R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113

R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113

Her Majesty The Queen Appellant

v.

Donald Wayne Cook Respondent

Indexed as: R. v. Cook

File No.: 25394.

Hearing and judgment: February 20, 1997.

Reasons delivered: April 24, 1997.

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 new brunswick

Criminal law ‑‑ Duties of Crown in conducting its case ‑‑ Crown not calling victim of attack as witness ‑‑ Facts established through other witnesses ‑‑ Whether Crown required to call certain witnesses as part of its case in chief ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 651(3).

The accused was charged with assault causing bodily harm of a male victim and two counts of sexual assault of a female victim after an incident in the woman’s apartment. The jury found him guilty of the first charge but was unable to reach a verdict with respect to the other two counts. The male victim did not testify. The Crown’s main witness was the woman whose evidence of the assault causing bodily harm was supported by other evidence which included: (1) DNA evidence establishing blood at the scene of the crime to be the victim’s; (2) the machete used in the assault; (3) evidence confirming a telephone call’s being received where help was sought; (4) evidence of the doctor attending the victim as to the wound’s being consistent with a machete attack; and (5) evidence of the woman’s mother, who had arrived at the apartment the morning after the incident took place, as to the accused’s presence in the apartment. No objection was raised at trial as to the victim’s not testifying and the accused declined to call any evidence. The conviction was overturned on appeal. At issue here is whether the Crown has a mandatory duty to call certain witnesses as part of its case in chief.

Held: The appeal should be allowed.

The Crown, for the criminal justice system to work well, must possess a fair deal of discretion extending to all aspects of the trial process. This discretion is not absolute and its improper exercise can result in the finding of an abuse of process. The Crown cannot adopt a purely adversarial role towards the defence, given its special function in ensuring that justice is served, but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. Part of this discretion involves the choice of which witnesses to call. Given the strong preference this Court has shown for deferring to the Crown’s discretionary authority, it would take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it.

The term “essential to the . . . narrative” in Lemay v. The King does not mean that all witnesses with relevant testimony have to be called by the prosecution. The jurisprudence does not suggest such an imposition. The term refers only to the Crown’s burden of proof in a criminal proceeding. Where the “narrative” is not adequately set forth, elements of the offence might not be properly proven and the Crown risks losing its case. Additionally, whether or not witnesses have been called is a factor appellate courts can consider in reviewing a decision as to the reasonableness of its verdict.

The main ground for opposing the Crown’s discretionary authority to call witnesses has historically been that of fairness. Three factors affecting fairness were raised: that the Crown’s not calling witnesses would cause a trial by ambush, that the ability to cross-examine would be lost and that an accused would be deprived of the right to address the jury last.

Since the Crown must now disclose relevant information it possesses (R. v. Stinchcombe), the defence cannot now be “ambushed” in the sense that it was unaware of potentially exculpatory evidence discovered by the Crown or even of material inconsistencies. These developments have extinguished any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward. The accused is not “ambushed” by the fact that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accused’s ability to call the witness.

The contemporaneous cross‑examination of a witness is not necessary to guarantee a fair trial. There is no prejudice in the respondent’s not getting a free opportunity to cross‑examine every potential witness whether or not the Crown wished to call them. An accused concerned about a deprivation of the opportunity to cross‑examine can rely, in an appropriate case, on the Canada Evidence Act. In the rare case the tactical disadvantage to the defence of calling a potentially hostile witness would be manifestly unfair, the trial judge would be entitled to consider this as a factor in deciding whether to call the witness him‑ or herself.

A failure on the Crown’s part to call a witness which would result in prejudice to the accused because of loss of the choice to address the jury last should not affect the Crown’s discretion to produce the witnesses it chooses. Rather, the failure to call a witness can be a factor for the trial judge to consider in deciding whether or not to call the witness him‑ or herself. This is a preferable, flexible solution which allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm.

The testimony of the complainant or victim should not be treated any differently from that of any other witness. In the vast majority of cases, the Crown, where it adduces nothing at all from the complainant or victim, will need some other evidence of a compelling nature to establish the accused’s guilt beyond a reasonable doubt. This burden will be even more difficult to overcome where there appears to be no good reason for refusing to call the witness. In many situations, legitimate questions would arise in the minds of the trier of fact where a victim was willing and able to testify, and yet without any explanation, was not called on behalf of the Crown. Still, there is no duty resting upon the Crown to call the witness.

Where the Crown does not call a given witness two problems can theoretically arise as a result. First, a question about disclosure could arise in that the Crown could be alleged to have discovered information damaging to its case. Here, the approach taken by this Court in cases where disclosure is not properly made should be applied. Second, where the Crown intentionally abuses its discretion in some manner by failing to call the witness, the trial judge can still consider the Crown’s conduct as a factor influencing his or her exercise of the discretion to call the witness, or alternatively, find that the Crown has committed an abuse of process.

The trial judge did not err in failing to inquire into why the Crown chose not to call the victim. The onus to prove the Crown’s misconduct lies upon the accused. Similarly, a finding of an abuse of process or “oblique motive” is only available where the accused can establish such conduct on a balance of probabilities. The calling of witnesses by the trial judge is a matter to be left to each judge’s discretion and should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings.

Cases Cited

Considered: Lemay v. The King, [1952] 1 S.C.R. 232; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Seneviratne v. R., [1936] 3 All E.R. 36; Adel Muhammed El Dabbah v. Attorney‑General for Palestine, [1944] A.C. 156; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. V. (J.) (1994), 91 C.C.C. (3d) 284; R. v. Finta, [1994] 1 S.C.R. 701; referred to: R. v. T. (V.), [1992] 1 S.C.R. 749; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Verrette, [1978] 2 S.C.R. 838; R. v. Power, [1994] 1 S.C.R. 601; United States of America v. Leon, [1996] 1 S.C.R. 888; R. v. O’Connor, [1995] 4 S.C.R. 411; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Gruenke, [1991] 3 S.C.R. 263; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Murdoch (1978), 40 C.C.C. (2d) 97; R. v. Jewell and Wiseman (1980), 54 C.C.C. (2d) 286; R. v. Oliva, [1965] 3 All E.R. 116; Whitehorn v. The Queen (1983), 152 C.L.R. 657; The Queen v. Apostilides (1984), 154 C.L.R. 563; R. v. Gallagher (D.N.) (1994), 48 B.C.A.C. 139; People v. Andre W., 404 N.Y.S.2d 578 (1978); R. v. Franks (1991), 67 C.C.C. (3d) 280; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Levogiannis, [1993] 4 S.C.R. 475; Cunningham v. Canada, [1993] 2 S.C.R. 143; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. B. (K.G.), [1993] 1 S.C.R. 740; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Guyatt (1994), 35 C.R. (4th) 178; R. v. Hutchinson (1995), 99 C.C.C. (3d) 88; R. v. Rose (J.) (1996), 90 O.A.C. 193; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Black (1990), 55 C.C.C. (3d) 421; R. v. Taylor (1970), 1 C.C.C. (2d) 321; R. v. Chaplin, [1995] 1 S.C.R. 727.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 9.

Criminal Code, R.S.C., 1985, c. C‑46, s. 651(3).

Authors Cited

Mewett, Alan W. Witnesses. Scarborough, Ont.: Carswell, 1995.

APPEAL from a judgment of a judgment of the New Brunswick Court of Appeal (1996), 178 N.B.R. (2d) 38, 454 A.P.R. 38, 107 C.C.C. (3d) 334, 49 C.R. (4th) 17, allowing an appeal from conviction by McLellan J. Appeal allowed.

Graham J. Sleeth, Q.C., and Christopher T. Titus, for the appellant.

Margaret Gallagher, for the respondent.

//L’Heureux-Dubé J.//

The judgment of the Court was delivered by

1L’Heureux-Dubé J. -- Which witnesses, if any, is the Crown obliged to call in a criminal proceeding? That is the main issue which must be resolved in this appeal. At the conclusion of the oral hearing, this Court allowed the appeal in a judgment rendered from the bench, with reasons to follow. These are the reasons.

Factual Background

2The facts of this case are quite straightforward. The respondent was charged with three indictable offences, each charge arising out of a series of events which allegedly took place on March 4, 1994. The first two charges ^__ sexual assault while armed with a weapon and uttering death threats ^__ concerned a woman, Lelayna Rebane, while the third assault causing bodily harm involved a separate male victim, Troy Dorbyson. After a one-day trial and nearly eight hours of deliberation, the jury was unable to reach a verdict on the charges involving Rebane. On the count of assault causing bodily harm, however, the respondent was convicted. It is solely this conviction which is the subject of this appeal.

3Rebane was the main witness for the Crown at trial. She testified that on March 4, 1994, at around 1:30 a.m., she returned home to her apartment after having spent the evening at a local night club with friends. As she expected, Dorbyson, a friend and former boyfriend of hers was waiting there, and they engaged in consensual sexual intercourse. At 2:30 a.m., she went to the bathroom and upon her return found the respondent and his cousin both of whom she knew previously in the kitchen arguing with Dorbyson. Neither man had been invited over.

4The argument apparently turned violent as the respondent began screaming at Dorbyson and telling him to leave the apartment. When he refused, the respondent stepped towards him, pulled out a large machete concealed behind his back, swung it, and struck Dorbyson in the arm. Blood poured from the wound onto the floor.

5Shortly thereafter, a friend of Rebane’s telephoned the apartment. Rebane’s testimony was that she picked up the phone and tried to tell her friend what was happening. As she did, however, the respondent cut the phone cord with the machete and began screaming at her. During the ensuing confusion, Dorbyson ran from the apartment. Immediately afterwards, the respondent forced Rebane into the bedroom and allegedly sexually assaulted her for a number of hours.

6Upon speaking to the police the next day, Rebane omitted the portion of the story relating to Dorbyson. As the police investigated the incident, however, they eventually became aware of Dorbyson’s presence at the apartment. Once they confronted Rebane with this, she informed them that there was an existing warrant for his arrest on an unrelated matter, and that in order “to protect him” she had not mentioned his role in the events.

7Dorbyson never testified at the trial. Evidence was led, however, by other witnesses which confirmed various elements of Rebane’s story. First, blood on the apartment floor was recovered which a subsequent DNA analysis identified as Dorbyson’s. Second, a machete was found by the police during a search of the home of the respondent’s cousin. Third, the phone cord was indeed severed and a friend confirmed having spoken to Rebane on the morning in question and having been suddenly disconnected. Fourth, Dorbyson’s doctor testified and confirmed that Dorbyson had been treated early on the morning of the alleged incident for a wound on his arm resembling that which might be inflicted by a machete. Finally, Rebane’s mother, who had arrived at the apartment later on the morning that the incident allegedly took place, confirmed the respondent’s presence at that time.

8No objection was raised at trial about the fact that Mr. Dorbyson did not testify, and the respondent declined to call any evidence. After a lengthy deliberation, the jury registered a conviction on the count of assault causing bodily harm but was unable to reach a verdict with regard to the other two counts.

New Brunswick Court of Appeal (1996), 178 N.B.R. (2d) 38

9The respondent appealed his conviction to the New Brunswick Court of Appeal. The question of law before the court was two-fold: was the Crown obliged to call Mr. Dorbyson as a witness, and if so, what were the consequences from the Crown’s failure to do so?

Ryan J.A. (Ayles J.A. concurring)

10Ryan J.A. began by reviewing the general discretion of the Crown to control its case. He recognized that prosecutors had a discretion to call, or not to call, witnesses as they considered necessary, a discretion recognized in numerous English and Canadian authorities, in particular Lemay v. The King, [1952] 1 S.C.R. 232.

11Still, Ryan J.A. expressed concern on the facts of this case, especially given the inability of the Crown to cite a reported decision wherein a competent and available complainant was not called as a witness. Ryan J.A. also held that accused persons had the right to be faced with their accusers. He found that the case law concerning the Crown’s discretion to call witnesses did not cover the actual party from or around whom the original complaint originated and that the Crown should have called this witness at least for the purpose of cross-examination by the accused.

12Moreover, he was concerned by the fact that at no time did Crown counsel give a proper explanation to the judge or jury as to why Dorbyson, the victim of the alleged assault, was not being called to testify. He found that the statements of Crown counsel about this issue during the trial likely would have left the jury puzzled especially given the closing address where certain disparaging allusions to the conduct of Dorbyson on the night of the events were made. He wondered how justice was served by maligning a non-witness and then inviting the jury to conjecture why the witness was not called. He noted that the other witness, Rebane, was called even though her evidence contained certain inconsistencies and omissions.

13In the alternative, Ryan J.A. stated that if he were wrong in holding that an obligation rested upon Crown counsel to produce the complainant as a witness, then there was a duty on the trial judge to see that it was done. He found that the trial judge should have asked why the complainant was not being called as a witness and that the prosecutor had a corresponding duty to satisfy the judge that the motive was not “oblique”. Once all the information was properly before the court, the judge could make an informed decision about whether to do nothing, to order the witness be called or to call the witness him- or herself.

14Ryan J.A. concluded that it would be a dangerous precedent to allow the prosecution to refuse to call the complainant or victim without an adequate reason. As the prosecution had not called the witness and the trial judge had not inquired into the reasons for this omission, he felt a miscarriage of justice had occurred, and accordingly allowed the appeal.

Hoyt C.J., dissenting

15Hoyt C.J. rejected the respondent’s submission that the Crown was obliged to call all material witnesses. On the contrary, he found that the case law strongly confirmed that the prosecution had a great deal of discretion in deciding which witnesses to call.

16Hoyt C.J. found that even if certain pre-Charter cases could somehow be construed to suggest that the Crown had a duty to call all material witnesses, that obligation had been removed by this Court’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326. In his view, the rationale supporting some sort of duty in the early cases rested upon preventing the defence from being denied access to potentially helpful witnesses. Hoyt C.J. reasoned that through the revamped process of disclosure set out in Stinchcombe, any such problem in that regard had ceased to exist. He concluded, at pp. 64-65, by commenting that in this case:

. . . the Crown was not obliged to call Mr. Dorbyson. There may have been a number of reasons why it chose not to call him. For whatever reason, there is no suggestion of bad faith or an oblique motive on the part of the Crown. The Crown satisfied its obligations by making full disclosure and, indeed, went further by making Mr. Dorbyson available should either the judge order the Crown to call him or Mr. Cook choose to call him.

Analysis

17Is there a mandatory duty resting upon the Crown to call certain witnesses as part of its case in chief? Surprisingly, despite several lengthy judicial pronouncements on this topic over the past 60 years it would appear that this issue is still the subject of some debate. While it could easily be argued that a number of cases have firmly rejected the notion of any Crown duty to call witnesses, a perusal of recent decisions demonstrates that propositions to the contrary can still be located, and that this continues to be a frequent ground of appeal. Hopefully, this judgment will tie up some of the remaining “loose ends”.

18I recognize, however, that this particular case brings a slightly different variable to the equation. Here, the witness who was not called was the very victim of the crime for which the respondent has been convicted. The respondent now alleges that the Crown’s failure to call this witness prejudiced him, and led to an unfair trial.

19At the outset of the analysis, I believe it is helpful to place the issue in its proper context. In essence, the rule suggested by the respondent would force the Crown to call certain witnesses (assuming they were available and competent), regardless of their truthfulness, desire to testify, or of their ultimate effect on the trial. It is immediately apparent that such a duty, if it were to be established, would have a major impact upon the Crown’s ability to conduct its own case. It would be a clear interference with the broad discretionary powers which are said to be within the purview of the Crown attorney, and which are at the very heart of the adversarial process. As a general principle, we have recognized that for our system of criminal justice to function well, the Crown must possess a fair deal of discretion. Moreover, this discretion extends to all aspects of the criminal justice system. As I stated for a unanimous court in R. v. T. (V.), [1992] 1 S.C.R. 749, at pp. 758-62:

There is no doubt that the Crown acting through the Attorney General, and in turn through his or her prosecutors, has a wide amount of discretion in the carriage of criminal cases.

. . . in the context of the Canadian Charter of Rights and Freedoms, this Court had occasion to consider whether such discretion constituted an affront to the principles of fundamental justice. In R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, La Forest J., speaking for the Court, states:

The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

I also wish to refer to the judgment of Giesbrecht Prov. Ct. J. in R. v. Poirier, Man. Prov. Ct., June 7, 1989, unreported, at pp. 11-12:

In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through to the conclusion of the trial.

I wish to be clear, however, that while the principle of prosecutorial discretion is an important precept in our criminal law, and exists for good reason, it is by no means absolute in its operation. It is now apparent, for example, that a stay of proceedings is available to prevent violations of the principles of fundamental justice and abuse of the court's process. [Emphasis added.]

See also: Smythe v. The Queen, [1971] S.C.R. 680; R. v. Verrette, [1978] 2 S.C.R. 838; R. v. Power, [1994] 1 S.C.R. 601; United States of America v. Leon, [1996] 1 S.C.R. 888.

20By the same token, however, as I stated in T. (V.), this discretion is not an absolute one. On the contrary, as this Court has stated on more than one occasion, the improper exercise of prosecutorial discretion can result in the finding of an abuse of process. This misconduct can take many different forms, and will often engage the rights set out in the Canadian Charter of Rights and Freedoms, although the exact manner in which this occurs will depend on the particular circumstances in the case: R. v. O’Connor, [1995] 4 S.C.R. 411.

21Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen, [1955] S.C.R. 16; Power, supra, at p. 616), it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 295, per L’Heureux-Dubé J. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country’s criminal law mechanism: R. v. Bain, [1992] 1 S.C.R. 91; R. v. Jones, [1994] 2 S.C.R. 229; Boucher, supra. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.

22It is in this light that I wish to examine the jurisprudence of the so-called Crown duty to call witnesses.

Duty to Call Witnesses

23The duty of the Crown to call every available witness is said to have its genesis in the Privy Council case of Seneviratne v. R., [1936] 3 All E.R. 36. In that case, the accused was charged with his wife’s murder. The Crown, in the course of putting forward its case, called a number of eyewitnesses to testify. In addition, it attempted to tender hearsay evidence from a number of other individuals for the purpose of corroboration. These persons were all on the list of witnesses to be called for the defence.

24The accused alleged that the Crown had a duty to call each of these persons as part of its case, as they were each eyewitnesses to the crime. While the Privy Council ultimately allowed the accused’s appeal on a narrow ground which does not concern us here, they flatly rejected the accused’s more general submission, indicating that as a rule the Crown did not have an obligation to call every eyewitness to the crime (at pp. 48-49):

Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. [Emphasis added.]

25This obiter ruling, apparently intended to clarify the existing law in this area, did not quite accomplish its desired task. Instead, it would seem to have heightened the level of confusion. It was primarily the combined effect of the two portions highlighted above which has given rise to the most concern. At first, the Privy Council appears to be approving of a broad discretion and a reluctance to impose a need for the Crown to call witnesses for both sides. In the second portion, however, it would seem that the Court is indicating that certain witnesses, those “essential to the ... narrative”, must be called in every case. On the surface at least, these opposing comments are not easily reconcilable.

26The Privy Council addressed the question again a few years later in Adel Muhammed El Dabbah v. Attorney-General for Palestine, [1944] A.C. 156. In this decision, the Privy Council appears to have resolved the issue in favour of the Crown’s discretion. Lord Thankerton, speaking for the court, went on in some detail about the Crown’s discretion in choosing which witnesses to call. Specifically, he noted at pp. 168-69:

. . . the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive. . . . Reference should also be made to an interlocutory remark by Lord Hewart C.J. in Rex v. Harris, ([1927] 2 K.B. 587, at p. 590) to the effect that “in criminal cases the prosecution is bound to call all the material witnesses before the court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.” In their Lordships’ view, the learned chief justice could not have intended to negative the long-established right of the prosecutor to exercise his discretion to determine who the material witnesses are.

27In Canada, the issue came squarely before the Supreme Court in Lemay, supra. The accused in that case was charged with trafficking in narcotics and the main evidence for the Crown was given by an undercover police officer. It was adduced at trial by the officer that an informer had also viewed the transaction and additionally that a second person was at the table where the sale had taken place. Neither of these witnesses was called by the Crown.

28The accused contended that the two witnesses were “essential to the ... narrative” and that, relying upon Seneviratne, the Crown was under an obligation to call them to testify. The Court rejected this ground of appeal (Cartwright J. (as he then was) dissenting) and stated that no such rule existed as claimed by the accused. Indeed, Kerwin J. (as he then was), for the majority, stated that Seneviratne, taken together with the later decision in Adel Muhammed, made it clear that discretion was the operative rule and that witnesses should generally be called by the party that wanted their evidence. Kerwin J. concluded by stating, at p. 241:

Of course, the Crown must not hold back evidence because it would assist an accused but there is no suggestion that this was done in the present case or, to use the words of Lord Thankerton, “that the prosecutor had been influenced by some oblique motive.” It is idle to rely upon such expressions as this or the one used by Lord Roche [in Seneviratne] without relating them to the matters under discussion but the important thing is that unless there are some particular circumstances of the nature envisaged, the prosecutor is free to exercise his discretion to determine who are the material witnesses.

29Despite what would seem to have been a rather clear statement on the issue,

cases of this nature continued to arise with surprising regularity. It would seem that in spite of Lemay, the question of exactly who could be said to be “essential to the . . . narrative” was still seen as a rather live issue. In a number of decisions, the wide discretion mandated by Lemay was tailored, and the Crown was either ordered to call witnesses or statements were made to the effect that such an order could be made in an appropriate case: see for example, R. v. Murdoch (1978), 40 C.C.C. (2d) 97 (Man. C.A.), at p. 116 per O’Sullivan J.A., dissenting; R. v. Jewell and Wiseman (1980), 54 C.C.C. (2d) 286 (Sask. Q.B.); R. v. Oliva, [1965] 3 All E.R. 116 (C.C.A.).

30The question of which witnesses were “essential to the . . . narrative” came before this Court again in R. v. Yebes, [1987] 2 S.C.R. 168. McIntyre J., for a unanimous bench, firmly rejected a tailoring of the Crown’s discretion and instead held that the term “essential to the . . . narrative”, at least in this context, meant no more and no less than that the Crown had to put forward enough witnesses so that the essential elements of the crime could be adequately proven. Hence, if the Crown decided not to call a witness it risked failing to meet the burden of proof incumbent upon it and losing the case. Specifically, McIntyre J. stated at pp. 190-91:

The remaining ground that the Crown failed to call a witness, Mrs. Yebes, essential to the unfolding of the narrative, must also fail in my view. The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason: see Lemay v. The King, supra. No such improper motive is alleged here. While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based. [Emphasis added.]

31In my view, the reasoning in this passage is abundantly clear. “[E]ssential to the . . . narrative” does not mean, as many have attempted to suggest, that all witnesses with relevant testimony have to be called by the prosecution. On the contrary, it refers solely to the Crown’s burden of proof in a criminal proceeding. Where the “narrative” of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the Crown risks losing its case. Additionally, where certain witnesses are not called, this can become a factor for an appellate court to consider in reviewing a decision to determine if a verdict was unreasonable: Whitehorn v. The Queen (1983), 152 C.L.R. 657 (Austl. H.C.); The Queen v. Apostilides (1984), 154 C.L.R. 563 (Austl. H.C.).

32I see no inherent flaw in this procedure and I believe it is supported by both law and policy. Given the strong preference this Court has shown for deferring to the Crown’s discretionary authority, it would, in my view, take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it. The main ground which has been put forth historically is that of fairness. It has been suggested that where the Crown fails to call a witness who has material knowledge of the facts in issue, the result could be, as Ryan J.A. stated at p. 50 in the case at bar, “excruciatingly close to trial by ambush”. In addition, Ryan J.A. also mentioned the prejudice suffered by an accused forced to call a witness who should have been called by the Crown. In essence, this revolves around the accused’s lack of opportunity to cross-examine the witness. The respondent has also raised a third factor in this appeal: that forcing the accused to call the witness forces the accused to give up the right to address the jury last. I will examine each of these rationales in turn.

Trial by Ambush

33While it may have been the case at one time that the failure to call witnesses resulted in some kind of unfairness to the accused in the sense that the accused was deprived of information crucial to his or her case, I feel little need to embark upon an examination of how this may have operated in the past as I believe recent changes to the law of disclosure and the accused’s ability to call witnesses have reduced considerably the potential for unfairness. For the purposes of this appeal, it is not necessary to enter into a detailed assessment of the Crown’s disclosure obligations. Suffice it to say that it is currently rather clear that the Crown has an obligation to disclose relevant information within its possession, as outlined by this court in Stinchcombe, supra.

34Given this evolution in the law, I fail to see how a case could arise nowadays where the defence would be “ambushed” in the sense that it was unaware of potentially exculpatory evidence or material inconsistencies with a witness’ story, discovered by the Crown. Were the Crown to come into possession of such information, it would be bound to disclose it.

35Indeed, this change in the law was explicitly recognized in Stinchcombe, supra, at p. 338. In that case, Sopinka J. spoke at one point of the historical recognition the courts had made of openness and fairness on the part of the Crown. In determining that disclosure was a desirable and natural evolution of the law, he referred to the dissenting opinion of Cartwright J. in Lemay, supra:

In my opinion there is a wholly natural evolution of the law in favour of disclosure by the Crown of all relevant material. As long ago as 1951, Cartwright J. stated in Lemay v. The King, [1952] 1 S.C.R. 232, at p. 257:

I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening the duty which rests upon counsel for the Crown to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise.... [Emphasis added by Sopinka J.]

This statement may have been in reference to the obligation resting on counsel for the Crown to call evidence rather than to disclose the material to the defence, but I see no reason why this obligation should not be discharged by disclosing the material to the defence rather than obliging the Crown to make it part of the Crown's case. [Emphasis by italics added.]

36I agree with this analysis. In my view, any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward was extinguished by developments in the law of disclosure. It is simply no longer correct to suggest that the defence will ever be “ambushed” by the Crown’s failure to call a material witness. If, for example, the Crown becomes aware that a given witness has made a statement inconsistent with his original one, it is perfectly proper not to call the witness to testify, especially where the Crown feels that the witness is likely to mislead the court: R. v. Gallagher (D.N.) (1994), 48 B.C.A.C. 139; People v. Andre W., 404 N.Y.S.2d 578 (C.A. 1978). The defence will not be prejudiced by this decision, as the Crown will still have to turn over the statement to the defence, and the defence will have the option to call the witness.

37In my view, there is simply no merit to the suggestion that the accused is “ambushed” by the fact that a given witness is not called. Any existing unfairness in this regard can be resolved through disclosure and existing remedies, coupled with the accused’s ability to call the witness: see Alan Mewett, Witnesses (1995), at p. 2-12; R. v. V. (J.) (1994), 91 C.C.C. (3d) 284 (Que. C.A.); R. v. Franks (1991), 67 C.C.C. (3d) 280 (B.C.C.A.).

Loss of the Ability to Cross-Examine

38The respondent also contends that if the rule is not upheld, it would force an accused to call witnesses and lose the right to cross-examine them. Ryan J.A. agreed with this proposition. In addition, he found at p. 56 that the Crown Attorney should not be making decisions about a witness’ credibility and depriving the trier of fact of the evidence:

Further, I would not be satisfied with an explanation by the prosecution that Dorbyson might be expected to testify that he fell and cut his arm on a beer bottle and therefore is an unreliable witness. Let the jury decide. It is the opportunity to cross‑examine, not the fact of the cross‑examination, that is crucial to the fairness of the hearing.

39On this point, I must say that I much prefer the recent decision of LeBel J.A. in V. (J.), supra, at pp. 287-88:

Crown counsel, of course, while bound by strict duties so as to ensure the preservation of the integrity of the criminal justice system, however must operate in the context of an adversarial procedure. Once he has satisfied the obligation to disclose the evidence, it is for him, in principle, to choose the witnesses necessary to establish the factual basis of his case. If he does not call the necessary witnesses or evidence, he exposes the prosecution to dismissal of the charge for having failed to establish its case completely and in accordance with the reasonable doubt rule. However, once this obligation has been met and if improper motives cannot be imputed to him, such as the desire, for example, to hide exculpatory evidence, as a general rule, he will be considered to have properly executed this part of his function in the criminal trial. The defence may, at that time, do its work and call its own witnesses, if it considers it appropriate to do so. In the tradition of the common law, on which Canadian criminal procedure is based, the case retains its adversarial nature and Crown counsel, while an officer of the court, does not act as defence counsel. [Emphasis added.]

I could not agree more. With respect, I fail to see why the defence should not have to call witnesses which are beneficial to its own case. The adversarial process functions on the premise that it is the obligation of the Crown to establish a case beyond a reasonable doubt against the accused. Once this threshold has been surpassed, however, it is up to the accused to call evidence or face conviction: R. v. Noble, [1997] 1 S.C.R. 874. The adversarial nature of the trial process has been recognized as a principle of fundamental justice (R. v. Swain, [1991] 1 S.C.R. 933). As such it should be construed in a way that strikes a fair balance between the interests of the accused and those of society: R. v. Levogiannis, [1993] 4 S.C.R. 475; Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 148; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. In my view, placing an obligation upon the Crown to call all witnesses with information bearing on the case would disrupt the inherent balance of our adversary system. I note, however, that the accused is also not obliged to call the witness. As I propose to expand upon, there are other options which are available to the accused in an appropriate case including, but not limited to, asking the trial judge to call the witness, commenting in closing on the witness’ absence, or asking the trial judge to comment.

40The respondent also attempts to buttress his submission by claiming that there exists in Canada a “right to face one’s accuser”, and that denying an opportunity to cross-examine the victim of the crime deprives the accused of that right and makes a fair trial impossible.

41On more than one occasion, this Court has clearly stated that the contemporaneous cross-examination of a witness is not necessary to guarantee a fair trial: R. v. B. (K.G.), [1993] 1 S.C.R. 740; Levogiannis, supra. Moreover, I cannot see how this right, even if it did exist, would be engaged in these circumstances. A witness who is not called at trial does not offer any evidence against an accused. In that sense, the witness is not actually “an accuser” at all, and the accused’s actual ability to cross-examine has not been impeded in any way whatsoever. In this case, for example, the main witness was the complainant, Rebane. The respondent had an adequate opportunity to cross-examine her and the other Crown witnesses. In my view, there is no prejudice in the simple fact that the respondent did not get a free opportunity to cross-examine every potential witness in the case whether the Crown wished to call them or not. I find no merit to this submission.

42It is also worth noting that an accused concerned about a deprivation of the opportunity to cross-examine would also be able to rely, in an appropriate case, upon the provisions of s. 9 of the Canada Evidence Act, R.S.C., 1985, c. C-5. Suppose for example that the Crown chose not to call a witness because he or she had made statements inconsistent with the Crown’s case. If the defence wished to have this evidence at trial, it could call the witness. If he or she did not testify in a manner consistent with the pre-trial statements and gave evidence adverse to the defence, the defence could attempt to engage the Canada Evidence Act and cross-examine the witness. If, of course, the witness gave favourable testimony, there would be no need to cross-examine at all. This would suffice in the vast majority of cases. I recognize, however, that there may be rare cases in which the tactical disadvantage to the defence of calling a potentially hostile witness would be manifestly unfair. Where this occurred, the trial judge would be entitled to consider this factor in deciding whether to call the witness him- or herself.

43In summary, I am of the view that existing procedures adequately protect against unfairness suffered by the accused in this regard. It cannot therefore be said, subject to the exception noted above, that the failure of the Crown to produce a witness unfairly deprives the accused of the ability to cross-examine.

Right to Address the Jury Last

44Finally, the respondent has submitted that the Crown’s failure to call essential witnesses would force the defence to do so, and, as a result, effectively remove the right not to call evidence and address the jury last, as set out in s. 651(3) of the Criminal Code, R.S.C., 1985, c. C-46. He contends that this would cause considerable prejudice.

45In support, the respondent relies on a passage from R. v. Finta, [1994] 1 S.C.R. 701, at p. 861, where Cory J., in speaking of the trial judge’s discretion to call witnesses, stated for the majority at pp. 861-62:

In a case where the trial judge has found that the evidence in question should have been called by the Crown, the issue of who addresses the jury last is indeed relevant. If this were not so it would be open to the Crown not to call certain evidence in order to force the defence to give up its right to address the jury last.

46This statement must, of course, be considered in its proper context. I do not agree with the respondent that Cory J. was proposing that, in all cases, failure of the Crown to call a witness will result in prejudice to the accused because of the resulting loss of the choice to address the jury last. On the contrary, Cory J. was clearly referring to the trial judge’s ability to consider this reality as a factor to weigh in deciding whether to exercise his or her discretion to call a witness in a given case.

47I am reluctant to embark upon a wholesale investigation into the exact degree of unfairness which can be suffered by an accused because of the order of closing addresses, especially given the conflicting judgments in the courts below and the fact that this issue will be before this Court shortly: see for example, R. v. Guyatt (1994), 35 C.R. (4th) 178 (B.C.S.C.); R. v. Hutchinson (1995), 99 C.C.C. (3d) 88 (N.S.C.A.); R. v. Rose (J.) (1996), 90 O.A.C. 193, leave to appeal granted February 6, 1997 (S.C.C.). In any event, it is not necessary to do so. It is clear that the degree to which an accused is prejudiced by the order of closing addresses will vary upon the facts of each case, and most importantly by whether or not he or she already planned to call witnesses. For this reason, I do not feel that this factor is sufficient to warrant impeding the Crown’s discretion to produce witnesses as the Crown chooses. Rather, as Finta points out, it can be a factor for the trial judge to consider in deciding whether or not to call the witness him- or herself. In my view, this is a preferable, flexible solution. This process allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm. As such, I believe this is the route which should be followed.

Duty to Call the Victim

48In light of the analysis set out above, it remains to be seen whether a different conclusion should be reached as regards the victim of the criminal act. Ryan J.A., for the majority of the Court of Appeal, felt at pp. 49-50 that the victim of a crime was in a particular position and should be exempted from the general rule set out in Lemay:

The complainant/alleged victim, Dorbyson, is not a collateral witness but the very subject of the indictment against Cook. The cases cited by the prosecution do not extend the discretionary power of the prosecution to cover the actual party from or around whom the complaint originates. An accused ought not to be placed in the untenable position of having to call the complainant as his or her own witness in order to obtain exculpatory or mitigating evidence that is not otherwise obtainable. To do so smacks excruciatingly close to trial by ambush. I say this irrespective of whether the prosecutor has an oblique motive in not calling the complainant. The prosecutor should call the complainant at least for the purpose of cross‑examination by an accused.

49In my view, this reasoning is directly contrary to the aforementioned cases of Yebes, supra, and Lemay, supra. Frankly, I am unable to see why the testimony of the complainant or victim should be treated differently from that of any other witness.

50Indeed, in the vast majority of cases, the Crown will ignore calling the complainant or victim at its own peril as this testimony would be crucial to prove the offence in question. This is, of course, the very essence of this Court’s decision in Yebes. The burden of proof beyond a reasonable doubt, as it is designed to, operates very much in the accused’s favour in this regard.

51Where the Crown adduces nothing at all from the complainant or victim in a given case, it goes without saying that the Crown will need some other evidence of a compelling nature to establish the accused’s guilt beyond a reasonable doubt. This burden will be even more difficult to overcome where there appears to be no good reason for refusing to call the witness. I would think that, in many situations, legitimate questions would arise in the minds of the trier of fact where a victim was willing and able to testify, yet without any explanation, was not called on behalf of the Crown. Indeed, in a situation where the failure of the complainant or victim to testify was completely unexplained, I would think that it would be open to the trial judge if he or she so chose, to instruct the members of the jury that they could adversely consider this absence of testimony in deciding upon whether or not the Crown had proved its case. I wish to make it clear, however, that this would not be the case where the Crown satisfies the trial judge that the complainant or victim is unavailable to testify for legitimate reasons.

52In summary, therefore, I see no unfairness from a Crown’s decision to avoid calling a complainant or victim in an appropriate case. It is a tactical judgment which should properly be left to the discretion of the individual Crown.

The Canadian Charter of Rights and Freedoms

53Strictly speaking, the Charter was not in issue before this Court; mention of it, however, was made by Ryan J.A. in the Court of Appeal where he stated at p. 50 that had they been raised, “formidable [Charter] arguments [could] be mustered in support of [the respondent’s] position that, if available and competent, the Crown must produce the complainant as a witness, at least for the purpose of cross-examination”.

54While it was not raised as a separate avenue of argument, I would note that this Court has stated on more than one occasion that the development of the common law should reflect the values and principles of the Charter: Cloutier v. Langlois, [1990] 1 S.C.R. 158, at p. 184; R. v. Salituro, [1991] 3 S.C.R. 654, at p. 675. In addition, the main thrust of the respondent’s arguments was that the Crown’s failure to call the victim as a witness caused his trial to be unfair and impeded his right to make full answer and defence. I have rejected these submissions in so far as they support the establishment of a common law duty upon the Crown and, in my view, the reasoning set out above would likely be consistent with an analysis under the Charter as well, although I would leave this issue until it formally arises.

Summary on the Crown’s Duty to Call Witnesses

55In summary, I conclude that there is no duty upon the Crown to call witnesses nor a more specific duty to call the complainant or victim. Decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused.

56It has also been suggested in at least two decisions (R. v. Black (1990), 55 C.C.C. (3d) 421 (N.S.C.A.); R. v. Taylor (1970), 1 C.C.C. (2d) 321 (Man. C.A.)) that the Crown might wish to call witnesses with material evidence and simply make them available for cross-examination. I would certainly not go so far as to impose such a requirement, nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.

57Before turning to the additional issue raised by the respondent, I wish to comment briefly upon the judicial term “oblique motive”. As seen from the analysis of the case law set out above, this term has garnered a prominent place in the jurisprudence. It seems to me that where the Crown does not call a given witness two potential problems can theoretically arise as a result. First, there could be a question about disclosure in that it is alleged that the Crown has discovered information, or perhaps some type of statement made by the witness which would damage its case, and has not disclosed it to the defence. In this scenario, the proper method of analysis is to apply the approach taken by this Court in cases where disclosure is not properly made: see O’Connor, supra.

58A second possibility is where the Crown intentionally abuses its discretion in some manner by failing to call the witness. While this has traditionally been referred to as being an “oblique motive”, it would seem to have much in common with the doctrine of abuse of process. Indeed, given that the finding of an “oblique motive” by its very name implies improper conduct on the part of the Crown, I feel it is unlikely that such a finding could arise without there being a legitimate claim of an abuse of process. This does not, of course, preclude the trial judge from considering conduct of the Crown which, although falling short of an abuse, could be one factor influencing him- or her to exercise the discretion to call the witness. It is, in fact, to the role of the trial judge that I now turn.

Role of the Trial Judge

59In the alternative to his main submission, the respondent has also suggested that the majority of the Court of Appeal was correct in concluding that the trial judge erred in not inquiring into the reasons why the Crown chose not to call Dorbyson, despite no such demand being made. Ryan J.A. set out his reasoning as follows, at pp. 51-53:

In my opinion there is a duty on the trial judge to inquire why the complainant is not being called. Here, the trial judge asked "if" but not "why not". I think it was his duty to do so and that there was a corresponding duty on the prosecutor to satisfy the judge that his reason was not "oblique" as mentioned in all the precedents including Lemay.

In fact, many trial judges have ordered the prosecution to call certain witnesses and if refused, have called the witnesses themselves. Unless the judge or the judge and jury are informed of the reason for the failure to call such an obvious witness how can the court know the good faith of the prosecution or that the refusal or failure to call the complainant is not an attempt to unduly influence the jury? The prosecution must avoid giving any impression that it is endeavouring to obtain a conviction by the suppression of evidence favourable to the accused. . . .

In any event, I conclude that there is a duty on a trial judge to inquire why a complainant is not being called as a witness. Fortified with the answer the trial judge can determine the next step, that is, whether to order that the witness be called or to call the witness himself or herself.

Without this knowledge, the trial judge cannot make an informed decision as to whether the court should call a particular witness. There is, therefore, in my opinion, a duty on the trial judge to at least inquire why a complainant, if competent and available, is not called by the prosecution.

60While this proposition might appear rather sound on the surface, I am of the view that it does not withstand close scrutiny. In essence, Ryan J.A. felt a mandatory inquiry on the part of the trial judge was necessary for two reasons: (1) to determine whether or not the Crown possesses an “oblique motive”, and (2) to get a full appreciation of whether he or she should exercise the discretion to call the witness.

61With respect, I have difficulty with both of these concepts. Regarding the first proposition, I have already concluded that the concept of “oblique motive” is better understood as either an issue of a failure to disclose evidence or akin to an abuse of process. In both scenarios, it is abundantly clear that the onus to prove the Crown’s misconduct lies upon the accused. As Sopinka J. stated for a unanimous Court in R. v. Chaplin, [1995] 1 S.C.R. 727, at p. 743, with respect to disclosure:

Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. [Emphasis added.]

See also O’Connor, supra, at p. 477, per L’Heureux-Dubé J.

62Similarly, it is clear that a finding of an abuse of process will only be available where the accused is able to establish such conduct on a balance of probabilities: O’Connor, supra, at p. 461. Given that onus, I fail to see why the trial judge should as a matter of course become involved in determining whether the Crown has acted improperly. Assuming it is possible to find an “oblique motive” without there being an abuse of process, I see no reason why the onus to demonstrate this motive should operate differently.

63With regard to Ryan J.A.’s second concern, aside from the comments I have already made, I do not feel a need to expand at length upon the trial judge’s discretion to call witnesses given that this issue was extensively canvassed by the reasons of Cory J. in Finta, supra. As he stated in that case, the calling of witnesses by the trial judge is a matter to be left to each judge’s discretion, and that it should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings: Finta, supra, at p. 861. A number of factors, some of which I have already discussed, will have to be considered by the trial judge in determining whether or not to exercise this discretion, but the guiding principle is that in doing so it must be “essential . . . in order to do justice in the case”.

64A mandatory inquiry into the reasons for which the Crown decided not to call the witness does not seem to be in keeping with the intent and spirit of Finta. While such an inquiry might be appropriate in a given case, I would leave that to the discretion of the trial judge.

Application to the Facts of this Case

65As I have stated above, the Crown has a complete discretion in deciding which witnesses it will call as part of its case. As a result, I can find no error in the fact that it chose not to call Dorbyson to testify against the respondent. No complaints were raised about the conduct of the Crown; nor were there any allegations of material non-disclosure.

66In addition, I cannot conclude that the trial judge erred in failing to call the witness himself. As Cory J. stated in Finta, supra, at p. 857, this discretion “should only be exercised rarely and then with extreme care, so as not to interfere with the adversarial nature of the trial procedure or prejudice the accused”. Applying the guidelines set out in that case, I cannot say that the trial judge erred in deciding not to call the witness. My conclusion is strengthened in this regard by the fact that defence counsel at trial made several references in his closing address to Dorbyson’s failure to testify, and he exploited this factor to its utmost in urging the jury to find a reasonable doubt. In my view, this bolsters the conclusion that the respondent, in truth, suffered no prejudice from the Crown’s failure to call the witness. Additionally, for the reasons set out above, there was no need for the trial judge to inquire into the Crown’s motivations for not calling Dorbyson.

67Finally, the respondent has argued, although not particularly strenuously, that the Crown’s failure to call Dorbyson as a witness resulted in an “unsafe verdict” in that the “whole of the story” was not put before the jury. Essentially, he contends that this decision not to call Dorbyson makes it impossible to conclude that the Crown actually proved its case, and that the jury’s verdict to the contrary was an unreasonable one. I am unable to agree with this submission. After a review of the material which was admitted in this case, I am of the view that there was a great deal of evidence upon which a reasonably instructed jury could conclude that the respondent had committed the crime for which he was charged.

Disposition

68In the result, I conclude that the Court of Appeal erred in setting aside the jury’s verdict. As was indicated at the oral hearing, I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction.