R. v. Biddle, [1995] 1 S.C.R. 761

Eric Ralph Biddle Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Biddle

File No.: 23734.

1994: October 14; 1995: March 2.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Evidence ‑‑ Admissibility ‑‑ Rebuttal evidence ‑‑ Issue as to identity ‑‑ Accused giving alibi ‑‑ Crown in reply introducing evidence of witness calling part of alibi into question ‑‑ Whether reply evidence properly admissible ‑‑ Whether verdict supported by the evidence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(i), (b)(iii).

Criminal law ‑‑ Jury ‑‑ Unreasonable bias ‑‑ All‑female jury fashioned through use of stand‑bys ‑‑ Provision allowing for Crown's numerical superiority in stand‑bys later found unconstitutional and repealed ‑‑ Whether abuse of jury selection process ‑‑ Whether reasonable apprehension of bias created ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 634.

The appellant was convicted of two counts of assault causing bodily harm and two counts of choking with intent to commit an indictable offence. The four charges arose in September and October, 1986, out of two separate attacks on women. Both victims were attacked immediately after leaving the underground parking area of their respective apartment buildings. The accused was arrested returning to his car, which was parked in a parking garage, about 2 1/2 hours after the attack on the second victim (M.S.F.).

Identity was the only issue in dispute at trial. The accused provided an alibi as to his whereabouts during the time that the attack on M.S.F. occurred. The Crown, to counter the alibi, called a witness (Ms. Geurts) in rebuttal who testified that, shortly before the time covered by the alibi, she had been followed by the appellant in his car while she was driving to the garage of her apartment building. This testimony did not completely refute the alibi but served to undermine the accused's credibility with respect to his whereabouts during the course of that evening. At the time this evidence was adduced, the Crown did not specify its purpose and no objection was taken to its admissibility. The appellant was permitted to call surrebuttal evidence in response.

The appellant was convicted by an all‑female jury. Crown counsel had set out to empanel an all‑female jury and succeeded in doing so by virtue of the unequal stand‑by power given to the Crown under the former s. 634 of the Criminal Code. This section has since been found to be unconstitutional. The appeal was dismissed. At issue here was: (1) whether the use of the Crown's stand‑by power to tailor the jury constituted an abuse of the jury selection process or created a reasonable apprehension of bias; (2) whether the verdict was unreasonable or unsupported by the evidence; and (3) whether the reply evidence called by the Crown was properly admissible.

Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Cory, Iacobucci and Major JJ.: The evidence used by the Crown to rebut the alibi was not properly admissible because the Crown split its case to the prejudice of the defence.

The accused is entitled to know the full case for the Crown at the close of the Crown's case so that it is known from the outset what must be met in response. Evidence may be brought 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 could not reasonably have anticipated. Rebuttal evidence is not 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.

The evidence tendered in rebuttal could potentially be relevant to rebut the appellant's assertion regarding his whereabouts on October 28, 1986. The rebuttal evidence would also raise questions about his credibility with respect to other facts in issue. Aside from credibility, this evidence was also potentially admissible as similar fact evidence going to the identity of the attacker in the second assault. The charge to the jury made it evident that the rebuttal evidence had a dual purpose.

Permitting the Crown to adduce the evidence in rebuttal, which was at least partly probative as similar fact evidence tending to prove identity, enabled the Crown to split its case improperly. The Crown had to introduce all evidence on the key issue of identity in the case in chief. The defence had not raised any new or unanticipated matter which required evidence in reply. The opportunity to present evidence in surrebuttal cannot remove the prejudice caused by splitting the Crown's case since the appellant was deprived of the opportunity of knowing the case to be met prior to deciding to testify.

It is unnecessary to decide whether, if the reply evidence was tendered as being relevant to credibility, the collateral fact rule was violated because the evidence was limited to that purpose. In fact, the Crown did not specify the purpose for which it was being led and the trial judge actually invited the jury to consider the evidence as similar fact evidence.

In light of this instruction a jury might well have accepted this evidence as highly relevant to the identity of the perpetrator of the assault on the complainant. This constituted a serious misdirection to the jury especially since the identification evidence was already tenuous. Section 686(1)(b)(iii) of the Code could not be invoked to cure the error of law here. A jury acting reasonably and properly, absent the error of allowing the Crown to adduce the similar fact evidence in rebuttal, could indeed have acquitted the accused.

The surrebuttal evidence did not cure the prejudice caused to the appellant. Not only was the importance of the evidence given in rebuttal unduly highlighted but also the appellant was forced to take the witness stand a second time to answer the Crown's case. This alone has an adverse effect for it creates the impression that the appellant was caught in a lie. The appellant is also subjected to cross-examination for a second time and the Crown is given a second chance to attack his credibility when it ought to have put its entire case in evidence at the outset. Given the frailties of the identification evidence adduced at trial, the rebuttal evidence may have been quite significant in convicting the appellant.

The verdicts, notwithstanding the frailties of the identification evidence, were not unreasonable and unsupported by the evidence within the meaning of s. 686(1)(a)(i) of the Code. Since the verdicts were not unreasonable, appellant was not entitled to be acquitted of the charges. No opinion was expressed on the admissibility of Ms. Geurts if properly introduced at the new trial. A new trial was warranted because of the error of allowing the Crown to split its case.

It was not necessary to deal with the issue of the Crown's alleged misuse of its right to stand by potential jurors under the former s. 634 of the Code. That provision had been found to be unconstitutional and was repealed. Therefore, this issue could not recur and was only of academic interest.

Per Gonthier J.: Sopinka J.'s opinion on the issues of the reasonableness of the verdict given the evidence and the admissibility of the evidence given in reply was shared.

The issue of whether the Crown's use of its stand‑by power to obtain an all‑female jury constituted abuse of the jury selection process giving rise to a reasonable apprehension of bias was not academic and needed to be addressed. The Crown cannot fashion, and must not be perceived to fashion, a jury which may seem favourable to it. The actual effect of such a prosecutorial practice on the fundamental characteristics of the jury is not a determining element. It is rather a matter of gauging the anticipated effect of the Crown's conduct on the perception of a reasonable observer as to the quality of the jury selected. The Crown is also obliged to promote the fairness of the trial and accordingly must make wise use of its powers in the jury selection process in order to select one that is impartial, representative and competent. Impartiality is the most important of these three elements. Competence is more difficult to influence directly through the use of stand-bys. The selection process can more easily affect the representative nature of the jury which is a characteristic furthering the perception of impartiality even if not fully ensuring it. Since impartiality is best guaranteed by the unanimous verdict of a representative jury, an apparent attempt by the Crown to exclude representativeness undermines that impartiality.

Per McLachlin J.: A jury must be impartial and competent but need not be representative. Representativeness is a means of achieving impartiality and competence but is not essential if a jury has these qualities, and absence of representativeness does not automatically entitle an accused person to a new trial. To set the standard that a jury must be representative is to set one impossible to achieve merely because of the many groups and variants into which society may be divided.

The Crown, in empanelling an all‑female jury, did not deliberately abuse the system. No evidence suggested that it used its stand‑by powers to achieve a favourable jury or that the jury was, or was perceived to be, anything but impartial and competent.

A reasonable member of the public would not see an all‑female jury as favouring the Crown. The question is not whether people might for irrational reasons object to an all‑female jury but whether such people could reasonably object to an all‑female jury whose members were otherwise found fit to judge the issues.

Per L'Heureux‑Dubé J. (dissenting): The reasons of Doherty J.A. of the unanimous Court of Appeal were adopted with respect to the issues before this Court.

First, the Crown's deliberate empanelling of an all‑female jury through the use of its numerical superiority in standing by jurors did not require that the jury verdicts be set aside as it did not lead to a reasonable apprehension of bias. A reasonable, well‑informed observer would not reasonably apprehend that an all‑female jury would be favourably disposed to find for the Crown on the identification issue upon which this case turned. Making findings of partiality on the basis of assumed stereotypical reactions based on gender is dangerous and contrary to our concepts of equality and individuality. Nothing in the circumstances of this case lifted the submission that an all‑female jury could give rise to a reasonable apprehension of bias above the level of unwarranted stereotyping.

Second, given the evidence adduced at trial, the verdicts against the appellant were reasonable.

Third, the trial judge did not improperly exercise his discretion in permitting the Crown to adduce the evidence of Ms. Geurts in reply. A reasonable trial judge properly applying the principles relating to the admissibility of reply evidence could have admitted this reply evidence. While the reply evidence had little relevance to the issue of identity, it became much more relevant after the appellant had given a detailed account of his whereabouts. Furthermore, the appellant was not prejudiced by the admission of the reply evidence.

Finally, agreement was expressed with McLachlin J.'s comments on the issue of jury representativeness.

Cases Cited

By Sopinka J.

Referred to: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91; John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476; R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6; Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599; R. v. Wood (1986), 1986 CanLII 4720 (ON CA), 28 C.C.C. (3d) 65; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

By Gonthier J.

Considered: R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91; referred to: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16.

By L'Heureux‑Dubé J. (dissenting)

R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 563(1), (2).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 634 [rep. & sub. 1992, c. 41, s. 2], 686(1)(a)(i), (b)(iii).

Authors Cited

Cross, Rupert, Sir, and Colin Tapper. Cross on Evidence, 7th ed. London: Butterworths, 1990.

Schiff, Stanley A. Evidence in the Litigation Process, vol. 1, 3rd ed. Toronto: Carswell, 1988.

APPEAL from a judgment of the Ontario Court of Appeal (1993), 1993 CanLII 8506 (ON CA), 14 O.R. (3d) 756, 65 O.A.C. 20, 84 C.C.C. (3d) 430, 24 C.R. (4th) 65, dismissing the accused's appeal from his conviction for assault causing bodily harm and choking with intent to commit an indictable offence. Appeal allowed, L'Heureux‑Dubé J. dissenting.

Bruce Duncan and Todd Ducharme, for the appellant.

Norman P. Farrell, for the respondent.

The judgment of Lamer C.J. and La Forest, Sopinka, Cory, Iacobucci and Major JJ. was delivered by

Sopinka J. --

I. Facts

[1] The appellant was convicted of two counts of assault causing bodily harm and two counts of choking with intent to commit an indictable offence. He was acquitted at trial of two other charges. The four charges arose out of two separate incidents relating to attacks on a female complainant (C.L.F.) in September 1986, and on a second female complainant (M.S.F.) in October 1986. Both victims were attacked immediately after leaving the underground parking area of their respective apartment buildings. Both women were beaten and choked and suffered bodily harm.

[2] On September 25, 1986, C.L.F. returned to her apartment building at about 1 a.m. She parked her car in the underground garage and went to the elevator. While waiting, she heard footsteps from behind but did not turn around. At that moment, she was attacked from behind as a black object came in front of her face and was then pulled tightly around her neck. After seeing her attacker briefly, C.L.F. passed out as a result of the choking. When she awoke, she noticed that her purse was gone.

[3] On October 28, 1986, M.S.F. returned to her apartment building between 10:00 p.m. and 10:30 p.m. After parking her car in the underground garage she ran to the stairway leading to the foyer. She was confronted by a man who pushed her against a wall, punched her and then beat her and stomped on her. M.S.F. yelled "fire" and her assailant got up, looked at her and walked out the door. M.S.F. then went for assistance and was taken to the hospital.

[4] At trial, the appellant testified that, on the night of October 28, 1986, he was at a show from around 7:30 p.m. to 9:15 p.m. He claimed that, after leaving the show early, he then walked his dog and went to visit a friend who was not home. The appellant stated that he then drove to two bars and left his car at a parking garage around 11:25 p.m. Upon returning to his car, the appellant was arrested. This was approximately 2 1/2 hours after the attack of M.S.F.

[5] In order to refute the alibi of the appellant, the Crown called the evidence of Ms. Ruth Geurts in rebuttal. She testified that, at around 8:30 p.m. that evening, she had been followed by the appellant in his car, while driving to the garage of her apartment building. At the time this evidence was adduced, the Crown did not specify its purpose and no objection was taken to its admissibility. The appellant was permitted to call surrebuttal evidence in response.

[6] The appellant was tried by an all-female jury and was convicted on the four counts relating to the attacks on C.L.F. and M.S.F. Crown counsel had set out to empanel an all-female jury and succeeded in doing so by virtue of the former s. 634 of the Criminal Code, R.S.C., 1985, c. C-46 (which has since been declared unconstitutional in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91). That provision gave the Crown four peremptory challenges and 48 stand-bys while the appellant had only 12 peremptory challenges and no stand-bys.

[7] Identity was the only issue in dispute at trial. The appellant appealed the verdict based on three grounds. First, he argued that the convictions were unreasonable due to the frailty of the identification evidence. Secondly, he argued that the reply evidence of Ms. Geurts was not properly admissible, claiming that the Crown split its case. Finally, it was argued that, by empanelling an all-female jury, the Crown abused its use of the stand-by power which was still in effect at the time of the trial.

[8] The appeal was dismissed by a unanimous Court of Appeal for Ontario ((1993), 1993 CanLII 8506 (ON CA), 14 O.R. (3d) 756). Although it was recognized that the identification evidence was admittedly less than ideal, Doherty J.A. concluded that a properly instructed jury acting judicially could reasonably have returned a guilty verdict on the four charges. The Court of Appeal also rejected the contention that the Crown's use of stand-bys to empanel an all-female jury would create a reasonable apprehension of bias. The final ground of appeal relating to the admissibility of the reply evidence also failed. Doherty J.A. held that the evidence of Ms. Geurts became much more relevant after the appellant had testified concerning his location at 8:30 p.m. As well, there was no prejudice to the appellant since he was aware of the nature of the evidence of Ms. Geurts and had an opportunity to respond to it. Thus, it was held that the trial judge did not err in admitting the reply evidence.

II. Issues

[9] The appellant raised three grounds of appeal:

1. Did the Court of Appeal err in law in holding that the use by the Crown of its stand-by power to tailor the jury did not constitute an abuse of the jury selection process or create a reasonable apprehension of bias?

2. Did the Court of Appeal err in holding that the verdict was not unreasonable or unsupported by the evidence?

3. Did the Court of Appeal err in holding that the reply evidence called by the Crown was properly admissible?

[10] I conclude that the appellant is entitled to a new trial on the basis of the third ground. The appeal fails on the second ground and it is not necessary to deal with the first ground. I propose to deal with the issues in that order.

III. Analysis

A. Was the Reply Evidence Admissible?

[11] The appellant submitted that the evidence of Ms. Geurts, which was tendered in reply to the defence's case, was not properly admissible because the Crown split its case to the prejudice of the defence. The appellant also contended that the admission of the evidence violated the collateral fact rule.

[12] The rationale behind the rule against allowing the Crown to split its case was stated by this Court in John v. The Queen, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476. The judgment of a unanimous Court was delivered by Estey J. and Lamer J. (as he then was) who wrote, at pp. 480-81:

Clearly this is the situation referred to in criminal practice as the prosecution splitting its case. The wrongs which flow from such a practice are manifold and the practice has been prohibited from the earliest days of our criminal law.

These are the consequences that flow from a violation of one of the fundamental precepts of our criminal process, namely the dividing of the prosecution's case so as to sandwich the defence. This is a particularly lethal tactic where the evidence in reply raises a new issue and attacks the accused's credibility for this is the last evidence which the members of the jury hear prior to their deliberations. It also raises the question as to the propriety of the Crown's conduct in the context of the accused's right to elect to remain silent or to elect to enter the witness box in his own defence. He must be given the opportunity of making this decision in the full awareness of the Crown's complete case. This did not occur in these proceedings.

[13] In R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, McIntyre J., for the Court, explained under what circumstances the Crown may call evidence in rebuttal. At pages 473‑74 he noted that the general rule is that the Crown cannot split its case. McIntyre J. added:

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.... 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.

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. [Emphasis added.]

[14] The following excerpt from R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), at p. 26, is also relevant:

The general rule with respect to the order of proof is that the prosecution must introduce all the evidence in its possession upon which it relies as probative of guilt, before closing its case.... The rule prevents the accused being taken by surprise, and being deprived of an adequate opportunity to make a proper investigation with respect to the evidence adduced against him. The rule also provides a safeguard against the importance of a piece of evidence, by reason of its late introduction, being unduly emphasized or magnified in relation to the other evidence.

Rebuttal evidence by the prosecution is restricted to evidence to meet new facts introduced by the defence. The accused's mere denial of the prosecution's case in the witness-box does not permit the prosecution in reply to reiterate its case, or to adduce additional evidence in support of it. In practice, however, it may often be difficult to distinguish between evidence, properly the subject of rebuttal, and evidence of facts relevant to prove guilt which should have been proved in the first instance by a full presentation of the prosecution's case....

The Court has, however, a discretion to admit evidence in reply which has become relevant to the prosecution's case as a result of defence evidence which the Crown could not reasonably be expected to anticipate. [Emphasis by underlining added.]

[15] In the present case, in my view, the evidence tendered in rebuttal could potentially be relevant for two purposes. First, Ms. Geurts' testimony was relevant to rebut the appellant's assertion regarding his whereabouts at around 8:30 p.m. on October 28, 1986. While the evidence did not directly refute the appellant's alibi, since the offence occurred between 10:00 p.m. and 10:30 p.m. that night, it impeached his credibility with respect to his whereabouts during the course of that evening. As the Crown noted in its factum, the fact that the appellant may have lied about his whereabouts at 8:30 p.m. would cast doubt on the credibility of the appellant's testimony in respect of other facts in issue.

[16] Aside from attacking the appellant's credibility, the rebuttal evidence was also potentially admissible as similar fact evidence going to the identity of M.S.F.'s attacker. Given that identity was essentially the sole issue at trial, the significance of this evidence cannot be underestimated. The nature of the evidence of Ms. Geurts was summed up in the trial judge's charge to the jury, as follows:

Her evidence would appear to therefore put Biddle on Holly Street at about 8:30 p.m., or let us say 8:30 to 8:45 p.m., in that area of time. This was the time when Biddle said that he was at the Reveen performance at Danforth and Broadview. It also puts Biddle in the sinister role of following a car driven by a woman of about the same age and category of [C.L.F.] and [M.S.F.] -- by "category" I mean young businesswomen driving cars. [Emphasis added.]

The charge to the jury, therefore, made it quite evident that there was a dual purpose to the admission of the reply evidence.

[17] In oral argument, the Crown conceded that if the reply evidence was tendered as similar fact evidence, then it ought to have been adduced in the case in chief. This was an appropriate concession since the probative value of the similar fact aspect of Ms. Geurts' testimony related to the identity of the appellant. This was a key issue with respect to the innocence or guilt of the appellant.

[18] Permitting the Crown to adduce the evidence of Ms. Geurts in rebuttal, which was at least partly probative as similar fact evidence tending to prove identity, enabled the Crown to split its case improperly. It was clear that identity was the key issue at trial and the Crown had an obligation to introduce all relevant evidence to this issue in the case in chief. It cannot be said that the defence had raised some new matter or defence with which the Crown had no opportunity to deal and which the Crown could not reasonably have anticipated. The Crown was in possession of the evidence of Ms. Geurts prior to the defence case and must have reasonably anticipated that the appellant would challenge the identification evidence presented. As the appellant noted at the hearing of this appeal, the Crown knew of his explanation of his whereabouts as he had given a statement to the police. Therefore, the rebuttal evidence ought not to have been admissible in reply. There was no reason that the Crown could not have adduced the evidence of Ms. Geurts prior to the defence case. By splitting the Crown's case, the appellant was deprived of the opportunity of knowing the entire case to meet prior to deciding whether or not to testify. The opportunity to present evidence in surrebuttal cannot remove this prejudice.

[19] The Crown also sought to justify the evidence on the ground that it impugned the appellant's testimony as to his whereabouts early in the evening and therefore was relevant to credibility. As the assault was alleged to have taken place between 10:00 and 10:30 p.m. and the evidence of Ms. Geurts related to a period between 8:30 to 8:45 p.m., it did not directly tend to rebut the alibi. Its admission would, therefore, encounter the collateral fact rule. This rule is subject to enumerated exceptions and, although none of the recognized exceptions would appear to apply in this case, it has been suggested that this is not a closed list. See Cross on Evidence (7th ed. 1990), at p. 310; Stanley A. Schiff, Evidence in the Litigation Process (3rd ed. 1988), vol. 1, at pp. 534-35.

[20] It is unnecessary and undesirable to resolve that question in this case because, even if admissible for the purpose of impeaching the appellant's credibility, its use was not limited to that purpose. The Crown did not specify the purpose for which it was being led. Although no objection was taken by the appellant at the time, this alone does not prevent raising the illegality of the rebuttal evidence on appeal: see Latour v. The Queen, 1976 CanLII 145 (SCC), [1978] 1 S.C.R. 361, at p. 368. Furthermore, the trial judge did not instruct the jury on the limited use of the rebuttal evidence. In fact, as illustrated by the above passage quoted from the charge to the jury, the trial judge actually invited the jury to consider the reply evidence as similar fact evidence. In light of this instruction a jury might well have accepted this evidence as highly relevant to the identity of the perpetrator of the assault on the complainant.

[21] In the circumstances of the case, this constituted a serious misdirection to the jury. As outlined by Doherty J.A., the evidence of identification was already tenuous. In my view, the error could reasonably have affected the verdict of the jury. It cannot be said that, absent the error of allowing the Crown to adduce the similar fact evidence in rebuttal, no jury acting reasonably and properly instructed could have acquitted the accused (see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; and R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599). In John v. The Queen, supra, at p. 481, it was held that s. 686(1)(b)(iii) of the Code could not be invoked to cure an error of law where the Crown had improperly split its case and was wrongly permitted to lead reply evidence. An appellate court cannot retry the case "to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record" (John v. The Queen, supra, at pp. 481-82). Furthermore, I note that the Crown made no arguments to substantiate a claim that the improper admission of the evidence would not amount to a substantial wrong or miscarriage of justice. The Crown did, however, submit that by allowing surrebuttal evidence any prejudice to the appellant was cured. That submission is properly considered in relation to the application of s. 686(1)(b)(iii).

[22] It cannot be said that the opportunity to present evidence in surrebuttal removes the prejudice suffered by the appellant. As was noted by McIntyre J. in R. v. Krause, supra, and by Estey and Lamer JJ. in John v. The Queen, supra, an underlying reason for the rule against splitting the case is that the accused is entitled to know the entire case of the Crown which must be met. It is only where the accused has full knowledge of the Crown's case that one is able to decide whether or not to testify.

[23] Furthermore, in John v. The Queen, supra, at p. 480, this Court held that to allow the Crown to split its case "is doubly wrong because the effect was to force the accused to return to the witness box". Merely requiring the appellant to enter the witness box for a second time has an adverse effect as it creates the impression that he was caught in a lie. As well, the appellant is subjected to cross-examination for a second time. In effect, the Crown is given a second chance to attack the credibility of the appellant when it ought to have put its entire case in evidence at the outset.

[24] In R. v. Wood (1986), 1986 CanLII 4720 (ON CA), 28 C.C.C. (3d) 65 (Ont. C.A.), it was held that the Crown impermissibly split its case. Although the accused did not call evidence in surrebuttal, Goodman J.A., for the court, stated at p. 83 that:

The probable detrimental effect of the improper admission of the reply evidence is beyond question. It constituted a direct contradiction of the evidence given by the appellant with respect to his knowledge, possession and ownership of the knife. If the reply evidence was believed by the jury, it would have the inevitable effect of destroying the credibility of the appellant and his defence of self-defence and to a lesser extent his defence of provocation. The reply evidence was the last evidence to be heard by the jury with the attendant risk to the appellant that it would carry more weight with the jury for that reason. Even if defence counsel had sought leave for the appellant to give evidence in surrebuttal, it would have meant that the appellant would have been subjected to a second cross-examination. Wittingly or unwittingly, the prosecution, in proceeding in the manner which it did, created a trap for the appellant. [Emphasis added.]

[25] It should also be recognized that the late introduction of evidence may have the effect of unduly magnifying its importance and increasing its weight. This would not otherwise occur but for the improper splitting of the Crown's case. I agree with the submission of the appellant that, in this case, the timing and sequence of the evidence as it unfolded before the jury added to the prejudicial impact of admitting the evidence in reply. In R. v. Campbell, supra, at p. 26, Martin J.A. also acknowledged this aspect of the rule against splitting the case:

The rule also provides a safeguard against the importance of a piece of evidence, by reason of its late introduction, being unduly emphasized or magnified in relation to the other evidence.

[26] Given the frailties in the identification evidence adduced at trial, the evidence of Ms. Geurts may have been quite significant in convicting the appellant. Placing this evidence before the jury at the end of the trial, rather than in the Crown's case, prejudiced the appellant by inordinately elevating its weight.

[27] The respondent relies on the decision of this Court in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, to support the proposition that allowing surrebuttal evidence substantially cures any prejudice caused by allowing the Crown to split its case. In that case, Lamer C.J. noted that the appellants could not make a serious argument that they suffered prejudice as a result of the fact that the Crown tendered evidence in rebuttal rather than in chief. However, one must note the context in which these comments were made. In R. v. Chaulk, supra, it was held that the Crown did not improperly split its case. That is, the evidence was properly admissible in rebuttal. At page 1394, Wilson J. stated:

I agree with Lamer C.J. that no issue of the Crown splitting its case arises here and that the evidence adduced to rebut the defence of insanity was properly admitted by the trial judge.

[28] Thus, R. v. Chaulk, supra, must be read in light of the above circumstances. It cannot be said that, as a general proposition, the ability to call surrebuttal evidence removes any prejudice caused to an accused where the rebuttal evidence was improperly adduced in the first place thereby allowing the Crown to split its case. Unlike in R. v. Chaulk, for the reasons noted above, here the appellant can make a serious argument that the fact the Crown's evidence was adduced in rebuttal rather than in chief was prejudicial, notwithstanding the ability to call evidence in surrebuttal.

[29] It is also worthy to note that if one accepts the contention that calling surrebuttal evidence removes any prejudice of allowing the Crown to adduce reply evidence which ought to have been brought out in the case in chief, then the rule against splitting the case would effectively be emasculated. The Crown would be allowed to split its case as long as the accused was given a chance to reply. This would defeat the very rationale behind the rule against splitting the case. Surely, this is an unacceptable result.

[30] In the case at bar, I would conclude that the surrebuttal evidence did not adequately address the prejudice caused to the appellant. Not only was the evidence of Ms. Geurts highlighted, but also the appellant was forced to take the witness stand a second time to answer the Crown's case. I cannot, therefore, accept the Crown's submission that any prejudice to the appellant was cured by allowing surrebuttal evidence.

[31] In R. v. S. (P.L.), supra, at p. 916, the majority stated:

On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which a conviction could reasonably be based.

The appellant is entitled to a new trial. He is not entitled to an acquittal, however, if there is admissible evidence on which a conviction can reasonably be based. This in substance is the issue raised by the appellant in the next ground of appeal.

B. Was the Verdict Unreasonable or Unsupported by the Evidence?

[32] The appellant contends that the verdicts must be set aside because they are unreasonable and unsupported by the evidence within the meaning of s. 686(1)(a)(i) of the Code. The test to be applied by an appellate court is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered": R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 179-80. If no reasonable jury could have convicted the appellant on the evidence that was properly admissible, then rather than order a new trial, the convictions must be quashed and the respondent would be acquitted of all charges.

[33] At the hearing of the appeal before this Court, we did not call on the respondent to address this issue. Although it is apparent that the identification evidence in the present case was not free from frailties, I am satisfied that the verdicts were not unreasonable. In this regard, I am in substantial agreement with Doherty J.A. Although he made reference to the evidence of Ms. Geurts, I agree with his analysis of the other evidence which was properly admissible and, in my view, a verdict based on this evidence would not be unreasonable. Therefore, the appellant is not entitled to be acquitted of the charges. I should add that I express no opinion on the admissibility of the evidence of Ms. Geurts if properly introduced. That will be a matter for the trial judge at the new trial.

C. Did the Crown Abuse its Stand-by Power to Empanel an All-Female Jury?

[34] In light of my conclusion that a new trial is warranted by virtue of the error of allowing the Crown to split its case, it is not necessary to deal with the issue relating to the Crown's alleged misuse of its right to stand by under the former s. 634 of the Code. Following upon our decision in R. v. Bain, supra, this provision was repealed and this issue of law cannot recur. It is therefore of academic interest only.

IV. Disposition

[35] The counts in respect of which the appellant was convicted were joined in one indictment. At trial the jury was instructed that if satisfied that the same person committed both assaults, they could use the evidence against the appellant as the perpetrator of one of the assaults in determining whether the Crown had proved the assaults on the other complainant. An error with respect to the evidence relating to one complainant is therefore an error that affects all counts for which the appellant was convicted.

[36] In the result, the appeal is allowed, the convictions are quashed and a new trial is ordered.

The following are the reasons delivered by

[37] L'Heureux-Dubé J. (dissenting) -- The appellant in this case was convicted at trial of two counts of assault causing bodily harm and two counts of choking with intent to commit an indictable offence. The verdict was unanimously upheld by the Court of Appeal ((1993), 1993 CanLII 8506 (ON CA), 14 O.R. (3d) 756). Before us, the appellant raised the following three grounds of appeal:

1. Did the Court of Appeal err in holding that the use by the Crown of its stand-aside power to shape the composition of the jury did not constitute an abuse of the jury selection process or create a reasonable apprehension of bias?

2. Did the Court of Appeal err in holding that the verdict was neither unreasonable nor unsupported by the evidence?

3. Did the Court of Appeal err in holding that the reply evidence called by the Crown was properly admissible?

[38] My colleague Justice Sopinka accepts the third ground of appeal, rejects the second ground of appeal, and does not deal with the first ground of appeal. In the result, he would allow the appeal and order a new trial. I disagree. In my view all three grounds of appeal fail and the appeal should be dismissed. In this respect, I adopt the reasons of Doherty J.A. for the unanimous Court of Appeal of Ontario.

[39] Specifically, on the first issue, Doherty J.A noted that the appellant was tried by an all-female jury and that it was clear from the record that the Crown had set out to empanel such a jury. In order to shape the composition of the jury, the Crown had made use of then operative provisions of the Criminal Code, R.S.C., 1985, c. C-46, which gave it numerical superiority in standing by potential jurors. The Crown's numerical superiority in standing by potential jurors was subsequently ruled unconstitutional by this Court in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91. However, the appellant's trial took place prior to R. v. Bain. In this respect, Doherty J.A. stated at p. 768:

The two judgments constituting the majority in Bain took different approaches to its application to cases tried before Bain was released. At p. 109 S.C.R., p. 513 C.C.C., Cory J., for three members of the four-person majority, held that a verdict returned by a jury empanelled under the former provisions of the Code could only be set aside if the appellant could demonstrate an "abuse" of the stand-aside provisions by the Crown.

In my view, the "abuse" described by Cory J. in Bain refers to both the misuse of the stand-aside power and the resultant negative consequences on the impartiality of the jury selected as a result of that misuse. Consequently in pre-Bain cases the court must address the Crown's use of its numerical advantage to shape the composition of the jury, and must also decide whether the jury selected by that process is one which would create a reasonable apprehension of bias in the mind of a reasonable observer.

Applying this test to the case at hand, Doherty J.A. held at p. 770:

This case turned entirely on the question of identification. The victims' honesty was not in issue. The reliability of their identification evidence was very much in issue. I am not prepared to hold, because women may be particularly sensitive to the plight of the victims, that an all-female jury would be unable to objectively assess the reliability of the identification evidence provided by the victims. More to the point, I am not prepared to find that the reasonable, well-informed observer would reasonably apprehend that an all-female jury would be favourably disposed to find for the Crown on the issue of identification.

It is dangerous and contrary to our concepts of equality and individuality to make findings of partiality on the basis of assumed stereotypical reactions based on gender. At heart, the appellant's submission rests on just such assumptions. There is nothing in the circumstances of this case which lifts it above the level of unwarranted stereotyping. In this regard, it is instructive that trial counsel apparently perceived no bias as he did not object during the jury selection process.

In the result, Doherty J.A. concluded that there was no reasonable apprehension of bias. I agree and therefore reject this first ground of appeal.

[40] On the second ground of appeal, Doherty J.A. concluded, after reviewing the evidence adduced at trial, that the verdicts against the appellant were reasonable. Like my colleague Sopinka J., I agree with this assessment and reject the second ground of appeal.

[41] Finally, on the third ground of appeal, Doherty J.A. stated at pp. 771-72:

The principles controlling the admissibility of evidence in reply are well‑established. Those principles do not yield absolute rules of exclusion or admission, but require that the trial judge exercise a discretion through the application of these principles: R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, 29 C.C.C. (3d) 385; R. v. W. (A.) (1991), 1991 CanLII 7125 (ON CA), 3 O.R. (3d) 171 at pp. 178‑81, 45 O.A.C. 359 (C.A.).

No objection was taken at trial to the admission of the reply evidence. Consequently, the trial judge did not direct his mind to the relevant principles or purport to exercise any discretion. There is therefore no record upon which this court may review the trial judge's decision to admit the evidence. In such circumstances (and absent any suggestion of incompetent representation) the appellant can only succeed if he can demonstrate that a reasonable trial judge, applying the applicable principles, could not have admitted the evidence. In other words, if the case is one in which some judges could properly have admitted the evidence while others could properly have excluded it, the appeal cannot succeed.

The evidence of Ms. Guerts as to the appellant's whereabouts about two hours before the attack had little probative value in identifying the appellant as the perpetrator of the assault. In this respect, the present case must be distinguished from R. v. Jackson (1987), 1987 CanLII 2827 (BC CA), 38 C.C.C. (3d) 91 (B.C.C.A.), the authority relied on by the appellant. In Jackson the reply evidence was directly relevant to the time period when the assault occurred. Ms. Guerts' evidence became much more relevant after the appellant, as part of a detailed account of his movements, put his whereabouts at 8:30 p.m. in issue.

I also cannot see any prejudice to the appellant by the admission of the evidence in reply. The defence was apparently aware of the nature of Ms. Guerts' evidence when the appellant testified and the defence had ample opportunity to respond to her evidence.

In my opinion, a reasonable trial judge properly applying the principles relating to the admissibility of reply evidence could have admitted the evidence of Ms. Guerts in reply. I would not give effect to this ground of appeal.

I agree and therefore reject the third ground of appeal.

[42] Before concluding, I note that since first writing these reasons I have had the opportunity to read the reasons of my colleagues Justices Gonthier and McLachlin, who both discuss the issue of jury representativeness. On this issue, I agree with the comments of McLachlin J. and respectfully disagree with those of Gonthier J.

[43] For the reasons outlined above, I would dismiss the appeal.

The following are the reasons delivered by

[44] Gonthier J. -- I have had the benefit of the reasons of Justice Sopinka, and I adopt his review of the facts and of the judgments below. I share his opinion with respect to the second and third grounds raised by the appellant before this Court. I nevertheless believe that it is important to add some further comments. Sopinka J. holds that it is not necessary to address the first ground raised by the appellant, namely that use by the prosecution of its power to stand jurors by for the purpose of obtaining an exclusively female jury constituted an abuse of the process of juror selection and gave rise to a reasonable apprehension of bias. Having regard to this Court's decision in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, my colleague Sopinka J. believes this question is purely academic. With respect, I do not share this view.

[45] Prior to that decision, the power of the Crown to stand jurors by had its source in s. 634(1) and (2) of the Criminal Code, R.S.C., 1985, c. C‑46 (formerly s. 563(1) and (2), R.S.C. 1970, c. C-34). In R. v. Bain, supra, a majority of the Court found that these provisions infringed s. 11(d) of the Canadian Charter of Rights and Freedoms and that this violation was not justified under s. 1. The declaration of invalidity was suspended for six months in order to allow Parliament to remedy the situation if it deemed it appropriate to do so. The change was subsequently enacted by An Act to amend the Criminal Code (jury), S.C. 1992, c. 41, s. 2.

[46] In the case at bar, the appellant's trial took place before the validity of these provisions had been constitutionally challenged. It is certainly true that this fact is to be considered in weighing the effect of a pronouncement of the Court on the issue. It is obvious that, in practice, only a limited number of cases can be affected. Apart from that of the appellant, there are those where the trial of an accused has taken place before July 1992, before judge and jury, and in which the record has shown an extensive use of peremptory challenges and of stand-bys by the Crown. I acknowledge that this number is necessarily likely to diminish with the passage of time.

[47] It appears to me, nevertheless, that this circumstance is not the only one to be considered. Beyond the more immediate repercussions, the first ground raised by the appellant essentially brings into scrutiny the fundamental element of the conduct of the Crown in the unfolding of the trial. One is bound to acknowledge that this aspect is broader in scope; I therefore believe that it is necessary to review the manner in which Doherty J.A., speaking for the Ontario Court of Appeal, addressed the problem (decision reported at (1993), 1993 CanLII 8506 (ON CA), 14 O.R. (3d) 756).

[48] In R. v. Bain, supra, the position in cases determined prior to the actual declaration of invalidity of s. 634(1) and (2) of the Code was not left unaddressed. Cory J., for the majority, emphasized at p. 104 that "[t]he accused may always attempt to demonstrate that there has been an abuse of the stand by provisions by the prosecution". In the case at bar, Doherty J.A. consequently sought to give concrete expression to this notion of abuse by suggesting the elements which, in his view, ought to be examined in determining whether the conduct of the Crown could be so considered. He formulated a two-step test (at p. 768):

In my view, the "abuse" described by Cory J. in Bain refers to both the misuse of the stand-aside power and the resultant negative consequences on the impartiality of the jury selected as a result of that misuse. Consequently in pre-Bain cases the court must address the Crown's use of its numerical advantage to shape the composition of the jury, and must also decide whether the jury selected by that process is one which would create a reasonable apprehension of bias in the mind of a reasonable observer. [Emphasis added.]

Thus, according to Doherty J.A., not only must there be an improper use by the Crown of its stand-by power, but the jury so selected must also, in practice, create a reasonable apprehension of bias in the mind of a reasonable and properly informed observer.

[49] In my view, with respect, a further nuance must be considered in this regard. The laying down of these twin requirements in effect creates a risk that each element will be considered separately and that the first element will become blurred by the second. In my view, it is in this way that the Court of Appeal fell into error. While Doherty J.A. certainly did note the fact that the Crown had used its numerical advantage to select an exclusively female jury, he did not truly take into account this element in his consideration of the second step. The real problem was in my view overlooked.

[50] In fact, when approached in this manner, an improper use by the Crown of its power to stand by may be condoned simply because the jury, when viewed quite apart from the selection process, does not give rise to a reasonable apprehension of bias. In my view, if there is conduct which is not to be condoned, it is the attempt by the Crown to fashion a jury which may seem favourable to it. The actual effect of such a prosecutorial practice on the fundamental characteristics of the jury, namely impartiality, representativeness, and to a lesser extent, competence, does not seem to me to be a determining element. It is rather a matter of gauging the anticipated effect of the conduct of the Crown in its selection of the jury on the perception of a reasonable observer as to the quality of the jury.

[51] The necessity of a heightened scrutiny on the behaviour of the Crown flows from the role which the Crown has always played in our judicial system. In this respect, it is helpful to refer once again to a passage of Rand J. in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, which marked a turning point in the jurisprudence of this Court on this issue. He made the following remarks at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.... The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

As I emphasized in R. v. Bain, supra, the Crown is party to the fairness of the trial which it also has an obligation to promote. Even though, practically speaking, the trial judge is the ultimate guardian of the fairness of the trial, this does not authorize the prosecution to neglect this obligation nor to undermine its importance.

[52] In the context of the selection of jurors, this obligation of the Crown is discharged through the wise use which it must make of the means at its disposal in order to select a jury which is impartial, representative and competent. In the same way as this power of selection must not be used for the purpose of obtaining a finding of guilt, the right to stand by must not be used to skew the composition of the jury or to gain a tactical advantage, but rather, only for the purpose of choosing the jury best qualified to judge a case. One must conscientiously strive to ensure that a jury possess the above-mentioned qualities.

[53] Of these three elements, impartiality is without doubt the most important. While plainly the jury's competence is a fundamental requirement, one must acknowledge that it is more difficult to exercise a direct influence on it through a mechanism such as stand-bys. Representativeness, on the other hand, is more susceptible to being affected by the selection process. The present case is an excellent example of this. As I observed in R. v. Bain, supra, representativeness is a characteristic which furthers the perception of impartiality even if not fully ensuring it. While representativeness is not an essential quality of a jury, it is one to be sought after. The surest guarantee of jury impartiality consists in the combination of the representativeness with the requirement of a unanimous verdict. Consequently, an apparent attempt by the prosecution to modify the composition of the jury so as to exclude representativeness, as occurred in this case, in itself undermines the impartiality of a jury.

[54] For these reasons, I would allow the appeal and order a new trial.

The following are the reasons delivered by

[55] McLachlin J. -- I agree with the reasons of Justice Sopinka. Like him, I would not find it essential to comment on the issue of jury selection, were it not for the reasons of Justice Gonthier on the issue with which I respectfully do not agree.

[56] Gonthier J., at p. 787, suggests that a jury must be "impartial, representative and competent". I agree that a jury must be impartial and competent. But, with respect, the law has never suggested that a jury must be representative. For hundreds of years, juries in this country were composed entirely of men. Are we to say that all these juries were for that reason partial and incompetent?

[57] To say that a jury must be representative is to confuse the means with the end. I agree that representativeness may provide extra assurance of impartiality and competence. I would even go so far as to say that it is generally a good thing. But I cannot accept that it is essential in every case, nor that its absence automatically entitles an accused person to a new trial.

[58] To say that a jury must be representative is to set a standard impossible of achievement. The community can be divided into a hundred different groups on the basis of variants such as gender, race, class and education. Must every group be represented on every jury? If not, which groups are to be chosen and on what grounds? If so, how much representation is enough? Do we demand parity based on regional population figures? Or will something less suffice? I see no need to start down this problematic path of the representative jury, provided the impartiality and competence of the jury are assured. Representativeness may be a means to achieving this end. But it should not be elevated to the status of an absolute requirement.

[59] In the case at bar there is no evidence that the Crown used its stand-by powers to the end of achieving a jury which would be favourable to the Crown. It is at least equally open to infer, as Doherty J.A. suggests ((1993), 1993 CanLII 8506 (ON CA), 14 O.R. (3d) 756), that its aim was to secure a jury which would be capable of judging the issues in an impartial and unbiased manner. So the suggestion of deliberate Crown abuse of the system is not made out.

[60] Nor is there any evidence that the jury chosen was, or could reasonably be perceived to be, other than impartial and competent. Indeed, one must presume the contrary, given that each party had the right to test each juror and object to any juror who might be partial or incompetent. The defence, in suggesting partiality, asks in essence that we infer from the fact that the jury was composed entirely of women that it would be partial to the Crown, or would be seen by a reasonable person to be partial to the Crown. These are inferences which I cannot draw. I see no reason to suppose that an all-woman jury cannot be as impartial as all-male juries have been presumed to be for centuries. Nor can I see any reason to suppose that an all-woman jury would be seen by a reasonable member of the public as favouring the Crown. The question is not whether people, or even a number of people, might for irrational reasons object to an all-woman jury. The question is rather whether such people could reasonably object to an all-woman jury, each member of which has been judged to be impartial and competent and, apart from gender, fit to judge the issues in the case. That question must, in my view, be answered in the negative. Therefore, I agree with the Court of Appeal below that no error was demonstrated in the selection of the jury.

[61] I would allow the appeal for the reasons set out by Sopinka J.

Appeal allowed, L'Heureux‑Dubé J. dissenting.

Solicitors for the appellant: Duncan, Fava, Schermbrucker, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.