R. v. Krause

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
• Citation: (1986), 71 N.R. 61 (SCC),JE 86-1137,AZ-86111080,1 WCB (2d) 9,[1987] 1 WWR 97,33 DLR (4th) 267,14 CPC (2d) 156,[1986] 2 SCR 466,1986 CanLII 39 (SCC),54 CR (3d) 294,[1986] CarswellBC 330,7 BCLR (2d) 273,71 NR 61,29 CCC (3d) 385,[1986] SCJ No 65 (QL)
• Court: Supreme Court (Canada)
• Date: 20 November 1985

R. v. Krause (1986), 71 N.R. 61 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Krause

(18726)

Indexed As: R. v. Krause

Supreme Court of Canada

Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.

November 6, 1986.

Summary:

The accused was charged with first degree murder. He was convicted of second degree murder after a trial before a judge and jury. The accused appealed.

The British Columbia Court of Appeal, in a decision reported in 12 C.C.C.(3d) 392 dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The issue before the Supreme Court was whether the Crown was permitted to call rebuttal evidence. The Supreme Court held that the trial judge erred in permitting the Crown to call rebuttal evidence pursuant to s. 11 of the Canada Evidence Act.

Criminal Law - Topic 5431

Evidence - Witnesses - Cross-examination of accused - General - The Supreme Court of Canada stated that Crown counsel in cross-examining the accused are not limited to subjects which are strictly relevant to the essential issues in a case - Counsel are accorded a wide freedom in cross-examination which enable them to test and question the testimony of the witnesses and their credibility - See paragraph 17.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The Supreme Court of Canada stated that the general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case (i.e put in part of its evidence at the outset, then close its case and after the defence is complete add further evidence to complete its case) - The Crown or plaintiff must produce or enter all the clearly relevant evidence available or that it intends to rely on, to establish its case - See paragraph 15.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The Supreme Court of Canada stated that the plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated - Rebuttal is not permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made - See paragraph 16.

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - The Supreme Court of Canada stated that where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief, and where the matter is concerned with the merits of the case, then the Crown may call evidence in rebuttal - Where, however, the new matter is collateral, i.e. not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed - This is known as the rule against rebuttal on collateral issues - See paragraph 17.

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - The accused testified and was cross-examined by the Crown about his statements to police - Although the statements had been ruled admissible on a voir dire, the Crown did not intend to include them in its case - The accused's cross-examination attacked police integrity - The Crown sought to call rebuttal evidence under s. 11 of the Canada Evidence Act - The Supreme Court of Canada held that no rebuttal was permitted under s. 11, because the accused made no past inconsistent statements respecting such issues - The evidence sought to be rebutted was not material or relevant on the question of guilt or innocence, was therefore collateral and was not the proper subject of rebuttal - See paragraphs 17 to 21.

Cases Noticed:

R. v. Bruno (1975), 27 C.C.C.(2d) 318 (Ont. C.A.), refd to. [para. 15].

Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd. Patten; L.A. Corney Commercial Deliveries Ltd. v. Bernard and Dynamic Displays Ltd., [1967] 1 O.R. 18, refd to. [para. 15].

Attorney General v. Hitchcock, [1847] 1 Ex. 91, refd to. [para. 17].

R. v. Cargill, [1913] 2 K.B. 271 (Ct. Crim. App.), refd to. [para. 17].

R. v. Hrechuk (1951), 58 Man. R. 489 (C.A.), refd to. [para. 17].

R. v. Rafael, [1972] 3 O.R. 238 (C.A.), refd to. [para. 17].

R. v. Latour, [1978] 1 S.C.R. 361; 14 N.R. 216, refd to. [para. 17].

R. v. Krause (1984), 12 C.C.C.(3d) 392 (B.C.C.A.), refd to. [para. 17].

R. v. Perry and Franks (1977), 36 C. C.C.(2d) 209 (Ont. C.A.), appld. [para. 21].

Statutes Noticed:

Evidence Act, R.S.C. 1970, c. E-10, sect. 11 [paras. 12-13, 18, 21].

Counsel:

John Green, for the appellant;

A. Stewart, for the respondent.

Solicitors of Record:

Turnham, Green & Co., Victoria, for the appellant;

Attorney General of British Columbia, Victoria, for the respondent.

This appeal was heard before Dickson, C.J., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada, on November 20, 1985. The decision of the Supreme Court was delivered by McIntyre, J., on November 6, 1986.