The appellant challenged the constitutionality of Criminal Code provisions requiring defence counsel to address the jury before the Crown where the defence called evidence.
In a second degree murder appeal involving expert evidence on whether the deceased died by suicide or strangulation, the appellant argued that the order of addresses infringed the rights to make full answer and defence and to a fair trial after the Crown relied on an inference not addressed in the defence closing.
The majority held that ss. 651(3) and (4) do not violate ss. 7 or 11(d) of the Charter because the accused answers the evidence and the Crown’s theory of the case, not the Crown’s final rhetoric, and the order of address is not shown to confer an inherent advantage.
The Court further held that trial judges may cure improper closings through jury instructions and, in the clearest cases of unfairness, may allow a limited reply.
