R. v. MacDonald (A.R.), [1999] O.T.C. 174 (SupCt)

• Judge: Howden, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 26, 1999
• Jurisdiction: Ontario
• Citations: [1999] O.T.C. 174 (SupCt)

R. v. MacDonald (A.R.), [1999] O.T.C. 174 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. JN.020

Her Majesty The Queen v. Allan Roy MacDonald

Indexed As: R. v. MacDonald (A.R.)

Court of Ontario

Superior Court of Justice

Howden, J.

October 26, 1999.

Summary:

The defence applied to make its opening address to the jury immediately following the Crown's opening statement.

The Ontario Superior Court discussed the risks and benefits of allowing such a procedure. There was an advantage in focusing the issues for the jury. There was a risk of a mistrial if the defence stated to the jury its theory of the case and what evidence was expected and then later failed to adduce evidence to support its position. There was also a risk of mistrial if defence counsel presented an initial expected course and then later chose to take a different tack in a direction contradictory to or inconsistent with the earlier defence statement. In the present case the defence reserved the right to remain mute as to any specific defence until after the prosecution's case. Accordingly, the risk of a premature announcement by the defence of some course of evidence could carry serious risks later in the trial. The court dismissed the application on the ground that the risks of acceding to the request exceeded any slight benefit it might afford.

Criminal Law - Topic 4404

Procedure - Opening and closing addresses - Summing up - Counsel - Opening address - Time for - See paragraphs 1 to 13.

Cases Noticed:

R. v. Vitale (1987), 40 C.C.C.(3d) 267 (Ont. Dist. Ct.), refd to. [para. 3].

R. v. Barrow (1989), 91 N.S.R.(2d) 176; 233 A.P.R. 176; 48 C.C.C.(3d) 308 (N.S.S.C.), refd to. [para. 3].

R. v. Dickhoff (K.J.) (1996), 147 Sask.R. 63 (Q.B.), refd to. [para. 4].

R. v. Slager (T.E.) (1996), 1 O.T.C. 78 (Gen. Div.), refd to. [para. 6].

R. v. Shergill (S.) (1997), 22 O.T.C. 239 (Gen. Div.), refd to. [para. 6].

R. v. Sood (V.P.) (1997), 58 O.T.C. 115 (Gen. Div.), refd to. [para. 6].

R. v. Roby, [1998] O.J. No. 5297 (Gen. Div.), refd to. [para. 6].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 651(2) [para. 2].

Counsel:

M. Minns and G. Barker, for the Crown;

D. Brodsky and J. Bliss, for the respondent.

This application was heard at Barrie, Ontario, on October 26, 1999, before Howden, J., of the Ontario Superior Court, who delivered the following ruling orally on October 26, 1999.

Please note: The following judgment has not been edited.