R. v. Krause, [1986] 2 S.C.R. 466

Ian Barton Krause Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. krause

File No.: 18726.

1985: November 20; 1986: November 6.

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

on appeal from the court of appeal for british columbia

Evidence ‑‑ Rebuttal ‑‑ Principal issue of guilt or innocence ‑‑ Defence introducing evidence undermining police integrity ‑‑ Crown permitted rebuttal ‑‑ No prior inconsistent statements ‑‑ Whether or not rebuttal to impeach credit of witness permitted by s. 11 of Canada Evidence Act ‑‑ Whether or not other grounds for admitting rebuttal evidence ‑‑ Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 11.

Appellant was questioned by police about a fatal stabbing and charged with murder. At the trial, on a voir dire, the answers of the appellant were held to be voluntary. The Crown, made it clear that it did not intend to adduce the questions and answers in evidence‑in‑chief but that it would use them in cross‑examination if the need arose. When appellant testified on his own behalf he gave evidence not only with respect to the circumstances surrounding the murder but also with respect of his involvement with the police during the murder investigation. Crown counsel cross‑examined appellant about his statements to police and applied, pursuant to s. 11 of the Canada Evidence Act, to call rebuttal evidence at the end of the defence case. The rebuttal evidence was to impeach the credit of appellant. The trial judge allowed the application under s. 11 of the Canada Evidence Act. A majority of the Court of Appeal found that decision to be in error in its reliance on s. 11 of the Canada Evidence Act but supportable in law on other grounds. At issue is when, and in what circumstances, the Crown may be permitted to call evidence in rebuttal.

Held: The appeal should be allowed.

The trial judge erred in permitting the Crown to call evidence rebutting certain items of evidence, pursuant to s. 11 of the Canada Evidence Act, as no past inconsistent statement had been made in that regard. Rebuttal evidence could not be admitted on any other ground in law.

The evidence sought to be rebutted attacked police integrity but it did not touch on the question of guilt or innocence. It was therefore collateral and not the proper subject of rebuttal.

Cases Cited

Referred to: R. v. Bruno (1975), 1975 CanLII 1240 (ON CA), 27 C.C.C. (2d) 318; Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18; Attorney‑General v. Hitchcock, [1847] 1 Ex. 91, 154 E.R. 38; R. v. Cargill, [1913] 2 K.B. 271; R. v. Hrechuk (1951), 1950 CanLII 382 (MB CA), 58 Man. R. 489; R. v. Rafael, 1972 CanLII 640 (ON CA), [1972] 3 O.R. 238; Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361; R. v. Perry and Franks (1977), 1977 CanLII 2096 (ON CA), 36 C.C.C. (2d) 209.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 11.

Criminal Code, R.S.C. 1970, c. C‑34, s. 618(1)(a).

APPEAL from a judgment of the British Columbia Court of Appeal (1984), 1984 CanLII 639 (BC CA), 12 C.C.C. (3d) 392, dismissing an appeal from conviction by Legg J. sitting with jury. Appeal allowed.

John Green, for the appellant.

A. Stewart, for the respondent.

The judgment of the Court was delivered by

1. McIntyre J.‑‑This appeal deals with the question of when, and in what circumstances, the Crown may be permitted to call evidence in rebuttal of the evidence given by an accused person.

2. The appellant was charged with first degree murder of one Hutter on or about March 13, 1981. He was convicted of second degree murder on February 12, 1982 after a trial before a judge and jury. His conviction was upheld in the Court of Appeal on April 11, 1984 (Taggart, Craig JJ.A., Anderson J.A. dissenting). His appeal to this Court is under the provisions of s. 618(1)(a) of the Criminal Code, R.S.C. 1970, c. C‑34. The formal order of the Court of Appeal, which dismissed the appellant's appeal to that court, recorded the points of law upon which Anderson J.A. based his dissent, in these words:

i) that the learned trial Judge erred in admitting rebuttal evidence on collateral matters directed to the credit of the appellant;

ii) that the learned trial Judge failed to properly instruct the jury that allegations made by Crown Counsel during his cross‑examination of the appellant as to character, and in his address to the jury, were of no evidentiary value and that this failure to direct amounted to non‑direction in law; and

iii) that it was not possible to say that the verdict of the jury would necessarily have been the same had the errors described in i) and ii) above not been made and therefore, the curative provisions contained in section 613(1)(b)(iii) of the Criminal Code of Canada were not applicable.

3. The evidence revealed that the deceased Hutter had been attempting to arrange for the purchase of a pound or more of marijuana with the assistance of the appellant, who testified that he trafficked in narcotics. The deceased was in contact with the appellant on the afternoon of March 12, 1981. He was in possession of a car and some seven hundred and fifty dollars which had been provided by one Brian Hawe, a Crown witness. The deceased had been at the appellant's residence but had been unable to make a drug purchase. He returned to Hawe's residence about forty‑five minutes after leaving the appellant's home. The appellant advised Hutter that he would try to set up a drug deal for him, and Hutter returned to Duncan, British Columbia, where he lived.

4. On March 13, 1981, the day of the killing, Hutter returned to the Hawe residence about 10:30 a.m. He was there for a short time and then using Hawe's vehicle he left for the appellant's house. Before leaving, he was given $400 in cash in four one hundred dollar bills by Hawe towards the purchase of the pound of marijuana. Hutter arrived at the appellant's home shortly thereafter. He was there for a short time, then left at about 11:15 a.m., again with Hawe's vehicle.

5. At some time after his departure from the appellant's house and before 10:45 p.m. on March 13, 1981 Hutter was murdered. He was stabbed to death. His body was found partially covered by leaves on March 14, 1981. There was no money found on his body. The vehicle that Hutter had been driving was observed by an independent witness at the University of Victoria on March 13, 1981 at about 4:30 p.m. and was again observed in the same parking spot on March 15, 1981. The parking lot where the vehicle was found is approximately 1.8 kilometers from where the body was found.

6. The Crown case depended largely upon the evidence of one Molema. He gave evidence that he was in custody at the Vancouver Island Regional Correction Centre in Victoria in June, 1981. He received a number of visits from the appellant, whom he had known for seven or eight years. Molema's evidence was that during the course of these visits the appellant had told him he had killed Hutter. Molema was unable to recall dates and times and the exact words used in the conversation. He did recall that a knife was involved in "a stabbing sense". He also gave evidence that the encounter between the appellant and Hutter was over a drug deal and that the appellant had taken $400 to $700 from Hutter. Molema also admitted to a long criminal record.

7. The appellant gave evidence on his own behalf. He said that he got up early on March 13, 1981 and he received a telephone call shortly thereafter from Hutter asking if he could come down to see the appellant. The appellant agreed that he could come. The deceased duly arrived shortly after breakfast and asked where he could get any marijuana. There was some discussion about the scarcity of marijuana and the price of drugs. Hutter told the appellant that he had to return the vehicle he was driving to Hawe. The appellant asked Hutter for a ride. He wished to visit some friends who lived in the direction he thought Hutter was going. They left the appellant's residence in Hawe's car but when it became apparent that Hutter was not going in the direction the appellant had hoped, he got out of the car and continued his journey on foot. Hutter, according to the appellant, did not tell him where he was going. The appellant accounted for his whereabouts for the remainder of the day by saying that he reached his friend's apartment, that is, his destination, at about 11:15 or 11:30 a.m. The friend was absent. He then recalled that his appointment had been for 1:00 p.m. He went on foot to his bank where he deposited $100 in his account. The deposit was recorded by the bank's computer at 12:59 p.m. He then went to a nearby shopping centre where he made some purchases, then took a taxi to his friend's house and returned home later in the afternoon.

8. A Crown witness, one Macaulay, who was an admitted supplier of narcotics to the appellant, called at the appellant's residence at 4:30 p.m. on March 13 and the appellant paid him $600 or $700 in large bills. This was money owed on account. Later in the evening Crown witnesses placed the appellant at a local pub with a group of friends and later in a restaurant, where the appellant bought food for his friends and then went home by taxi.

9. I have gone into some detail on the facts above described in order to make clear the background against which the main point at issue, that of rebuttal evidence, arose. The trial lasted for some ten days. The first two days were taken up in a voir dire, which was conducted in order to determine the admissibility of certain statements made by the appellant to police officers in a series of conversations which took place during the investigation. The appellant was interviewed by police officers on March 26, March 31, April 1, April 6 and April 23. During these interviews or conversations he was questioned regarding the murder of Hutter and he gave answers which were largely exculpatory. These conversations were the subject of the voir dire. The answers made to the questions by the appellant were all held to be voluntary and were all held to be admissible. The Crown, however, had made it clear to all parties that it did not intend to adduce the questions and answers in evidence‑in‑chief, but would use them in cross‑examination if the need arose. It is the rebuttal evidence led by the Crown to rebut answers given by the accused in such cross‑examination and statements made by the accused during his direct examination which raise the principal issue in this case.

10. The appellant, in addition to giving the evidence summarized earlier, also gave evidence of his involvement with the police during the investigation of the murder. The points of significance for our purposes in this case may be summarized, as follows:

11. He swore that:

1. It seemed to be a regular thing for the police to come and ‘grab’ him and take him down to the Station.

2. The police had suggested to him that if he did not tell them where he had sent Hutter to look for marijuana, they were going to "kick in the doors" of known drug dealers and tell them that the appellant sent Hutter there looking for marijuana.

3. The police showed him a photograph of the deceased when they first interviewed him on March 26, 1981.

4. He had not told the police officers that he had never dealt with Hutter in a dope deal, but rather that the statement was taken out of context and that he had told them that he had never dealt with Hutter prior to January, 1981.

In cross‑examination the appellant was questioned extensively regarding his statements to the police. It was put to him that he had told the officers that he had never dealt with Hutter in a dope deal when he had told him where to go.

12. At the close of the defence case the Crown applied to call rebuttal evidence, pursuant to s. 11 of the Canada Evidence Act, R.S.C. 1970, c. E‑10. The Crown was relying solely on s. 11 for this application and sought to use the rebuttal evidence solely for the purpose of impeaching the credit of the appellant. The trial judge granted the Crown's motion and allowed the calling of evidence in rebuttal in these words:

Thank you. My ruling is that the Crown should have leave to call the rebuttal evidence that has been outlined, dealing with the statement previously made or alleged to have been made by the accused man. In my view the Crown is permitted to lead this evidence under section 11 of the Canada Evidence Act.

13. In the Court of Appeal the majority were of the opinion that the trial judge had been in error in his application of s. 11 of the Canada Evidence Act, which he relied on in allowing the Crown to call the rebuttal evidence. The four points upon which the rebuttal evidence was permitted have been enumerated above. Of these points, items 1, 2 and 3 did not involve any past inconsistent statements on the part of the appellant. All of the judges of the Court of Appeal were in agreement that s. 11 could not apply to the first three items and that it was an error on the part of the trial judge to permit the calling of rebuttal evidence in respect of them. The majority, however, were of the view that rebuttal on items 1, 2 and 3 was supportable on another ground, that of relevance on the question of guilt or innocence, and that while the trial judge had misapplied s. 11 of the Canada Evidence Act on the question, the rebuttal evidence was nonetheless admissible and no error in law occurred. It was not contended that any error occurred in the application of s. 11 to the fourth item and no issue arises respecting that item. Anderson J.A., in dissent, was of the view that the rebuttal evidence did not go to issues relevant to the guilt or innocence of the appellant, but were merely collateral. Therefore, while cross‑examination of the appellant by counsel for the Crown upon those items was proper, the Crown was bound by the answers given and was not entitled to call evidence to rebut the answers given in such cross‑examination.

14. The first ground, as set out in the formal order of the Court of Appeal, and by far the most important in this case, alleges error on the part of the trial judge in permitting the Crown to call evidence in rebuttal of the appellant's testimony after the conclusion of the defence case.

15. At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: see R. v. Bruno (1975), 1975 CanLII 1240 (ON CA), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.), per Schroeder J.A., at pp. 21‑22. This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence‑‑as much as it deemed necessary at the outset‑‑then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response.

16. The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, 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. But rebuttal will not be 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. It will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.

17. In the cross‑examination of witnesses essentially the same principles apply. Crown counsel in cross‑examining an 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. 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 (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e. it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, 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. An early expression of this proposition is to be found in Attorney‑General v. Hitchcock, [1847] 1 Ex. 91, 154 E.R. 38, and examples of the application of the principle may be found in R. v. Cargill, [1913] 2 K.B. 271 (Ct. Crim. App.); R. v. Hrechuk (1951), 1950 CanLII 382 (MB CA), 58 Man. R. 489 (C.A.); R. v. Rafael, 1972 CanLII 640 (ON CA), [1972] 3 O.R. 238 (Ont. C.A.); and Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361. This is known as the rule against rebuttal on collateral issues. Where it applies, Crown counsel may cross‑examine the accused on the matters raised, but the Crown is bound by the answers given. This is not to say that the Crown or the trier of fact is bound to accept the answers as true. The answer is binding or final only in the sense that rebuttal evidence may not be called in contradiction. It follows then that the principal issue which arises on this branch of the case is whether the issues arising out of items 1, 2 and 3 are collateral in the sense described or relevant as going to a determinative issue in the case.

18. The Crown's application to call rebuttal evidence was made under s. 11 of the Canada Evidence Act, which provides:

11. Where a witness upon cross‑examination as to a former statement made by him relative to the subject‑matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make such statement.

I am in full agreement with the judges of the Court of Appeal that s. 11 could have no application to items 1, 2 and 3, no past inconsistent statement having been made regarding those items by the appellant. As has been noted, there was no error in this respect regarding item 4. We are then only concerned with items 1, 2 and 3. In dealing with these items, the first question is: Did other grounds exist which would justify the admission of the rebuttal evidence? Craig J.A., in the Court of Appeal, considered such other grounds did exist. He was of the view that the issues arising from items 1, 2 and 3 were not collateral issues but were relevant. Therefore, Crown evidence by rebuttal was admissible. He said, in R. v. Krause (1984), 1984 CanLII 639 (BC CA), 12 C.C.C. (3d) 392 (B.C.C.A.), at p. 405:

One sometimes reads, or hears, a statement that credibility is a collateral issue. This is misleading. Credibility may be a secondary issue in a particular case, the primary issue being whether the Crown is able to establish the guilt of the accused beyond a reasonable doubt, but it is always an underlying issue. Evidence of the former words and conduct of a witness which is unrelated to the circumstances in issue is inadmissible either because it is immaterial or because it is irrelevant. It is collateral in both senses of the word. To the extent, however, that the former words and conduct of a witness may bear on his credibility in the case before the court, he may be questioned about them, but his answers may not be contradicted because to permit such a contradiction would cause confusion of issues, surprise and unfair prejudice. On the other hand, a person's words and conduct in relation to the case before the court are not collateral. They are very relevant. In this case, the main fact in issue was whether Krause had killed Barry Hutter on or about March 13th. The Crown adduced evidence to prove that he had killed Hutter. Krause denied that he killed Hutter. His words and actions pertaining to the circumstances of this case were relevant to the main fact in issue and, also, to Krause's credibility.

Taggart J.A. was essentially in agreement with Craig J.A. Anderson J.A., dissenting, considered that the issues dealt with in rebuttal were collateral and, accordingly, not the proper subject of rebuttal evidence.

19. It will be seen that there was no disagreement between the majority and the minority in the Court of Appeal with respect to the law which should be applied on this point. The sole point of departure was the differing view on the nature of the issues raised by items 1, 2 and 3. The majority found the issues relevant and material to the determination of the principal issue of guilt or innocence. The dissent found them limited only to the collateral issue of credibility.

20. There was one principal issue raised in this case, that is, did the appellant kill Hutter or did he not? Evidence bearing on that issue would be clearly material and admissible and in no way collateral. The evidence in respect of which rebuttal was allowed dealt in item 1 with the appellant's assertion that the police harassed him before his arrest. He said it seemed to be a regular thing for the police to come and `grab' him and take him down to the station. Item 2 dealt with further harassing and intimidating conduct on the part of the police, an alleged threat to put pressure on other drug dealers, telling them that the appellant had sent Hutter to them to get marijuana. Item 3 dealt with an allegation that during the course of the investigation the police had shown the appellant a gory photograph of Hutter's body. Were the points so raised material and relevant in deciding the issue‑‑did the appellant kill Hutter?

21. It should be observed that the Crown chose in this case to proceed without making the accused's out‑of‑court statements part of its case. To establish guilt, the Crown relied on the evidence of one Molema and one Macaulay, whose evidence has been referred to above, and on various other witnesses who developed the Crown's case against the appellant. The Crown in closing its case was doing so without any police evidence regarding the statements or conversations between the police and the appellant. Although the admissibility of the conversations had been established in the voir dire, they were not read in evidence in the Crown's case. It seems clear that‑‑at least up to the time when the Crown closed its case‑‑it did not consider the evidence relevant to that issue. It may be suggested, however, that the evidence given by the accused at trial made the police version of the conversations relevant. This, however, is a conclusion I cannot reach. The evidence of the appellant reflected on the integrity of the police‑‑though not on that of any police witness who gave evidence as part of the Crown's case‑in‑chief‑‑but it did not touch upon the question of guilt or innocence. I am unable to say that the rebuttal evidence, which merely answered allegations made by the appellant and did not touch questions relating to his guilt or innocence, was relevant on that issue. The fact that evidence is introduced by the defence‑in‑chief does not make it a proper subject for rebuttal evidence unless it is otherwise relevant to a matter other than credibility: see Cargill, supra, and Hretchuk, supra. In my view, in agreement with Anderson J.A. in his dissent, the issues made the subject of rebuttal were collateral, as being neither material nor relevant on the issue of guilt or innocence. The Crown was entitled to cross‑examine and did cross‑examine the appellant on this matter. The Crown, however, was bound by the answers and was not entitled to call evidence in rebuttal. A somewhat similar case is to be found in the case of R. v. Perry and Franks (1977), 1977 CanLII 2096 (ON CA), 36 C.C.C. (2d) 209 (Ont. C.A.) I adopt here the approach taken in that case by Dubin J.A. If the evidence of what passed between the police and the appellant during the investigation was relevant and material, it should have been introduced in chief. To allow it to be introduced by rebuttal evidence would be to allow the Crown to split its case. If, on the other hand, it was not relevant and material, and did not become relevant and material to the question of guilt or innocence or to a defence, (for example, an alibi arising for the first time during the accused's case‑in‑chief), no rebuttal evidence should have been permitted. I would therefore resolve this issue against the Crown, holding that it was error on the part of the trial judge to permit the Crown to call evidence in rebuttal under s. 11 of the Canada Evidence Act and that the allowance of rebuttal evidence could not be supported on any other ground in law. I would allow the appeal and direct a new trial, In view of my disposition of this issue, it is unnecessary to deal with the remaining points.

Appeal allowed.

Solicitors for the appellant: Turnham, Green & Co., Victoria.

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