R. v. Aalders, [1993] 2 S.C.R. 482

Gifford Aalders Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Aalders

File No.: 22617.

1993: March 3; 1993: June 10.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Evidence ‑‑ Rebuttal evidence ‑‑ Rebuttal evidence relating to issue essential for determination of case ‑‑ Whether rebuttal evidence admissible.

Criminal law ‑‑ Murder ‑‑ First degree murder ‑‑ Planned and deliberate ‑‑ Charge to jury ‑‑ Whether trial judge's directions on planning and deliberation adequate.

Criminal law ‑‑ Charge to jury ‑‑ Alternative verdict ‑‑ Murder ‑‑ Accused charged with first degree murder testifying that he did not intend to kill victim ‑‑ Evidence as a whole showing that killing was planned and deliberate ‑‑ Whether trial judge erred in failing to instruct jury on manslaughter.

The accused was charged with first degree murder of an acquaintance. He broke into the victim's home early one morning and went to the basement, where he took and loaded a 30.30 rifle, which he used to kill the victim's dog. The accused, who was a frequent visitor to the house, was aware that no one would be there until the victim returned sometime around noon. He started ransacking the house, found a .32 calibre pistol, loaded it with ammunition and placed it in his belt. Later, he gathered together everything he had stolen and placed it by the back door. When the victim returned home for lunch, the accused was still in the house. The victim saw his slain dog and turned back towards the bathroom, where the accused was hiding. The accused came out of the tub and fired the gun. Eight bullets entered the victim's body. Only one was in the area of the legs; the rest were in the torso and neck. After the shooting, the accused took the victim's money and his car keys, placed the stolen goods in the victim's car and drove away. The accused was arrested three days later. In his statement to the police, he stated that he had gone to the victim's house to break in and admitted that he had stolen money from the victim and from the residence. At trial, however, he testified that he had gone there only to ask a favour from the victim. He had then entered the house because of the heavy rain and, once inside, had decided to steal. He also testified that he had aimed the gun at the victim's legs and that he had not intended to kill him but was only trying to escape. In cross‑examination, the accused testified that the money which was found in his possession when he was arrested came in part from his welfare allowance. The Crown was allowed to adduce rebuttal evidence on this issue and two welfare workers testified that the accused had never received social assistance, and that his applications for welfare had been refused. In his charge, the trial judge told the jury that if they were satisfied beyond a reasonable doubt that the accused intended to kill the victim and that the killing was planned and deliberate, they should find him guilty of first degree murder. The trial judge explained that the expression "planned and deliberate" meant a "carefully thought out design which precedes the carrying out of an unlawful act. It is the commission of an unlawful act after having thought about it. In other words, . . . it is a planned and desired act". The trial judge also instructed the jury on second degree murder but not on manslaughter. The accused was convicted of first degree murder and the majority of the Court of Appeal affirmed the conviction. This appeal raised three issues: (1) whether the trial judge erred in permitting the Crown to adduce rebuttal evidence; (2) whether the trial judge adequately charged the jury on the "planned and deliberate" nature of first degree murder; and (3) whether the trial judge should have instructed the jury that manslaughter was an alternative verdict.

Held (Sopinka J. dissenting): The appeal should be dismissed.

Per La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: The crucial question with regard to the admission of rebuttal evidence is not whether the evidence which the Crown seeks to adduce is determinative of an essential issue, but rather whether it is related to an essential issue which may be determinative of the case. If the rebuttal evidence goes to an essential element of the case and the Crown could not have foreseen that such evidence would be necessary, then it is generally admissible. Thus, if a statement is made during the course of a witness's testimony at trial which conflicts with other evidence relating to an essential issue in the case, rebuttal evidence will be permitted to resolve the conflict. Here, the rebuttal evidence was admissible. The evidence of the welfare workers goes to an integral element of the case and the Crown could not have foreseen that the accused would testify as he did in light of his earlier statement. The bald admission of the robbery in the course of evidence, which falsely coloured its nature and changed important details, cannot result in a finding that the rebuttal evidence thereby goes solely to collateral issues. Evidence as to the details of the robbery formed an integral part of the Crown's case and it was important that any confusion with regard to the accused's statement and testimony on this essential issue be clarified. This could only be done by way of reply. It cannot then be said that the rebuttal evidence constituted a splitting of the Crown's case.

When the charge is read as a whole, it is apparent that the jury was properly instructed on the issue of planning and deliberation. The trial judge's directions were quite clear that these concepts were two distinct elements of the crime of first degree murder, both of which had to be established beyond a reasonable doubt.

The trial judge did not err in not putting manslaughter to the jury. The killing in this case has every indication of being a cold-blooded, planned and deliberate execution. There was no air of reality to the accused's defence of manslaughter. It follows that it would not have been appropriate to have left manslaughter to the jury.

Per Sopinka J. (dissenting): The trial judge erred in permitting the Crown to adduce the rebuttal evidence. The rebuttal evidence was not relevant to the accused's assertion that he did not intend to kill the victim, and it was wholly unnecessary to prove the robbery, as this had been admitted by the accused's own testimony. While the Crown had the right to cross‑examine the accused on collateral facts, in order to attack his credibility, having done so the Crown had to take the accused's answers. Put in context, the rebuttal evidence attacked the accused's credibility on the sole question of whether he was a recipient of social assistance, a collateral issue which was raised for the first time in cross‑examination. The Crown also argued that the accused made his credibility a central issue by giving testimony which differed from his police statement.

In any case where the accused testifies, his credibility will be on the line. Allowing rebuttal evidence simply because the accused has chosen to make his credibility an issue is far too broad an interpretation of Krause.

An error of this nature cannot be cured by application of the proviso in s. 686(1)(b)(iii) of the Criminal Code.

Cases Cited

By Cory J.

Considered: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466; distinguished: Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361; referred to: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074; R. v. Widdifield (1963), 6 Crim. L.Q. 152; Pilon v. The Queen (1965), 1965 CanLII 719 (QC CA), 46 C.R. 272, [1966] 2 C.C.C. 53; More v. The Queen, 1963 CanLII 79 (SCC), [1963] S.C.R. 522; McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484; R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471; John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476; R. v. Perry (1977), 1977 CanLII 2096 (ON CA), 36 C.C.C. (2d) 209; Lampard v. The Queen, 1969 CanLII 695 (SCC), [1969] S.C.R. 373; Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120; R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265.

By Sopinka J. (dissenting)

R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466; John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 229(a), 230(d) [am. c. 27 (1st Supp.), s. 40(2) (Sch. I, item 2)], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch. item 8)].

Authors Cited

McCormick, Charles Tilford. McCormick on Evidence, vol. 1, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing Co., 1992.

APPEAL from a judgment of the Quebec Court of Appeal, 1991 CanLII 3031 (QC CA), [1991] R.J.Q. 2097, 39 Q.A.C. 175, 69 C.C.C. (3d) 154, dismissing the accused's appeal from his conviction on a charge of first degree murder. Appeal dismissed, Sopinka J. dissenting.

Gervais Labrecque, for the appellant.

Georges Letendre, for the respondent.

//Cory J.//

The judgment of La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by

Cory J. -- Two main issues are raised on this appeal. The first is whether the trial judge erred in permitting the Crown to call evidence in reply. The second, turns on the adequacy of the instructions given to the jury on the critical aspects of first degree murder, namely planning and deliberation.

I. Factual Background

On January 20, 1986, the appellant Aalders, shot and killed Lawrence Ford in his home in St. Basile. Earlier that morning, Aalders had arranged with a friend to get a lift to the Ford home. His friend left him off some distance from the house. Aalders was a frequent visitor and was well aware of the family routine. He knew when he arrived at 8:00 a.m. of a weekday morning that nobody would be home. He was aware that no one would be there until Mr. Ford returned to the house sometime around noon. The appellant tried the front door but received no response. He then went around to the back door and by means of a screwdriver that he had fortuitously brought with him, broke into the house. As soon as he gained entrance, he immediately went to the basement where he took and loaded a 30.30 rifle. He then returned to the main floor. When he had descended to the basement the family dog, Tuppy, loyally attempting to defend the family home, started barking and continued to do so. Upon his return to the main floor, Aalders entered the bedroom where the dog was barking. There, he shot and killed him.

With the dog silenced, the appellant started ransacking the house. He went first to the master bedroom and searched the drawers of the night tables and dressers by emptying their contents onto the floor. He found a .32 calibre pistol which was not loaded. He then located the clip for the pistol with two bullets in it. He continued to look for more ammunition for the pistol and finally shot the lock off a chest in the basement where he found the ammunition. In his statement to the police, Aalders said that he loaded the .32 pistol because it was not as heavy and cumbersome as the 30.30 rifle. He placed the loaded pistol in his belt before running back upstairs. He did this he said, in case anyone should come into the house as he did not want to get caught.

While looking for ammunition in the closets of the house Aalders had discovered jars full of money. Thus, after finding and loading the pistol, he returned to the bedroom and took the jars down from the closets in the master bedroom. He then went to the bedroom of Laura Jane Ford, the daughter of the victim, where he found some more money which he also took. He then went back downstairs and located several bags into which he put the money and the other weapons (the shotguns and the rifle) which he had found in the house. For nourishment he took three bottles of wine which he placed in portable bars and two bags of cookies.

Some of the money which was taken from the Ford residence consisted of old Canadian and American bills which the victim and his daughter had collected. The total weight of all the items seized from the house was 190 lbs. Aalders placed all this material on the floor beside the door by which he had gained entry. He stated that he intended to conceal the material in the woods near the home so that he could return and collect it later. Another inference which could be drawn was that the robbery had been carefully planned to take place while the house was empty, that Aalders required a car to carry the stolen property and that he was armed and awaiting the return of Mr. Ford in his car around noon.

In any event, the appellant testified that he went back upstairs and when he was in the bathroom he heard the sound of a door closing downstairs. With that he became aware that someone else was in the house. He stepped into the bathtub and drew the pistol from his belt. Aalders saw a shadow pass across the bathroom doorway and then the reflection of a man's back appeared in the bathroom mirror. The man was standing in the master bedroom where the appellant had shot the family pet. When he saw the person in the bedroom turn around the appellant advanced from the bathroom towards the bedroom with the gun in his hand. He said also in his evidence at trial that he pointed the gun at the legs of the person in the room, closed his eyes and pressed the trigger. He stated that he only wanted to escape from the house and that he had not meant to kill the victim. However, it is of some significance that in his lengthy statement to the police, Aalders did not mention that he aimed the gun at the victim's legs or that he had only been trying to escape. The autopsy revealed that of the eight bullets that were fired into Ford's body, only one was located in the leg area while the majority were in the torso and neck area.

After he shot the victim, Aalders left the room and went out to Lawrence Ford's car. When he saw that the keys were not in the car, he went back into the home and looked through Ford's pockets until he found them. He took the keys and $50 to $60 which he found in the victim's wallet. The appellant then took all the stolen goods, including the rifle, shotguns and wine placed them in the trunk of the car and drove away. He was arrested three days later in Charlesbourg.

II. The Courts Below

1. The Trial Judge's Charge to the Jury

The trial judge explained to the jury that, according to the general rule, murder requires an intention to kill according to the definitions set out in s. 212(a)(i) and (ii) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 229 (a)(i) and (ii)). He advised the jury that they must first consider whether the appellant had the intention to kill according to that general rule. If so, they must then consider whether this intention involved planning and deliberation. The trial judge stated that if they were satisfied beyond a reasonable doubt that the appellant intended to kill the victim and that the killing was planned and deliberate, then they should find him guilty of first degree murder. However, if they found that he intended to kill the victim, but they had a reasonable doubt that the killing was planned and deliberate, then they should find him guilty of second degree murder.

The trial judge provided the jury members with a written statement of the elements of the crime of first degree murder. The statement read as follows:

[translation] In this case the prosecution had the burden of proving, beyond a reasonable doubt, the following constituent elements:

1. That the accused, Gifford Aalders, on or about January 20, 1986, at Portneuf Station, District of Québec;

2. unlawfully caused the death of Lawrence Ford;

3. with the intent to cause his death or to cause him bodily harm that he knew was likely to cause his death and was reckless whether his death ensued or not;

4. and he did this with planning and deliberation.

The trial judge pointed out to the jury that if they struck out paragraph 4 in the above statement they would have a list of the elements of second degree murder.

In explaining the meaning of the term [TRANSLATION] "planned and deliberate", the trial judge stated:

[TRANSLATION] In criminal law, this expression means the carefully thought out design which precedes the carrying out of an unlawful act. It is the commission of an unlawful act after having thought about it.

In other words, one can summarize it by saying: it is a planned and desired act. The person therefore commits a crime with planning and deliberation when he planned it, when he foresaw this eventuality and when he prepared for it accordingly, with full knowledge of it. In other words, it was prepared.

The trial judge then moved to a consideration of the exception under s. 213(d) (now s. 230(d)) of the Code. He told the jury that if they had a reasonable doubt about the accused's intention to kill according to the general rule, they should then consider the exception of s. 213(d). If they found the accused intended to commit robbery and caused the death of the victim in the commission of the robbery, they should find him guilty of second degree murder. The trial judge also gave the jury a list of the elements of constructive murder under s. 213(d) of the Code. He instructed the jury that if they had a doubt that the accused intended to kill the victim, that it was planned and deliberate or that the elements of s. 213(d) were present, they should acquit the accused.

In response to a question from the jury on premeditation, the trial judge stated:

[translation] I will therefore begin by again explaining the meaning of the expression "planned and deliberate" which can be summarized by the word "planned" or the word "planning".

Often instead of always using the full expression "planned and deliberate", it is summarized by saying "planned, prepared in advance, having thought about it in advance, having thought about something in advance", and that's about it for planning.

He also stated:

[translation] In criminal law, then, the expression "planned and deliberate" means the carefully thought out design which precedes the carrying out of an unlawful act. So it is the commission of an unlawful act after having thought about it. It is an act which is planned and desired.

In the result, the jury found the appellant guilty of first degree murder.

2. Court of Appeal

The appellant raised four grounds of appeal: the admissibility of his statement to police, the trial judge's charge on first degree murder, the trial judge's failure to instruct on manslaughter and the admissibility of the Crown's rebuttal evidence. The Court of Appeal was unanimous as to the admissibility of the statement, but Proulx J.A. dissented on the other three grounds: 1991 CanLII 3031 (QC CA), [1991] R.J.Q. 2097, 69 C.C.C. (3d) 154. (The appellant sought leave to appeal to this Court on the admissibility of the statement but the application was dismissed on February 6, 1992, [1992] 1 S.C.R. v.)

(a) Proulx J.A. (dissenting)

Proulx J.A. would have allowed the appeal and ordered a new trial.

(i) Planning and Deliberation

Proulx J.A. held that the charge to the jury failed to distinguish between planning and deliberation. He stated that the two elements are distinct and must coexist to support a conviction for first degree murder: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, and R. v. Widdifield (1963), 6 Crim. L.Q. 152 (Ont. H.C.). Proulx J.A. stated (at p. 177 C.C.C.):

[translation] While "planned" is understood in the sense of a calculated scheme, the nature and consequences of which have been considered and weighed, it is still necessary that the accused, by his deliberation, consider what he has planned, that is, that he take the time to think about the effect of the act that he proposes to do.

For Proulx J.A., "deliberate" or "propos délibéré" had to do with considered reflection once a plan has been formed. He wrote: [TRANSLATION] "the process of deliberation requires that the accused, as I pointed out, take the time to reflect on it". Proulx J.A. also adopted the following statement from Pilon v. The Queen (1965), 1965 CanLII 719 (QC CA), 46 C.R. 272, [1966] 2 C.C.C. 53 (Que. Q.B.), at p. 69 C.C.C.:

[translation] . . . the deliberate act [is] one proceeding from an intention and an intelligence which knows the nature and quality of the criminal act.

Citing the cases of More v. The Queen, 1963 CanLII 79 (SCC), [1963] S.C.R. 522, McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, and R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, as authority, Proulx J.A. determined that it is possible for a murder to be planned but not deliberate, or deliberate but not planned. Thus, in his view, if the murder was planned but the final act was prompted by a sudden impulse rather than consideration, it would not be deliberate.

Furthermore, Proulx J.A. thought that if the murder took place as part of another offence, it was essential, in the charge to the jury, to avoid any confusion between the planning and deliberation required for the other offence, and planning and deliberation required for first degree murder.

Considering the whole of the charge to the jury, Proulx J.A. concluded that the trial judge failed to make these distinctions. The charge implied that "deliberate" was subsumed in the notion of "planned". Proulx J.A. stated: [TRANSLATION] "the trial judge ... only really submitted a single question to the jury, that is: was the murder planned, desired, premeditated?" (p. 182 C.C.C.). He also noted that the trial judge never defined "deliberate".

Proulx J.A. found as well that the charge was not clear on the difference between the intention to kill, and the further intention required for first degree murder. In his view by stating that [TRANSLATION] "a planned murder is a desired or even prepared murder" (p. 183 C.C.C.) the trial judge failed to distinguish between a premeditated killing and an intentional killing.

Proulx J.A. thought that if the jury was properly instructed the verdict would not necessarily be the same in this case as the evidence left important questions unanswered. For example, did the appellant plan the murder? Did he deliberate? In Proulx J.A.'s opinion, the answers to these questions must be left to a properly instructed jury.

(ii) The Rebuttal Evidence

Applying the principles set out in R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, Proulx J.A. held that the Crown's rebuttal evidence was not admissible, since it only went to a collateral issue. In his view, it was not enough that the evidence be relevant; it had to be important or essential.

Proulx J.A. noted that the appellant did not raise new facts in his testimony. Rather, in his cross-examination, the respondent introduced the idea that the money which was found on the appellant when he was arrested came from his welfare allowance. The origins of the money was a proper question going to recent possession of stolen property. However, Proulx J.A. held that since the appellant had already admitted that he had stolen money from the victim's person and from the residence the testimony of the social services people was in no way essential. In his opinion, the rebuttal evidence went only to the credibility of the appellant, and even though credibility was in issue, this did not make rebuttal evidence on a collateral point admissible: Krause, supra; John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476; Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361, and R. v. Perry (1977), 1977 CanLII 2096 (ON CA), 36 C.C.C. (2d) 209 (Ont. C.A.).

(iii) Manslaughter

Proulx J.A. held that the trial judge erred in not allowing the issue of manslaughter to be put to the jury. In testimony, the appellant stated that he did not intend to kill the victim. Thus, since his intent to kill was an issue, Proulx J.A. thought that manslaughter should have gone to the jury. He stated that the trial judge had an obligation to address all defences that arose on the evidence: Lampard v. The Queen, 1969 CanLII 695 (SCC), [1969] S.C.R. 373, and Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592.

(b) Chouinard J.A. (concurring with Tourigny J.A.)

(i) Planning and Deliberation

In light of the evidence that the appellant knew the victim's daily routine of coming home for lunch, the appellant's confession and his seizure of firearms as soon as he broke in, Chouinard J.A. found that the defence theory (of surprise and panic at the arrival of the victim) lacked credibility. He stated: [TRANSLATION] "Accordingly, the verdict of first degree murder rendered by the jury seems reasonable, in accordance with the verdict that a properly instructed jury would have rendered in a similar case" (p. 158 C.C.C.).

While agreeing that a premeditated crime could still be committed without deliberation, Chouinard J.A. disagreed with Proulx J.A. that this was an issue in the present case. The appellant waited some four hours for the victim to come home, then shot him eight times. The Crown's theory was of long preparation and cold, lucid execution of the plan. Chouinard J.A. thought that this was a reasonable inference to be drawn from the evidence and that it was irreconcilable with fear, surprise and sudden impulse. The jury obviously rejected the latter theory. Furthermore, Chouinard J.A. decided that when read as a whole, the charge to the jury clearly distinguished the notions of planning and deliberation.

(ii) The Rebuttal Evidence

Chouinard J.A. held that the recent possession of the car and the victim's possessions and money at the time of arrest made the origins of these things an important issue even if the theft itself was not contested by the accused.

(c) Tourigny J.A.

(i) The Rebuttal Evidence

Tourigny J.A. thought that in the context of the appellant's claims about the origin of the money, the rebuttal evidence was admissible. The facts here differed from Krause, supra, where there was no evidence of a statement to police, the contradictions only arose in cross-examination and where the credibility of Krause went to a collateral point only. Here, credibility was not incidental; it was essential, going to mens rea. Tourigny J.A. held that the evidence of the social services people could not have been given in the Crown's case, as the Crown could not have foreseen that the appellant would change his story.

Tourigny J.A. thought that this case was also different from Latour, supra, where the accused made an alibi defence stating that he had never been to the place in question. The Crown brought rebuttal evidence that the accused had been seen at the location some three months after the crime. In that case, the attack on credibility was collateral. Here, in Tourigny J.A.'s opinion, the appellant made his credibility a central issue by changing his story on his intention to steal and intention to kill.

(ii) Manslaughter

Tourigny J.A. held that the trial judge did not err in not putting manslaughter to the jury as, in her opinion, there was nothing in the evidence to support such a conviction. In any event, the jury decided that it was not second degree murder, nor constructive murder, but rather, first degree murder. Tourigny J.A. thought that this verdict was reasonable, as long as the charge on first degree murder was adequate.

(iii) Planning and Deliberation

Tourigny J.A. cited passages from the charge and also reproduced a document that the trial judge had given to the jury. This document set out the elements of the offence, and referred to planning and deliberation as necessary to first degree murder. Tourigny J.A. concluded (at p. 174 C.C.C.):

[translation] For my part, [I have to say] I find no error in the instructions given by the judge. Of course, as I previously said, he did not each time repeat the exact words but it appears to me however that, in light of the comments that he made and the references made to the document he had distributed, the jury could not have been led to understand anything else than that it was necessary to find the presence beyond a reasonable doubt of all the constituent elements of first degree murder, including "planning and deliberation".

III. Points in Issue

1. Did the trial judge err in permitting rebuttal evidence to be led by the Crown concerning whether the appellant had been receiving social assistance?

2. Was the trial judge's charge to the jury adequate with regard to the planned and deliberate nature of first degree murder?

3. Was the trial judge's charge to the jury insufficient in that he failed to put the possibility of a conviction of manslaughter to them?

IV. Analysis

1. The Rebuttal Evidence

In Krause, supra, this Court set out the principles governing the introduction of rebuttal evidence. The general rule is that 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 wide latitude in cross-examination which enables them to test and question the testimony of the witnesses and their credibility. However, where the questions asked by Crown counsel are not relevant to an issue essential for the determination of the case, the Crown is bound by the answers given and cannot present evidence in rebuttal to challenge the statements made by the witness. The reason for this rule was stated by McIntyre J. in Krause at pp. 473-74 in the following words:

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.

However, an exception to this rule is made when the defence has raised some new matter or a defence which the Crown has had no opportunity to deal with in presenting its case and which the Crown could not reasonably have anticipated. McIntyre J. expressed the following caveat to the exception on p. 474:

... 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.

He added the following comments regarding the rule against rebuttal on collateral issues:

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. [Emphasis added.]

In the case at bar, it has been argued that the rebuttal evidence served only to confirm the fact that the appellant stole money from the Ford residence. The appellant admitted that he robbed the Ford home and therefore, it was argued, the rebuttal evidence was not determinative of an issue which must be proved in order to come to a decision in the case.

In my view, the crucial question with regard to the admission of rebuttal evidence is not whether the evidence which the Crown seeks to adduce is determinative of an essential issue, but rather whether it is related to an essential issue which may be determinative of the case. If the reply evidence goes to an essential element of the case and the Crown could not have foreseen that such evidence would be necessary, then it is generally admissible. Thus, if a statement is made during the course of a witness's testimony at trial which conflicts with other evidence relating to an essential issue in the case, reply evidence will be permitted to resolve the conflict.

It is true that the Crown cannot split its case to obtain an unfair advantage. Nor should the Crown be able to put in evidence in reply on a purely collateral issue. However, it is fit and proper that reply evidence be called which relates to an integral and essential issue of the case. In such circumstances, it would be wrong to deprive the trier of fact of important evidence relating to an essential element of the case. The course of a trial, particularly a criminal trial, must be based upon rules of fairness so as to ensure the protection of the individual accused. However, the rules should not go so far as to deprive the trier of fact of important evidence, that can be helpful in resolving an essential element of the case.

Let us consider now the situation presented in this case. It was essential for the Crown to establish that the Ford residence had been robbed by Aalders. It was necessary to prove both that Aalders planned the robbery and that his killing of Lawrence Ford was planned and deliberate. The Crown was anxious to establish the importance and significance of the robbery to Aalders. Viewed realistically the bulk and weight of the articles stolen were such that Aalders had to obtain a vehicle to transport them. That, in turn, required Aalders to wait in the house for the return of Mr. Ford at lunchtime when he could shoot him and take his vehicle. Further, in order to demonstrate the significance and importance of the robbery to Aalders it was necessary for the Crown to show his possession of and his reliance upon the money he took from the Ford house.

In his evidence at trial, Aalders testified that when he first came to the house he did not intend to rob it but simply to ask Mr. Ford if he could get a ride with him from the railway station later on. He admitted that when he went into the house, he committed the robbery, but he stated that the two five dollar bills, and one two dollar bill which he had in his possession at the time of his arrest and which appeared to be quite old, had been given to him by his mother or his grandmother. Yet the evidence given by the victim's son indicated that they might well have come from collection of old bills that was kept by his father and sister. As well, Aalders testified that the $141 that he had at the time of his arrest came from a welfare cheque which he had received and cashed. Thus the robbery was made to appear as something that was spontaneous, carried out upon the spur of the moment and an incident that was relatively unimportant to Aalders as he had alternative sources of funds.

The Crown would have had no way of knowing that he would testify in that manner in light of his earlier statement. It is not a sufficient answer to say that Aalders admitted the robbery because even though he did admit it, he denied important aspects of the robbery. This denial presented the robbery in a manner that was not only more favourable to Aalders but also was false and misleading. The evidence from the welfare officials that he had never received welfare payments was relevant and important because it would establish that the robbery was, in all probability, the source of all the money in his possession at the time of his arrest. This evidence was also significant to the charge of murder as it could lead to the reasonable inference that the robbery was of importance to Aalders. It can be inferred from the evidence that the murder of Ford in order to obtain his car was an integral part of the robbery. Evidence as to the details of the robbery formed an important part of the Crown's case. The nature and details of the robbery did not constitute a collateral issue, but rather an integral and essential aspect of the case. In the circumstances of this case, it was appropriate that the Crown call evidence in reply to demonstrate the importance of the robbery to Aalders.

The reason for permitting evidence to be led in reply in this case is not simply that the reply will affect the credibility of Aalders for all testimony in a case will, to some extent, be subject to testing for its credibility. Rather, it is the fact that the evidence goes to an integral element of the case coupled with the recognition that the Crown could not have foreseen the accused would testify in this way which makes the evidence admissible in reply. The bald admission of the robbery in the course of evidence which falsely coloured its nature and changed important details cannot result in a finding that the reply evidence thereby goes solely to collateral issues. The statements given by Aalders to the police which were admitted in the trial, varied from his testimony, and it was important that any confusion with regard to the statements and his testimony on this essential issue be clarified. This could only be done by way of reply. It cannot then be said that the reply evidence constituted the splitting of the Crown's case.

The appellant relied upon two authorities to support his position. The first of these was Krause, supra. As I have indicated, the admission of the reply evidence in this case does not offend any of the principles put forward in Krause. It is, as well, important to take into account the very different factual background which was presented in the Krause case. Krause had testified not only with regard to the circumstances which surrounded the murder but also with respect to his involvement with the police during the course of the murder investigation. Crown counsel cross-examined Krause about his statements to the police and then applied, pursuant to s. 11 of the Canada Evidence Act, to call rebuttal evidence at the conclusion of the case for the defence.

It was observed by McIntyre J., writing on behalf of the unanimous Court, that the trial judge had erred in admitting and permitting the cross- examination on the statement to the police as there had been no inconsistent statement made by the accused in the course of his testimony. Furthermore, it was held that the evidence in respect of which rebuttal had been permitted dealt with the accused's assertion that the police had harassed him before his arrest. This, it was found, was a collateral issue that was neither material nor relevant to a decision as to whether the accused had killed the victim. It reflected only on the integrity of the police and did not touch on the guilt or innocence of Krause. That factual situation is a far cry from the one presented in this case. In the case at bar, the reply evidence concerned an issue essential for the determination of the case.

The appellant also relied upon Latour, supra. Latour had been charged with the robbery of a jewellery store. During the trial it was asserted that he had an alibi. In attempting to challenge this defence, the Crown asked Latour whether he had ever been in a particular jewellery store on specified dates three months subsequent to the robbery. The Crown led rebuttal evidence relating only to the collateral issue as to his presence in another jewellery store on a later date. There it was held that the rebuttal evidence should not have been permitted as it did not deal with any issues relating to the robbery or to the alibi or indeed to any other material issue presented in the case. The sole purpose of the rebuttal evidence was to discredit the appellant's testimony by attacking his credibility on a purely collateral issue. It was therefore improper and inadmissible. Once again that case is very different and readily distinguishable from the one at bar where the rebuttal evidence dealt with an essential issue that was integral to the Crown's case.

2. The Adequacy of the Charge on First Degree Murder

There can be no doubt that the aspect of planning and deliberation are separate elements of the crime of murder in the first degree, both of which must be established beyond a reasonable doubt. In More, supra, Cartwright J. (as he then was) stated at pp. 533-34:

The evidence that the murder was planned was very strong, but, as was properly pointed out to the jury by the learned trial judge, they could not find the accused guilty of capital murder unless they were satisfied beyond a reasonable doubt not only that the murder was planned but also that it was deliberate. The learned trial judge also rightly instructed the jury that the word "deliberate", as used in s. 202A (2)(a), means "considered not impulsive".

Other meanings of the adjective given in the Oxford Dictionary are "not hasty in decision", "slow in deciding" and "intentional". The word as used in the subsection cannot have simply the meaning "intentional" because it is only if the accused's act was intentional that he can be guilty of murder and the subsection is creating an additional ingredient to be proved as a condition of an accused being convicted of capital murder.

It is the appellant's contention that the trial judge failed to adequately distinguish between the elements of planning and deliberation. I cannot accept that contention. It is apparent, when the charge is read as a whole, that the jury was properly instructed with regard to the elements of planning and deliberation. On several occasions, the trial judge told the jury that in order to convict the appellant of first degree murder, they had to find that the act had been [TRANSLATION] "planned and desired". In the written description of the elements of first degree murder which the trial judge gave to the jury, it was clearly indicated in the last paragraph of that document that the Crown had to prove beyond a reasonable doubt that the killing involved [TRANSLATION] "planning and deliberation". This instruction was repeated several times to the jury. As an example, the following instruction given to the jury properly conveys the distinct meanings of the words planned and deliberate:

[translation] In criminal law, then, the expression "planned and deliberate" means: the carefully thought out design which precedes the carrying out of an unlawful act. So it is the commission of an unlawful act after having thought about it. It is an act which is planned and desired.

The jury submitted a question on planning and deliberation. It is, of course, important that a trial judge respond to questions from the jury accurately and with reasonable detail. It is the position of the appellant that there was some confusion created by the response of the trial judge to this question. Yet the response is, I think, adequate. In defining the word [TRANSLATION] "planned", the trial judge stated:

[translation] Often instead of always using the full expression "planned and deliberate", it is summarized by saying "planned, prepared in advance, having thought about it in advance, having thought about something in advance", and that's about it for planning.

This instruction was, I think, particularly appropriate in light of the facts of the case. The position of the Crown throughout the trial was that there had been long and careful preparations for the robbery and murder and that it was carried out in a cold and calculated manner. I agree with the description put forward in the reasons of Chouinard J.A., at p. 159 C.C.C. where he wrote:

[translation] These two elements were, in the present case, particularly interconnected. How, in effect, can one conceive that the victim's murder, carried out as it was, could in the jury's mind have been isolated from the notion of commission which was described at length, and thereby limited to planning? The theory of the prosecution, I repeat, alleged lengthy preparation and cold‑blooded and lucid execution.

The directions given to the jury by the trial judge on the issue of planning and deliberation were quite clear that they were separate concepts, that is to say, distinct elements of first degree murder both of which had to be established beyond a reasonable doubt. Importantly, his reply to the jury's question was lengthy and detailed. He repeated his original instructions and reviewed again the written statement he had left with the jury. Both his oral and written instructions pointed to the need for the Crown to establish, beyond any reasonable doubt, the elements of both planning and deliberation.

3. Manslaughter

The appellant submits that the trial judge should have instructed the jury that manslaughter was an alternative verdict. If there was evidence which had "an air of reality" which indicated that Aalders did not intend to kill Lawrence Ford or did not intend to cause him bodily harm which he knew was likely to cause his death, then manslaughter should have been left to the jury as an alternative verdict. See R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13, Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, and R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265.

The evidence put forward is the testimony of Aalders to the effect that he did not wish to kill Mr. Ford but only to shoot him in the legs. I cannot see that there was any air of reality to this testimony when it is viewed in the context of all the evidence in this case.

The appellant arrived at the Ford residence at 8:00 a.m. He was familiar with the Ford family routine and was well aware that no one would be home at that time. He broke into the home and immediately secured and loaded the 30.30 rifle which he used at once to silence the dog. He then armed himself with the smaller, more convenient .32 calibre pistol. Next he made a careful search for ammunition for the handgun both upstairs and in the basement. He shot the lock off a chest and obtained more ammunition for it. He loaded it and placed it in his belt. In his own evidence he did this so that he would not be surprised in the course of his robbery. He gathered together all the stolen articles and placed them by the back door.

It is hard to imagine that he could not have removed the stolen goods earlier, taken them to the woods or left the premises with the money had he wished to do so. Yet he lay in wait for the return of Lawrence Ford which he knew must be around noon, over four hours after he had broken into the house. He took care to conceal himself in the bathroom. When Ford saw his slain dog and turned back towards the bathroom, Aalders advanced towards him firing the gun. Eight bullets entered Ford's body. Only one was in the area of the legs; the rest were in the torso and neck. Ford was executed, his death insured by the repeated shots that were fired into his body. In those circumstances I can see no air of reality whatsoever to Aalders' testimony such that it could possibly be said to raise the defence of manslaughter. This killing has every indication of being a cold blooded, planned and deliberate execution. It follows that it would not have been appropriate to have left manslaughter to the jury.

V. Conclusion and Disposition

The evidence called in reply by the Crown was properly admitted. The directions to the jury on planning and deliberation were adequate. There was no air of reality to the defence of manslaughter. In the result, I would dismiss the appeal.

//Sopinka J.//

The following are the reasons delivered by

Sopinka J. (dissenting) -- The appellant argued that the trial judge erred in allowing rebuttal evidence which contradicted the appellant's assertion (made on cross-examination) that he received certain monies from social assistance. This Court addressed the rules applicable to rebuttal evidence in R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466. McIntyre J. stated (at p. 474):

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.

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. [Emphasis added.]

The relationship between cross-examination and rebuttal were similarly described in McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 182-83:

On cross-examination, every permissible type of impeachment that may be employed during cross-examination has as one of its purposes the testing of the credibility of the witness. The use of extrinsic evidence to contradict is more restricted due to considerations of confusion of the issues, misleading the jury, undue consumption of time, and unfair prejudice raised by the introduction of so-called collateral matters. If a matter is considered collateral, the testimony of the witness on direct or cross-examination stands -- the cross-examiner must take the witness' answer; extrinsic evidence, i.e., evidence offered other than through the witness himself, in contradiction is not permitted. If the matter is not collateral, extrinsic evidence may be introduced disputing the witness' testimony on direct examination or denial of truth of the facts asserted in a question propounded on cross-examination.

The respondent argued that the rebuttal evidence was justified because of discrepancies between the appellant's statement to the police and his testimony. In his declaration to the police, the appellant stated that he went to the Ford house to break in. In testimony, he stated that he went to ask the deceased a favour. In the declaration, the appellant said nothing about aiming the gun at the deceased's legs. In testimony, the appellant stated that he aimed the gun at the deceased's legs and that he did not intend to kill him. The declaration said nothing about the origins of funds found in the appellant's possession upon arrest. In direct examination, the appellant claimed that certain old bank notes were given to him by his mother or his grandmother. In cross-examination, the appellant claimed that other funds in his possession were from a social assistance cheque. The rebuttal evidence of two social welfare workers was that the appellant had never received social assistance, and that his applications for social assistance had been refused.

The respondent took the position that the appellant denied having any intention to commit robbery, and that the rebuttal evidence showed recent possession of stolen property which was essential to prove that the robbery was intentional. The respondent relied on the reasoning of Tourigny J.A., who held that the appellant's testimony [translation] "... would be to the effect that he went to the Ford residence without any criminal intent and, à la rigueur, there perhaps was not even a break, enter and theft" (1991 CanLII 3031 (QC CA), [1991] R.J.Q. 2097, 69 C.C.C. (3d) 154, at p. 168 C.C.C.). With respect, the evidence does not support this analysis. Although the appellant did change his story with respect to his intentions in going to the Ford house initially, he never changed his story with respect to the actual robbery. The rebuttal evidence was only relevant to this second point, which had been admitted by the appellant.

In his testimony in chief, the appellant specifically admitted robbing the deceased's house and robbing the deceased's person:

[translation] I searched in his pockets until I found the keys.

His wallet was in the same pocket, so I took it out, opened it and took all the money inside it. I went back downstairs and took the money, weapons and wine and took all of this upstairs. I took the keys and opened the trunk of the car and put everything in the trunk, and closed it ....

After that, I got into the car, started the engine and drove away from the house.

On cross-examination, the appellant was not directly challenged on these points, nor did the appellant attempt to deny the robbery. Rather, he continued to admit it, as the following exchange indicates:

[translation]

Q. The money you took: there were American notes, were there any Canadian notes?

A. I think so.

The rebuttal evidence of the social welfare workers was not relevant to the appellant's assertion that he did not intend to kill the deceased, and it was wholly unnecessary to prove the robbery, as this had been admitted by the appellant's own testimony. The respondent had the right to cross-examine the appellant on collateral facts, in order to attack his credibility, but having done so the respondent had to take the appellant's answers. Put in context, the rebuttal evidence attacked the appellant's credibility on the sole question of whether he was a recipient of social assistance, a collateral issue which was raised for the first time in cross-examination.

The respondent also relied on the reasons of Tourigny J.A. arguing that the appellant made his credibility a central issue by giving testimony which differed from his police statement. Tourigny J.A. stated (at p. 168 C.C.C.):

[translation] Aalders' credibility, by the choice that he himself had made to change his story and not in the framework of cross‑examination, becomes an issue which is not collateral or incidental, but an important issue.

In any case where the accused testifies, his credibility will be on the line. Allowing rebuttal evidence simply because the accused has chosen to make his credibility an issue is far too broad an interpretation of Krause. I agree with Proulx J.A. who stated (at p. 187 C.C.C.):

[translation] In the present case, the appellant did not deny that he had taken moneys found on the victim's person as well as in his residence. In fact, the appellant had admitted it in his statement and in his testimony; the judge, in his charge to the jury, even took this fact for granted. In this context, how could it be relevant and important or essential to the determination of the case to show that, contrary to what the appellant stated, the money found in his possession at the time of his arrest, that is three days after the commission of the theft and the homicide, did not come from Welfare? [Emphasis in original.]

An error of this nature cannot be cured by application of the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46. In John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476, this Court stated (at pp. 481-82):

Section 613(1)(b)(iii) [now s. 686(1)(b)(iii)] of the Criminal Code cannot be invoked in these circumstances. The reviewing tribunal cannot, with anything approaching reality, retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record. The appellate tribunal does not have the advantage of seeing the witnesses, and in any case, was never intended in the criminal process to replace the jury.

Accordingly, I would allow the appeal and order a new trial.

Appeal dismissed, SOPINKA J. dissenting.

Solicitors for the appellant: Lévesque, Labrecque & Associés, Québec.

Solicitor for the respondent: Georges Letendre, Québec.