading to the conclusion that by reason of his bad character (disposition) the accused is not testimonially trustworthy.  It does not, however, hold that where evidence of the accused’s bad character is properly before the jury it cannot be used in assessing his credibility.

 

Martin J.A. wisely concluded that, where evidence of bad character is properly admissible under one of the exceptions ‑‑ such as where it is relevant to an issue in the case ‑‑ it can be used as a basis for the inference that the accused’s general credibility is questionable.  It may not be conclusive on this point, but it is a factor that the trier of fact can take into account in assessing the reliability of the accused’s evidence.  This approach is eminently sound and reasonable.

 


69                               Policy dictates that evidence introduced for the sole purpose of demonstrating propensity should be ruled inadmissible because of the potential prejudice to the accused.  Yet it is clear that these policy reasons do not weigh so heavily that the evidence cannot be admitted when it is relevant to an issue presented in the case: see for example Morris, supra; B. (F.F.), supra.  In those circumstances, it has been sensibly held that juries can be trusted not to use such evidence for the impermissible purpose of determining guilt on the basis of propensity alone, so long as proper instructions are given in this regard:  R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 693‑94.

 

70                               To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted.  It is a matter of common sense that evidence of bad character may reflect badly on the accused’s credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth.  This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged.

 

71                               In R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 612, McLachlin J. made the eminently sound observation that:

 

The idea that a complainant’s credibility might be affected by whether she has had other sexual experience is today universally discredited.  There is no logical or practical link between a woman’s sexual reputation and whether she is a truthful witness.

 


Read in isolation, this statement might be taken to suggest that there is never a logical connection between the bad character of a witness and the credibility of that witness.  It must be remembered, however, that the position advanced in Seaboyer, supra, addressed the highly prejudicial use of evidence of sexual reputation in the context of a sexual assault complaint.  There is indeed no logical link between a woman’s sexual reputation and whether she is a truthful witness.  That comment does not stand for the proposition that evidence of bad character cannot in any circumstances be logically probative on the issue of credibility.  It does not hold that where evidence of bad character is properly before the jury, it cannot be used in assessing credibility.  This is the position taken by Martin J.A. in Hogan, supra, and I agree with his conclusion.

 

72                               The trier of fact will consider all the evidence before it in assessing the general credibility of witnesses, including the accused.  A judge sitting alone or a jury has the opportunity to observe demeanour, to hear the testimony of the witnesses and to assess all the evidence presented.  All of this will be taken into account in assessing the credibility of the accused, or any other witness.  Testimony as to bad character will not be the only evidence that is relevant to credibility.  It may be contradicted by the accused’s demeanour, or by other evidence supporting the accused.  It will simply be one factor among many that will lead the trier of fact to form an impression as to the truthfulness of the accused.  Provided an appropriate direction is given, it does not materially increase the risk that the accused will be convicted on the basis of her disposition, rather than for committing the acts that are the subject of the charge.

 

73                               As long as evidence of bad character is properly before the jury on an issue in the case, and its prejudicial effect is outweighed by its probative value, then a jury should not be prevented from using the evidence to assess the credibility of the accused.

 

(2)  Application of These Principles to the Case at Bar

 


74                               It is clear that the evidence of the accused’s sexual relationship with H.M. was not adduced simply to show that she was more likely to have committed the crime because of her bad character.  This evidence was relevant to an important issue in the case, namely, the ability of the accused to exercise such exceptional control over the boys that she could persuade them to assault and kill another boy.  It was therefore properly admissible, subject to a determination that its probative value outweighed its prejudicial effect.  The trial judge concluded that the probative value of the evidence did outweigh its prejudicial effect.  I make no comment on this conclusion, since this weighing must now be left for the judge presiding at the new trial.

 

75                               In the Court of Appeal, the accused did not challenge the admissibility of the evidence that there was stolen property located in her home.  In my view, Low J. was correct that the evidence of the presence of stolen property in the house prior to the killing was properly admissible.  The Crown’s theory was that S.G.G.’s motive for directing the killing of J.B. was that she thought he was a “rat”.  The exact nature of the illegal activity about which he was supposed to have informed the police is not clear in the evidence, since different witnesses testified to different theories.  The evidence of the stolen property was therefore clearly relevant to the motive for S.G.G.’s actions.  It would be admissible on this basis, even though it also demonstrated S.G.G.’s unsavoury character, as long as its probative value outweighed its prejudicial effect.  The trial judge did not explicitly weigh the prejudicial effect of this evidence against its probative value.  This task must also be left for the judge presiding at the new trial.

 

76                               Low J. properly charged the jury regarding the permissible use of the evidence, as required by B. (F.F.), supra.  The charge stressed on several occasions that the accused could not be convicted on the basis that she was more likely to have committed the crime because of her bad character.  The jury was warned against determining guilt because they thought the accused was immoral or an inadequate mother.  Although Low J. did not specifically state that the evidence could be used to demonstrate motive, this failure did not prejudice the accused.  Finally, it was not an error to charge the jury that the evidence could also be used to assess the general credibility of the accused.


 

V.  Disposition

 

77                               The appeal should be allowed, the judgment of the Court of Appeal set aside and a new trial directed.

 

The reasons of L’Heureux-Dubé and McLachlin JJ. were delivered by

 

78                               McLachlin J. (dissenting) -- What happens when a person comes forward with important evidence for the prosecution late in a criminal trial?  Can the judge permit the evidence to go in even though the prosecution has long since closed its case?  Or must the trial continue without the evidence, as important as it may be?  These are the questions at the heart of this appeal.

 

79                               My colleague Justice Cory would allow the appeal and direct a new trial.  Although he  agrees that the late evidence arose ex improviso in that it was unforeseen and emerged through no fault of the Crown, he concludes that the late evidence should not have been admitted because it rendered the trial unfair, violating the accused’s rights under s. 7  of  the Canadian Charter of Rights and Freedoms .  For the reasons that follow, I come to a different conclusion.

 

I.  When is the Crown Entitled to Reopen Its Case?

 

A.  The Situation at Common Law

 


80                               Traditionally, the common law rule was that a trial judge only had the discretion to permit the Crown to reopen its case in the third stage of the trial (i.e., when the defence had started to answer the case before him) in situations where some matter arose ex improviso which no human ingenuity could have foreseen:  R. v. Kishen Singh (1941), 76 C.C.C. 248 (B.C.C.A.); R. v. Day (1940), 27 Cr. App. R. 168.  This discretion was broadened by the English Court of Criminal Appeal in R. v. McKenna (1956), 40 Cr. App. R. 65, where the trial judge, after the defence argued that there was no case to go to the jury, permitted the Crown to reopen its case to fill a technical gap.  Byrne J., for the court, at pp. 66-67 stated:

 

...a judge...has complete discretion whether a witness shall be recalled, and this court will not interfere with the exercise of his discretion unless it appears that thereby an injustice has resulted.

 

 

 

81                               This statement was adopted by this Court, per Pigeon J., in Robillard v. The Queen, [1978] 2 S.C.R. 728, and applied to permit crucial evidence of identification to be called after both the case for the Crown and the defence had been closed and after Crown counsel had concluded its address to the jury.  The Court ruled that a trial judge may allow the Crown to submit additional evidence after the Crown has closed its case, and this discretionary power is not subject to the strict ex improviso limitation.  A court of appeal can only interfere with the trial judge’s discretion if it is shown that an injustice has resulted or there was prejudice to the accused.

 

B.  The Situation Post-Charter 

 


82                               The next question is whether the adoption of the Charter  has changed the common law.  The Charter  confirmed the right of the accused to a fair trial expressly by s. 11 (d) and the right to make full answer and defence  by implication from s. 7 .   However, this does not preclude deviations from the usual order of calling evidence where necessary to get at the truth.  As this Court, per Cory J., stated in R. v. Aalders, [1993] 2 S.C.R. 482, a case concerned with the Crown’s right to call rebuttal evidence, at pp. 498-99:

 

The course of a trial, particularly a criminal trial, must be based upon rules of fairness so as to ensure the protection of the individual accused.  However, the rules should not go so far as to deprive the trier of fact of important evidence, that can be helpful in resolving an essential element of the case.

 

83                               In R. v. P. (M.B.), [1994] 1 S.C.R. 555, this Court considered the issue of whether the Crown could reopen its case to amend dates in the indictment.  Unlike the case at bar, there was no issue of introducing late evidence which comes to light ex improviso.  The Court ruled, 5-4, that the amendment could not be made.  However, all members agreed that the amendment was in the discretion of the trial judge and that the test for reopening is whether the accused will be prejudiced in his or her right to make full answer and defence.  The majority and minority differed on whether, on the facts of the case, that test was met.  The majority concluded that it had been met, emphasizing the fact that in its view changing the dates in the indictment changed the case the accused had to meet and that permitting the change might deprive the accused of his planned defence and force him to take the stand, thereby violating the accused’s privilege against self-incrimination.  The majority also expressed concern that to permit the amendment would amount to compelling the defence to assist the Crown. The minority, on the other hand, took the view that there was no prejudice which would offset the value of allowing the erroneous date to be corrected.  L’Heureux-Dubé J. stated that “[m]ere technicalities cannot be allowed to hamper the administration of justice ... particularly where no prejudice of any kind can result to the accused” (pp. 591-92).  In summary, P. (M.B.), although dealing with a different situation from that at bar, affirmed the discretion of the trial judge to adjust the trial process to deal with late developments.

 


84                               The rule, both before and after the Charter ,  thus appears clear.  The trial judge may permit the Crown to call evidence after it has closed its case.  The test is “whether the accused will suffer prejudice in the legal sense -- that is, will be prejudiced in his or her defence”: P. (M.B.), supra, at p. 568.  The decision is in the discretion of the trial judge and should not be interfered with on appeal unless the accused has suffered an injustice.

 

85                      The difficulty arises not from the statement of the rule, which all members of this Court accepted in P. (M.B.), but in its application.  The importance of this appeal is that it compels the Court to explore this application.  In particular, it compels the Court to confront the question of what is required to establish that the accused will be prejudiced in his or her defence.

 

II.  What Constitutes Prejudice to the Accused?

 

85                               Cory J. suggests that during the third stage of the trial, after the defence has started to present its case, prejudice from the admission of new evidence can be presumed.  He states that if any onus rests on the accused to show prejudice, the onus is discharged when counsel for the accused argues that the defence might have been different if the late evidence had been received as part of the Crown’s case.  The possibility that the defence might have been different  suffices to require the trial judge to reject the new evidence and, failing a halt being called by a stay or order of mistrial, continue the trial without the evidence.  Essentially,  in Cory J.’s view, the accused need not show “prejudice in the legal sense”.  The speculative possibility that prejudice might be sustained suffices.

 


86                               In my respectful opinion, this view is at odds with the settled jurisprudence and the practice of this and other common law courts.  It amounts to abdication of the duty which has long been placed on judges to actively evaluate, in those rare cases where unforeseen evidence emerges late in the trial, whether receiving the evidence will actually prejudice the accused.

 

87                               As outlined above, the common law rule which has been adopted and affirmed by the Court emphasizes two things.  First, the decision to receive evidence presented late in the trial through no fault of the Crown is within the discretion of the trial judge.  Second, an appeal court should not interfere with that discretion unless it appears that an injustice has resulted.

 

88                               Both assertions are important to our understanding of how the rule is applied.  The fact that the decision was treated as within the trial judge’s discretion implies that the issue is one of weighing and balancing (otherwise it would be a matter of rule application, not discretion).  To put it another way, the issue could theoretically be resolved in different ways.  We trust to the trial judge’s discretion -- to the common sense, experience in judgment and appreciation of the dynamic of the trial at issue that the term “discretion” implies -- to choose the solution best suited to the attainment of a just result, having regard, of course, to the paramount need to avoid prejudice to the accused.  The second aspect of the rule -- that a court of appeal will not interfere with the exercise of the discretion -- reflects the discretionary nature of the judge’s decision and the deference that the law traditionally accords to such decisions.

 


89                               Approaching the question of admission of evidence as a matter for the discretion of the judge on all the circumstances of the case accords with the philosophy of the Charter .  Thus s. 24(2) mandates a discretionary inquiry grounded in the facts of a particular case in determining whether evidence taken in breach of Charter  rights should be admitted.  I see no reason to apply a different approach where the argument is that the evidence, although not taken in breach of the Charter , would result in a Charter  breach if admitted. 

 

90                               Since the issue is essentially a factual inquiry into the impact of the late evidence in a particular case, it is impossible to develop rules based on the stage at which the late evidence is tendered.  While it may be suggested that the later the new evidence appears, the more difficult it may be to gain its admission (see P. (M.B.)), this is a predictive statement, not a rule of law.  The cases show that evidence has been received even after the prosecution’s address to the jury: Robillard, supra.  In each case, the question is whether admitting the late evidence is likely to result in injustice or, in Charter  language, to prejudice the right of the accused to a fair trial in which she can make full answer and defence.

 

91                               I find no merit in the suggestion that the accused should not be obliged to prove prejudice to her right to make full answer and defence.  The accused is not obliged to prove any element of the Crown’s case, nor to prove her innocence.  To require her to do so would be to violate her privilege against self-incrimination.  But procedural rights are a different matter.  While important, they do not engage the principle against self-incrimination in the same way.  There is nothing unfair in requiring an accused person to show that she has been or would be procedurally disadvantaged by a proposed ruling.  The prime example is provided by the Charter , which places the burden of showing a breach of Charter  rights on the accused in criminal proceedings.

 


92                               It follows from these propositions that an application to permit evidence tendered late in the trial evokes an inquiry focussed on the facts and the circumstances of the trial.  The question for the trial judge in exercising his or her discretion is whether, in all the circumstances, the accused has shown that her right to make full answer and defence would be prejudiced.  There is no room for presumptions of prejudice.

 

93                               Practical and policy considerations also support my conclusion that there is no room for presumptions of prejudice or abstract inferences of harm in applying the test of whether admission of unforeseen late evidence will prejudice the right of the accused to make full answer and defence.  The presumptive approach to prejudice advocated by Cory J. would make it virtually impossible to introduce unforeseen evidence late in the day.  Judges would be bound to reject applications for late evidence made at a certain stage, on the basis of presumed prejudice.  It is difficult to conceive of any situation in which prosecution evidence could be presented after the defence has opened its case.  The law has hitherto preserved the flexibility to deal with the rare (outside of fiction), but inevitable, case of evidence coming to light late in the day.  That has been regarded as a good thing.  A more rigid approach will deprive the law of this flexibility.

 

94                               This judicial inability to reopen cases to admit evidence that comes to light late in the day will mean that juries, after having heard days, weeks, or months of testimony, may be required to render a verdict in the absence of important evidence that everyone but the jurors knows about.  The jurors, kept in the dark, may render a verdict which does not reflect the facts that others know about.  This is an undesirable result, both for the case at bar and for the repute of the administration of justice as a whole. 

 


95                               Alternatively, one might suggest that the Crown could apply for a mistrial or stay the proceedings rather than allow the trial to proceed without the evidence.  At this point, we enter a procedural labyrinth of uncertainty.  Could a mistrial be granted where, on the record, the trial has proceeded in accordance with the law?  As for a stay, it hardly seems a desirable way to resolve the proceedings in the absence of prejudice; a judicial stay, for example, is granted only in the rarest of cases upon factual demonstration of prejudice.  Moreover, if a stay is entered, a new trial is unlikely.  The accused would remain at large, charged but not tried.  The closure so important to the victims of crime, the public and often the accused could not be achieved.  The only way to bring the matter to a conclusion would seem to be for the trial judge to erroneously admit the new evidence.  Then, on appeal, a new trial could be ordered.  But even on this scenario, the result is a second trial with attendant additional expense and delay.  All witnesses would have to testify again.  For complainants, particularly in sexual assault cases, the emotional stress of reliving the events would be revisited upon them when they are forced to testify again at the second trial.

 

96                               Faced with these disadvantages, we come to the reason why they are said to be justified -- protection of the right of the accused to make full answer and defence. The question is simply put: can the right of the accused to make full answer and defence find adequate protection in the absence of a presumption of prejudice where unforeseen evidence comes forward at a late stage of the proceedings?  In my view, it can.  The trial judge is immersed in the case and fully aware of the rights of the accused.  He or she is in the best position to determine whether, as a practical matter, reception of the evidence will prejudice the accused’s rights.  If the trial judge errs and it appears injustice has resulted, the court of appeal will correct the matter and order a new trial.  These safeguards will amply protect the accused’s right to make full answer and defence.

 


97                               What standard should the judge use in deciding whether the accused’s right to make full answer and defence would be prejudiced by reception of the late evidence?  Is the standard a theoretical possibility that the accused’s right to make full answer and defence will be prejudiced, a possibility grounded in the facts surrounding the trial, or a probability of prejudice?   Byrne J. in McKenna spoke of the impropriety of an appeal court interfering with the judge’s discretion “unless it appears that thereby an injustice has resulted” (pp. 66-67) (emphasis added).  This suggests that a theoretical possibility of some injustice is insufficient.

 

98                               There must be a reasoned basis, grounded in the facts of the case and the way the trial has unfolded and will unfold, for concluding that the accused’s right to make full answer and defence will probably be prejudiced by receiving the new evidence.  The prejudice must be specific and identifiable.  The judge may be expected to address issues like the following.  If the evidence had been introduced earlier, what would the defence have done differently and how would that have affected the outcome?  Has the defence lost opportunities to develop evidence which might well have undermined the late evidence?  Is the potential prejudice capable of being corrected by permitting the defence time to cross-examine the witness, produce rebutting evidence, or recall witnesses who have earlier testified?

 

99                               “Prejudice”, for the purposes of this inquiry, is used in the legal, procedural sense.  The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice.  The inquiry into prejudice focuses not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused’s right to make full answer and defence.  The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly.  The just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence.

 


100                           Nor does the inquiry into prejudice assume that the accused has a right to a trial conducted in accordance with a particular procedure.  Rules of procedure are important aids to ensuring that trials are conducted fairly and accused persons are accorded the right to make full answer and defence.  But they are not ends in themselves.  They are the servants of justice, not its masters.  Inevitably circumstances arise which make it  necessary to deviate from this rule or that.  The law permits this, provided that when the entire trial is viewed as a whole, it cannot be said that injustice has resulted or that an accused has been denied his right to make full answer and defence.  The Charter  guarantees the accused a fundamentally fair trial, not a perfect trial: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362 per La Forest J.; R. v. Harrer, [1995] 3 S.C.R. 562, at p. 587 per McLachlin J..

 

101                           Finally, in exercising his or her discretion to admit late evidence, the judge must not overlook the importance of providing the trier of fact with the evidence it needs to resolve the issues before it.  As Cory J. put it in Aalders, supra, “the rules should not go so far as to deprive the trier of fact of important evidence, that can be helpful to resolving an essential element of the case” (pp. 498-99).  Although the emphasis is on the protection of the accused during the third stage of the trial (P. (M.B.), supra, at p. 570), society’s interest in the efficient administration of justice is still a valid consideration.  The judge must consider both in deciding whether to admit evidence which appears for the first time late in the trial.  The more serious the prejudice to the accused in allowing the evidence to be admitted, the less important are society’s interests.

 


102                           In summary, the approach of presumptive or inferred prejudice suggested by Cory J. in this case is inconsistent with the approach taken by the English courts in cases like McKenna and this Court in cases like Robillard and Aalders, supra.  The jurisprudence suggests that a trial judge has a discretion to receive unforeseen evidence late in the trial provided the accused’s right to make full answer and defence is not thereby prejudiced, and that absent apparent injustice, a court of appeal should not interfere with the exercise of this discretion.  The same jurisprudence suggests that the inquiry before the trial judge is founded in the facts and circumstances of the particular case and that there is no presumption or automatic inference of prejudice.  The question is whether in the particular circumstances of the case, actual prejudice to the right to make full answer and defence is likely to result.  This approach protects both our system of justice and the accused’s Charter  rights.

 

III.  Application of Principles to the Facts

 

103                           Against this background, I return to the events giving rise to this appeal.  In my view, the trial judge made no error in exercising his discretion in favour of receiving the late evidence of Tracy Gabriel.  The Court of Appeal approached the review of his decision by applying the right test.  It asked whether, in the circumstances of the trial, admission of the late evidence prejudiced the accused’s right to make full answer and defence.  After a careful review of what would probably have happened had the evidence been presented as part of the prosecution’s case, the Court of Appeal concluded that admission of the late evidence did not deprive the accused of a fair trial and did not violate her right to make full answer and defence.  I come to the same conclusion.

 


104                           First, I would distinguish this case from P. (M.B.), supra, where the majority held that the accused was conscripted against himself.  In the case at bar, the accused was not conscripted against herself in the sense that her evidence made the Crown aware of gaps in its case.  The Crown was always aware that it did not have significant evidence to corroborate B.R.’s evidence.  It was aware of the gap in its case from the outset, but was not aware that there was any corroborating evidence to fill that gap.  It was not until Gabriel came forward late in the trial that the Crown was made aware that the gap in its case could potentially be filled. 

 

105                           The majority seems to suggest that the accused suffered prejudice because Gabriel’s evidence was significant and useful to the Crown’s case.  As I indicated above, this is not a demonstration of actual legal prejudice.  The evidence would have been equally significant and useful had the evidence been introduced during the Crown’s case.  An accused’s Charter  rights are not violated simply because late evidence bolsters the Crown’s case.  That is a function of the strength of the late evidence and not of the timing of the evidence.

 

106                           Although Gabriel’s evidence was significant, it did not change the Crown’s  case, nor did it change the defence case.  Gabriel’s evidence mainly corroborated  evidence already before the jury.  As pointed out by the Court of Appeal, only in two respects could Gabriel be said to have added something new or different.  She denied the accused’s account of telling her on the Saturday of coming home and finding J.B. already dead.  She also said that all three boys, upon the accused’s instructions, left their shoes at Trout Lake.  Although this evidence was new, it did not change the nature of the Crown’s case.  It simply corroborated the theory already developed by the Crown -- that the accused instructed the boys to kill the deceased and then attempted to eliminate all of the potentially incriminatory evidence.  Nor did Gabriel’s evidence change the defence case.  The defence theory continued to be that the accused came home to find J.B. already dead on the night in question and that her ensuing actions were only done to protect the boys.  Her instructions to the boys to lose their shoes were consistent with this theory. 

 


107                           The appellant argues that her ability to make full answer and defence was prejudiced in that she would have conducted her defence differently had she known about Gabriel’s evidence.  Having her evidence contradicted by Gabriel, she suggests, made it appear as if she were caught in a lie.  Again, the submission fails to establish prejudice in the required legal sense.

 

108                           The first point to note in connection with this submission is that the Crown did not raise the prior inconsistency said to give rise to the prejudice in its questioning of Gabriel.  In the course of developing the narrative of Gabriel’s evidence, Crown counsel asked only the general question of when Gabriel became “aware or believed” the deceased had died, to which Gabriel replied “I think it was about two days after” (emphasis added).  Crown counsel left the matter there.  At this point, the contradiction was inchoate, speculative and probably of little consequence.  It was counsel for the appellant who chose to explore Gabriel’s impression as to when she learned of the death in cross-examination and thus link it with the conversation which Gabriel had had with the appellant.  Thus it was the appellant herself who elevated the matter to the status of a collateral issue.

 

109                           The second observation pertinent to this submission is that an accused’s right to a fair trial and the right to make full answer and defence does not extend to the right to be protected from contradiction of normally inadmissible, collateral, self-serving statements.  The appellant does not suggest that she would not have taken the stand had Gabriel testified, a consideration which might have brought the case within the purview of P. (M.B.), supra.  She only argues that she was prejudiced because it appeared as if she were caught in a lie.  Any such complaint lies ill in the mouth of a witness who chose to lead the evidence concerning the self-serving statement in the first place.

 


110                           The final answer to this submission is that as the trial in fact unrolled, the appellant was afforded the opportunity to meet the disparity between the two versions of what the appellant told Gabriel.  She availed herself of this opportunity by calling her sister to testify in support of her version.  She was thus permitted to make full answer and defence to Gabriel’s evidence.  It follows that this submission raises no more than a speculative possibility of prejudice incapable of supporting the rejection of Gabriel’s evidence or an order for a mistrial or stay.

 

111                           Cory J. suggests that the appellant was prejudiced because she was forced to respond to Gabriel’s new evidence, thereby appearing to give it weight .  In my view, any appearance of increased importance that may flow from late evidence can be eliminated by a specific instruction from the trial judge.  Modern juries are sophisticated enough to understand that circumstances arise leading to procedural irregularities.  With proper instruction, juries are capable of weighing all of the evidence in proper perspective, notwithstanding that different aspects of the evidence are proffered at different points in the trial.   The trial judge properly instructed the jury concerning the late evidence.  He carefully advised the jury that Gabriel’s evidence should be considered on the same footing as the other evidence in the case.   In these circumstances, the late presentation of Crown evidence did not prejudice the appellant’s right to a fair trial.

 


112                           The appellant also argues that she was not able to make full answer and defence because she lacked sufficient time to prepare for cross-examination of Gabriel.  As the Court of Appeal pointed out, a witness statement was provided to defence counsel on  June 3 and cross-examination was not concluded until June 8.  The appellant had five days, including two days on the weekend when court was not in session, to prepare for the cross-examination of Gabriel.  Gabriel was not a stranger to the appellant.  The appellant and Gabriel had been good friends for many years.  It follows that the argument that the appellant needed more time to find “ammunition to attack her credibility” is without merit.  The transcript of the evidence reveals that the appellant had ample ammunition to attack Gabriel’s credibility.  The appellant does not point to any other evidence of bad character that could have been found had she been allowed more time to search out “ammunition”.  In my view, the appellant had sufficient time to prepare for the cross-examination of Gabriel and accordingly, her ability to make full answer and defence was not prejudiced.

 

113                           The appellant finally argues that she might have dealt with the other Crown witnesses differently had she known about Gabriel’s evidence.  The fact that she might have cross-examined the other witnesses differently does not necessarily mean that she suffered prejudice.  The appellant was free to recall the other Crown witnesses to question them about matters arising out of the late evidence.  (Given the order for exclusion of witnesses, those witnesses would not have heard the late evidence.)  The appellant was also free to call new witnesses, which she did.  The appellant has not shown that her inability to deal with the Crown witnesses irremediably prejudiced her ability to make full answer and defence.

 

114                           In conclusion, I agree with the Court of Appeal that this is not a case where “it appears that ... an injustice has resulted” from admission of the late evidence (McKenna, supra, at pp. 66-67).  To put it in the language of the Charter , it is not a case where prejudice to the accused’s right to make full answer and defence has been shown.

 

115                           I agree with Cory J. on the issue of character evidence.  I find no reason to intervene in the trial judge’s discretionary finding on the admissibility of this evidence.

 


116                           I would dismiss the appeal and confirm the conviction.

 

The reasons of Sopinka and Major JJ. were delivered by

 

117                           Sopinka J. -- I agree with Cory J. for the reasons he gives that the trial judge erred in reopening the case in order to allow the Crown to call another witness.  I also agree that a new trial must be ordered.  With respect, I disagree that the evidence of previous sexual activity of the appellant with one of the boys and the evidence of stolen property located in the appellant’s home was admissible for the purpose of assessing the general credibility of the appellant.  In my view, its use should have been limited to the purposes for which these pieces of evidence were admitted.

 

118                           It is well established that an accused who has not put his or her character in issue cannot be cross-examined with respect to discreditable misconduct which is not charged in the indictment unless the evidence is otherwise relevant to an issue.  This restriction on cross-examination is simply part of the rule that was laid down in R. v. Rowton (1865), 10 Cox C.C. 25, which prohibits the Crown from leading evidence tending to show that the accused is of bad character unless the accused has adduced evidence of good character and thereby placed his or her character in issue.

 


119                           The rationale for this exclusionary rule is not that the evidence is logically irrelevant but that its probative value is exceeded by its prejudicial effect.  See Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 198-203, per Lamer J.  Accordingly, such evidence is excluded as a matter of policy.  This policy, the expression of which is attributed to the Makin case (Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.)) as the seminal authority, is that an accused should be tried on the basis of evidence presented relating to the transaction charged and not on the basis of disposition to commit the crime.  In Maxwell v. Director of Public Prosecutions (1934), 24 Cr. App. R. 152 (H.L.), this policy was described at p. 169 as:

 

. . . one of the most deeply rooted and jealously guarded principles of our criminal law, which, as stated in Makin v. Attorney-General for New South Wales ([supra], at p. 65), is that “it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried.”

 

 

120                           This policy applies equally whether the evidence is introduced through Crown witnesses or by cross-examination of the accused.  Moreover, it applies notwithstanding that the purpose of the cross-examination is limited to attacking the credibility of the accused.  Accordingly, an accused person who testifies and has  not placed his or her character in issue cannot be cross-examined on discreditable conduct unless such conduct relates to an issue other than the credibility of the accused.  This exception to the general rule which prohibits such cross-examination will often apply when the cross-examination is directed to prove the falsity of some aspect of the evidence given by the accused.  In R. v. Davison (1974), 6 O.R. (2d) 103 (C.A.), at pp. 123-24, Martin J.A., after reviewing the authorities including several decisions of this Court, concluded as follows:

 

I conclude that, save for cross-examination as to previous convictions permitted by s. 12  of the Canada Evidence Act , an accused may not be cross-examined with respect to misconduct or discreditable associations unrelated to the charge on which he is being tried for the purpose of leading to the conclusion that by reason of his bad character he is a person whose evidence ought not to be believed.  Cross-examination, however, which is directly relevant to prove the falsity of the accused’s evidence does not fall within the ban, notwithstanding that it may incidentally reflect upon the accused’s character by disclosing discreditable conduct on his part.

 

 


I agree with this statement of the law.

 

121                           Martin J.A. also commented on the reason why the policy against the use of character evidence for the purpose of determining innocence or guilt applies to prohibit use of such evidence to impugn the credibility of an accused who testifies.  At p. 121 he stated:

 

In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross-examined on the issue of his credibility.  In this area of the law, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other.

 

Consequently, limitations are imposed with respect to the cross-examination of an accused which do not apply in the case of an ordinary witness.

 

 

122                           I would add that there is good reason why the policy applies a fortiori to prevent the use of such evidence for the purpose of impugning credibility.  As I have stated above, when evidence as to disposition is tendered for the purpose of proving guilt, it is logically relevant.  It is excluded by reason of our system’s aversion to convicting a person charged because he or she is a bad person.  If an accused could be convicted on the basis of past misconduct which disclosed a disposition to commit the offence charged, an old offender might never be able to obtain a fair trial on the basis of evidence relating to that charge.  In respect of credibility, it is highly questionable that as a general rule a logical relationship exists between misconduct and veracity.  Wigmore (Wigmore on Evidence, vol. 3A (Chadbourn rev. 1970)), speaking about the use of character evidence to discredit witnesses generally, stated at p. 724:

 


The modern tendency is to abandon the old notion (a mark of a primitive stage of opinion) that a usually bad man will usually lie and a usually good man will usually tell the truth.  It would seem desirable to consider the expediency of restricting the resort to this feeble and petty class of evidence.  Another and more advanced generation will possibly persuade itself to this decision. . . .

 

 

 

And at p. 725:

 

 

 

From the point of view of modern psychology, the moral disposition which tends for or against falsehood is an elusive quality.  Its intermittent operation in connection with other tendencies, and the difficulty of ascertaining its quality and force, make it by no means a feature peculiarly reliable in the diagnosis of testimonial credit.  Hence to the psychologist, the common law’s reliance on character as an index of falsehood is crude and childish.

 

 

123                           Section 12  of the Canada Evidence Act, R.S.C., 1985, c. C-5 , which permits a witness, including an accused, to be cross-examined on previous convictions, is a legislated exception to the policy.  In R. v. Corbett, [1988] 1 S.C.R. 670, this Court held that notwithstanding the absolute language of s. 12 , when the section is interpreted in light of the provisions of the Charter , it confers on the Court a residual discretion to exclude such cross-examination when the interests of justice require it.  Dickson C.J., who wrote the majority reasons, agreed with La Forest J., dissenting, that there was a discretion to exclude such cross-examination and generally with the manner in which it is to be exercised.  Their disagreement related to the application of the principles applied by La Forest J. to the facts of the case.  In the course of his reasons, La Forest J. stated at p. 719:

 


Nonetheless, the issue raises Charter  concerns.  These receive some support from recent empirical studies that suggest, albeit inconclusively, that whether or not a person tells the truth as he perceives it is a function primarily of the specific context or situation, and not of past conduct, or that, at best, only convictions for crimes involving a lack of veracity are relevant (in the Thayerian sense) to credibility: see, e.g., Lawson, “Credibility and Character: A Different Look at an Interminable Problem” (1975), 50 Notre Dame Lawyer 758, at pp. 783-89; Doob and Kirshenbaum, “Some Empirical Evidence on the Effect of s. 12  of the Canada Evidence Act  Upon an Accused” (1972-73), 15 Crim. L.Q. 88; see also the discussion in Schiff, Evidence in the Litigation Process (2nd ed. 1983), vol. 1, at p. 544.

 

 

One of the factors to be considered in the exercise of this discretion is whether the conviction is integrity- or credit-related.

 

124                           A recent example which is directly relevant to this appeal and which illustrates the lack of any connection between misconduct and credibility is contained in R. v. Seaboyer, [1991] 2 S.C.R. 577.  For many years, previous sexual misconduct of a complainant was treated as relevant to a complainant’s credibility.  In Seaboyer this “myth” was totally discredited.  At p. 612, McLachlin J. on behalf of the majority stated:

 

The idea that a complainant’s credibility might be affected by whether she has had other sexual experience is today universally discredited.  There is no logical or practical link between a woman’s sexual reputation and whether she is a truthful witness.

 

 

It would seem that this principle should apply a fortiori to an accused, especially so in this case in which the accused has not put her character in issue.

 


125                           In view of the strong policy against the use of character evidence to impugn credibility, I do not understand the rationale that permits the policy to be discarded when evidence of bad character is admitted, not because it is shown to be relevant to credibility, but because the evidence is relevant to another issue.  Of course, if it is admitted under the exception referred to in Davison, supra, to show the falsity of testimony given by the accused, it will also be relevant to credibility generally.  That is because the accused’s evidence is shown to be false in one respect and an inference may be drawn that the accused is not credible in other respects.  If, however, the only effect of the evidence is that it tends to show a disposition to be untruthful, then there is no reason that the policy against the use of such evidence should not apply.  If the evidence is admitted for another purpose, its use should be restricted to the purpose for which it is admitted.  It is a principle that is generally applied when evidence is admitted for a limited purpose.  The principle is implemented by an instruction to the trier of fact as to the limited use to which the evidence is to be put.  The examples of the application of the principle are legion.  It has been applied to restrict the use of: (1) similar acts (see R. v. D. (L.E.), [1989] 2 S.C.R. 111); (2) cross-examination of an accused on convictions under s. 12  of the Canada Evidence Act  (see Corbett, supra, at p. 688); and (3) hearsay evidence admissible for a limited purpose (see Boykowych v. Boykowych, [1955] S.C.R. 151, at pp. 160-61).

 

126                           To the extent that R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), suggests that once evidence is adduced for any purpose it can be used to impeach credibility if it reflects adversely on the character of the accused, I would not follow it.  While I have the greatest respect for the opinion of Martin J.A., the statement relied on by Cory J. contains no explanation as to why the policy against the use of such evidence is displaced because the evidence gets in for another limited purpose.  No authority is cited other than Davison, supra.  Martin J.A. correctly observes that that case does not hold that the evidence that is properly in the record cannot be used in assessing credibility.  But it does not state that it can be used for that purpose.  Nor was the evidence used for that purpose notwithstanding that it might have been so used since it appears to have been admitted under the exception that permits such evidence to be admitted to show the falsity of evidence given by the accused.

 


127                           The evidence in this case was admitted with respect to its relevance to issues other than credibility.  The previous sexual misconduct with H.M. was admitted as tending to show why he would be subject to the appellant’s direction and control.  The evidence as to stolen property tended to explain the motive for reprisals against the deceased.  It was not admitted for the purpose of impugning credibility but, clearly, the jury were instructed that it could be used for this purpose.  Such use was highly prejudicial to the appellant.  Since I agree with Cory J. that there must be a new trial by reason of the error in respect of the first ground, it is unnecessary to consider the application of s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 , to this ground.

 

Appeal allowed, L’Heureux‑Dubé and McLachlin JJ. dissenting.

 

Solicitors for the appellant:  Oliver & Company, Vancouver.

 

Solicitor for the respondent:  The Ministry of the Attorney General, Vancouver.

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