R. v. Rose (J.), (1998) 232 N.R. 83 (SCC)

• Judge: Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 25, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 232 N.R. 83 (SCC)

R. v. Rose (J.) (1998), 232 N.R. 83 (SCC)

MLB Headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1998] N.R. TBEd. NO.015

Jeffrey Rose (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, the Attorney General of Quebec, the Attorney General of British Columbia and the Attorney General for Alberta (interveners)

(25448)

Indexed As:   R. v. Rose (J.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin,

Iacobucci, Major, Bastarache and

Binnie, JJ.

November 26, 1998.

Summary:

An accused was convicted of second degree murder and sentenced to life impris­onment with no parole for 12 years. The accused appealed his conviction and sen­tence.

The Ontario Court of Appeal, Carthy and Laskin, JJ.A., dissenting, in a decision re­ported 90 O.A.C. 193, dismissed the appeal. The accused appealed the dismissal of his conviction appeal. At issue was whether s. 651(3) or 651(4) of the Criminal Code infringed s. 7 or 11(d) of the Charter, and, if so, was the infringement(s) saved by s. 1 of the Charter.

The Supreme Court of Canada, Lamer, C.J., McLachlin, Major and Binnie, JJ., dissenting, dismissed the appeal, holding that neither section infringed s. 7 or 11(d) of the Charter.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Fair hearing - What constitutes - Closing addresses - In discussing an accused's right to make full answer and defence under ss. 7 and 11(d) of the Charter, the Supreme Court of Canada stated that de­fending oneself did not intrinsically imply a tem­poral order of speaking with the accused "answering" the Crown's jury address with a jury address in reply - What was being answered in the accused's jury address was the evidence and the Crown's theory, both of which the accused would already know - The accused's jury address was an oppor­tunity to answer with argument and persua­sion - Persuasion was a subtle force, which could not be easily linked with any strict procedural rule regarding the order in which the parties were entitled to attempt to persuade the jury - See paragraph 42.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Fair hearing - What constitutes - Closing addresses - The Supreme Court of Canada held that the sections of the Criminal Code that required defence counsel to address the jury before Crown counsel (ss. 651(3) and 651(4)) did not infringe an accused's right to make full answer and defence under ss. 7 and 11(d) of the Charter - See paragraphs 30 to 45.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Fair hearing - What constitutes - Closing addresses - An accused was charged with second degree murder - In the closing jury address, Crown counsel emphasized a portion of a pathologist's testimony - Defence counsel had not referred to that portion in his closing address - The accused appealed his subsequent convic­tion, asserting that his addressing the jury first deprived him of the ability to respond to the Crown's statement's thereby breach­ing his ss. 7 and 11(d) Charter rights - The Supreme Court of Canada rejected the assertion - The defence was aware of the evidence and should have known from the nature of the Crown's cross-examination of the pathologist that the Crown viewed the existence of the evidence as relevant to the question of the accused's guilt - The de­fence's decision not to address the evi­dence was a tactical decision and not an unfairness imposed upon the accused by the Criminal Code - See paragraphs 48 to 49.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Fair hearing - What constitutes - Closing addresses - Section 651(3) of the Criminal Code entitled the Crown to address the jury last if the accused called a witness - Section 651(4) provided for the same order of address where two or more accused were tried jointly and any of the accused called a witness - An accused appealed his conviction, asserting that ss. 651(3) and 651(4) infringed upon the ss. 7 and 11(d) Charter right to procedural fairness - The accused asserted that the sections unfairly required an accused to choose between two constitutionally protected rights, namely the right to call and examine witnesses in one's own defence, and the right to make full answer and defence to the Crown's case - The Supreme Court of Canada held that there was no procedural unfairness in the manner in which the code ordered jury addresses - See paragraphs 52 to 53.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Fair hearing - What constitutes - Closing addresses - Section 651(3) of the Criminal Code entitled the Crown to address the jury last if the accused called a witness - Section 651(4) provided for the same order of address where two or more accused were tried jointly and any of the accused called a witness - An accused appealed his conviction, asserting that ss. 651(3) and 651(4) infringed upon his right to be pre­sumed innocent under ss. 7 and 11(d) of the Charter - The Supreme Court of Canada rejected the assertion - See para­graphs 54, 55.

Civil Rights - Topic 3126.1

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Onus - [See fifth Civil Rights - Topic 3126 ].

Civil Rights - Topic 3127

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to offer evidence - [See fourth Civil Rights - Topic 3126 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to make full answer and defence - [See first, second, third and fourth Civil Rights - Topic 3126 ].

Civil Rights - Topic 4943

Presumption of innocence - Evidence and proof - Burden of proof in criminal and quasi-criminal cases - [See fifth Civil Rights - Topic 3126 ].

Civil Rights - Topic 8581

Canadian Charter of Rights and Freedoms - Practice - General - The Supreme Court of Canada stated that Charter claims should be articulated under the more spe­cific legal rights guarantees where an alleged in­fringement falls squarely within a particu­lar provision." - See paragraph 29.

Criminal Law - Topic 4365

Procedure - Charge or directions to jury - Directions regarding expert evidence - An accused was charged with second degree murder - In the closing address to the jury, Crown counsel placed emphasis on a por­tion of a pathologist's testimony - Defence counsel had not referred to that portion of the testimony in his closing address - Following the trial judge's charge to jury, defence counsel requested the judge to review that portion of the pathologist's testimony - The trial judge refused the request - The accused appealed his convic­tion, asserting that he was unfairly disad­vantaged because of the unexpected em­phasis the Crown placed on the patholo­gist's testimony - The Supreme Court of Canada affirmed that the trial judge's failure to reference the pathologist's testi­mony did not amount to a miscarriage of justice - See paragraph 62.

Criminal Law - Topic 4388

Procedure - Charge or directions to jury - Directions re addresses by counsel - [See Criminal Law - Topic 4365 ].

Criminal Law - Topic 4388

Procedure - Charge or directions to jury - Directions re addresses by counsel - The Supreme Court of Canada stated that "... if a trial judge is of the opinion that an ir­regularity in counsel's address has jeopard­ized the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury. This should suffice in most cases. Second, if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, then in those relatively rare situations, the preju­diced party may be granted a limited op­portunity to reply. ..." - See paragraph 58.

Criminal Law - Topic 4388

Procedure - Charge or directions to jury - Directions re addresses by counsel - The Supreme Court of Canada stated that a trial judge is best able to assess the impact that improper remarks in a jury charge will have on a jury and to determine whether remedial steps are necessary - Where the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial could be ordered - When it is required, a trial judge has a duty to undertake in the jury charge to remedy any improper jury address - In so doing, the trial judge should deal in a fair and balanced fashion with both sides - The curative instructions should not indi­cate that the judge is favouring one party's argument, nor should they appear to engage in contentious argument with either party's jury address - See paragraphs 59 to 62.

Criminal Law - Topic 4420.03

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Re order of jury address - The Supreme Court of Canada stated that adopting the Law Reform Commission's recommenda­tions respecting the order of jury addresses in criminal cases or, alternatively, allowing the accused to elect whether to address the jury first or last, could be an improvement upon the existing legislation - See para­graph 51.

Criminal Law - Topic 4420.05

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reply - The Supreme Court of Canada stated that "... where the Crown is entitled to address the jury last pursuant to s. 651, the trial judge may grant defence counsel an opportunity to reply in those limited circumstances where the accused's ability to make a full answer and defence and his or her right to a fair trial have been preju­diced. ... such preju­dice may arise where the substantive legal theory of liability which the Crown has added or substituted in its closing has so dramatically changed that the accused could not reasonably have been expected to answer such an argument. It may also be appropriate to grant a reply where the accused is actually misled by the Crown as to the theory intended to be advanced. It is only in the clearest cases of unfairness that the trial judge should grant an opportunity to reply as an exercise of inherent juris­diction." - See paragraph 69.

Criminal Law - Topic 4420.05

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reply - [See second Criminal Law - Topic 4388 ].

Cases Noticed:

R. v. Tzimopoulos (1986), 17 O.A.C. 1; 29 C.C.C.(3d) 304 (C.A.), leave to appeal denied, [1987] 1 S.C.R. xv; 76 N.R. 80; 21 O.A.C. 319, refd to. [paras. 13, 90].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 28].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 28].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 70 C.C.C.(3d) 1; 88 D.L.R.(4th) 110, refd to. [para. 29].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [paras. 31, 108].

R. v. Dersch et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; 36 Q.A.C. 258; 60 C.C.C.(3d) 132, refd to. [paras. 32, 97].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 32].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193; 128 D.L.R.(4th) 98, refd to. [para. 32].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241; 88 C.C.C.(3d) 417; 112 D.L.R.(4th) 513; 28 C.R.(4th) 265; 20 C.R.R.(2d) 1, refd to. [para. 32].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 32].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241; 101 D.L.R.(4th) 654; 10 Admin. L.R.(2d) 1; 20 C.R.(4th) 34; 18 Imm. L.R.(2d) 245; 14 C.R.R.(2d) 1, refd to. [para. 32].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 32].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61; 29 C.C.C.(3d) 385; 33 D.L.R.(4th) 267, refd to. [para. 35].

Gray v. Alanco Developments Ltd., [1967] 1 O.R. 597 (C.A.), refd to. [para. 37].

Raysor v. State (1973), 272 So.2d 867 (Fla.), refd to. [para. 38].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 113 D.L.R.(4th) 461; 89 C.C.C.(3d) 289; 29 C.R.(4th) 209; 21 C.R.R.(2d) 1, refd to. [paras. 40, 75].

Pisani v. R., [1971] S.C.R. 738, refd to. [paras. 40, 80].

R. v. Munroe (R.A.) (1995), 79 O.A.C. 41; 96 C.C.C.(3d) 431 (Ont. C.A.), affd. [1995] 4 S.C.R. 53; 189 N.R. 87; 86 O.A.C. 384, refd to. [para. 40].

R. v. Neverson (S.) (1991), 42 Q.A.C. 16; 69 C.C.C.(3d) 80 (Que. C.A.), affd., [1992] 1 S.C.R. 1014; 140 N.R. 321; 50 Q.A.C. 241, refd to. [para. 40].

R. v. Charest (A.) (1990), 28 Q.A.C. 258; 57 C.C.C.(3d) 312 (Que. C.A.), refd to. [para. 40].

R. v. Hutchinson (R.) (1995), 141 N.S.R.(2d) 258; 403 A.P.R. 258; 99 C.C.C.(3d) 88 (C.A.), refd to. [para. 43].

R. v. F.G., [1995] M.J. No. 732 (C.A.), refd to. [para. 43].

R. v. Strebakowski (S.B.) (1997), 93 B.C.A.C. 139; 151 W.A.C. 139 (C.A.), refd to. [para. 43].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 9 C.R.(5th) 1, refd to. [para. 55].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32; 22 C.C.C.(3d) 449, refd to. [para. 60].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, refd to. [para. 60].

R. v. Michaud (F.), [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308, refd to. [para. 60].

R. v. Pouliot, [1993] 1 S.C.R. 456; 150 N.R. 146; 54 Q.A.C. 1, reving. (1992), 47 Q.A.C. 1 (C.A.), refd to. [para. 61].

R. v. Osborn, [1969] 1 O.R. 152 (C.A.), refd to. [para. 63].

Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497 (H.L.), refd to. [para. 63].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 65].

R. v. Young (1984), 3 O.A.C. 254; 46 O.R.(2d) 520 (C.A.), refd to. [para. 65].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 74].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 116 C.C.C.(3d) 193, refd to. [para. 75].

R. v. Nenadic (M.) et al. (1997), 88 B.C.A.C. 81; 144 W.A.C. 81, refd to. [para. 76].

College Housing Co-operative Ltd. and College Housing Inc. v. Baxter Student Housing Ltd. and Baxter (R.C.) Ltd., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 78].

R. v. Keating (1973), 11 C.C.C.(2d) 133 (Ont. C.A.), refd to. [para. 78].

R. v. Daly (1992), 57 O.A.C. 70 (C.A.), refd to. [para. 103].

R. v. Gardner, [1899] 1 Q.B. 150, refd to. [para. 104].

R. v. Coppen (1920), 33 C.C.C. 264 (Ont. C.A.), refd to. [para. 107].

R. v. Martin (1905), 9 C.C.C. 371 (Ont. C.A.), refd to. [para. 122].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 131].

Bailey v. State (1982), 440 A.2d 997 (Del. Supr. Ct.), refd to. [para. 132].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 651(3), sect. 651(4) [paras. 12, 25, 79].

Authors and Works Noticed:

Canada, Law Reform Commission, Report on the Jury (1982), p. 68 [paras. 50, 125].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 24 [para. 78]; 25, 27, 28 [para. 64].

Kaufman Report - see Ontario, Attorney General Report, The Commission Pro­ceedings Involving Guy Paul Morin (1998).

Lana, Robert E., Familiarity and the Order of Presentation Effects of Persuasive Communications (1961), 62 Abn. & Soc. Psychol. 573, generally [para. 44].

Lawson, Robert G., The Law of Primacy in the Criminal Courtroom (1969), 77 J. of Soc. Psychol. 121, generally [para. 44].

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vol. 1, pp. 118, 145, 147 [para. 110]; 151 [para. 111]; 118, 119 [para. 112]; 132 [para. 113]; 145 [para. 114].

Saks, Michael J., and Hastie, Reid, Social Psychology in Court (1978), p. 103 [para. 44].

Schultz, D.P., Primacy-Recency Within a Sensory Variation Framework (1963), 13 Psychol. Rec. 129, generally [para. 44].

Shakespeare, William, The Arden Edition of the Works of William Shakespeare (1955), Julius Caesar, Act III, Scene ii [para. 99].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 880 [para. 35].

Sopinka, John, The Many Faces of Advo­cacy, [1990] Adv. Soc. J. 3, p. 7 [para. 100].

Tanford, J. Alexander, An Introduction to Trial Law (1986), 51 Mo. L. Rev. 623, generally [para. 132].

Tanford, J. Alexander, Closing Argument Procedure (1986), 10 Am. J. Trial Adv. 47, p. 77 [para. 137].

Tanford, J. Alexander, The Trial Process: Law, Tactics and Ethics (1983), pp. 139 to 147 [para. 132].

United Kingdom, Criminal Law Revision Committee, Fourth Report, Order of Closing Speeches (July 29, 1963), Cmnd. 2148, p. 5 [para. 125].

White, Robert B., The Art of Trial (1993), p. 213 [para. 37].

Counsel:

Keith E. Wright and Ralph B. Steinberg, for the appellant;

Michael Bernstein, for the respondent;

Donna Valgardson and Nancy L. Irving, for the intervener, The Attorney General of Canada;

Jacques Gauvin, for the intervener, The Attorney General of Quebec;

Alexander Budlovsky, for the intervener, The Attorney General of British Colum­bia.;

Jack Watson, Q.C., written submission only, for the intervener, The Attorney General of Alberta.

Solicitors of Record:

Keith E. Wright, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervener, The Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervener, The Attorney General of Quebec;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, The Attorney General of British Columbia;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, The Attorney General of Alberta.

This appeal was heard on February 25, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada. The judgment of the court was delivered on November 26, 1998, in both official lan­guages, including the following opinions:

Cory, Iacobucci and Bastarache, JJ. (Gonthier, J., concurring) - see para­graphs 1 to 72;

L'Heureux-Dubé, J., concurring reasons - see paragraphs 73 to 81;

Binnie, J., dissenting (Lamer, C.J.C., McLachlin and Major, JJ., concurring) - see paragraphs 82 to 139.