SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ANDREW ROBIN KEENE
R U L I N G
BEFORE THE HONOURABLE JUSTICE G.M. MULLIGAN
on June 3, 2015, BARRIE, Ontario
APPEARANCES:
M. Flosman; S. Tarcza Counsel for the Crown
M. Eisen; M. Howatt Counsel for Mr. Keene
ONTARIO SUPERIOR COURT OF JUSTICE
T A B L E OF C O N T E N T S
Exam. Cr.- Re-
WITNESSES in-Chief Exam Exam
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
TRANSCRIPT ORDERED................................June 4, 2015
TRANSCRIPT COMPLETED..............................June 14, 2015
ORDERING COURT NOTIFIED...........................August 25, 2015
R U L I N G
MULLIGAN, J. (Orally):
[1] Counsel for the defence bring a pre-trial application seeking an order enabling defence to make an opening statement to the jury, not at the close of the Crown’s case and evidence, but immediately after the Crown’s opening address to the jury.
[2] Both Crown and defence acknowledge that the relief sought is within the discretion of the court, however, the Crown’s position is that this discretion ought not to be exercised in this particular case.
[3] The legislative history of the Crown’s right to make an opening statement was canvassed in R. v. D.(A.), 2003 43624 (ON SC), [2003] O.J. No. 4900, by Justice Dambrot. The Crown’s right to make an opening statement is rooted in the common law prior to the introduction of the first Criminal Code in 1892. In acknowledging the Crown’s right to make an opening statement, Justice Dambrot stated at para. 16:
As a result, it has been held, correctly in my opinion, that there is a discretion in the trial judge to permit counsel for the accused to open to the jury immediately after the Crown, but that this discretion should be exercised only in special or unusual circumstances.
[4] Before reviewing the judicial authorities on this point, it is useful to review the defence position as to why defence ought to be able to give an opening statement. Defence counsel acknowledge that they would not seek the right to make a further or second opening statement at the close of the Crown’s case. However, defence counsel was not prepared to undertake to the court to call evidence. Although that undertaking may have been given in other cases referred to by the defence, in the circumstances of this case the defence prefers to maintain the accused’s right not to disclose whether or not it will call evidence until the close of the Crown’s case.
[5] The defence refers to the unique circumstances of this case. In particular, the second count, indignity to a human body, may leave the defence no alternative but to invite the jury to find Mr. Keene guilty. This is because there are certain statements by Mr. Keene as well as corroborative evidence, perhaps making a finding of guilt a foregone conclusion. Defence position is this should not be the real focus for the jury. Rather, focus should be on the second degree murder count and the focus on intent relative to what the jury may hear about alcohol or drugs. Defence counsel also suggest that the jury should be considering the veracity of Mr. Keene’s statements to the undercover officers, as well as any statements he may have made which show any positive aspects of his relationship with Ms. Flanagan. These statements may well be introduced through the Crown’s examination-in-chief.
[6] Experienced defence counsel in this case acknowledges that if an opening statement is made, he is not entitled to use that as an opportunity to descend into argument or to suggest defence evidence which he has no intention of calling.
[7] The Crown’s position is that the issue is within the court’s discretion but it ought not to be exercised, especially if defence counsel will not undertake now to call defence evidence. The Crown submits that the jury will have a full understanding of the evidence as they hear it, this is not a lengthy or complex case, and this is not a case where fairness dictates that such an opportunity ought to be given, especially when weighed against the risks, which an improper defence opening may create for the trial. The risks are that the defence may advance argument or, at worst, create the prospect of a mistrial.
Analysis
[8] Both Crown and defence made reference to several cases where this issue has been discussed by trial judges, sometimes in cases involving special circumstances.
[9] The words of Nathanson, J. in R. v. Barrow, (1989) 48 C.C.C. (3d) 307, have often been repeated or relied upon subsequent cases. As Justice Nathanson said at para. 14:
I also agree with Mr. Justice Barr’s comments that it will be helpful to a jury to know near the beginning of the case what evidence will be given both in direct examination and cross-examination by Crown witnesses. Any conclusions to which members of the jury may have jumped after hearing the opening statement by the Crown can be off-set in a timely manner by the opening statement made immediately thereafter by counsel for the accused.
[10] Justice Nathanson continued at para. 15:
I think it would be helpful for the jury and, therefore, tend to yield a fairer trial and fairer result if the jury knew in listening to the witnesses as they are called by the Crown what it is that the defence expected to elicit from them. In this case, the defence is not prepared to say at this point in time whether it is going to call evidence. I do not think that it should be forced to do so.
[11] In R. v. Morgan, [1987] O.J. No. 5614, Justice McKinnon, in a lengthy case with numerous witnesses, stated at para. 6:
I think it would be most helpful to the jury to have the comments of defence counsel from the outset of the trial as to particular areas of evidence they might wish to consider and what potential defences might be available to the accused. In this context, trial fairness extends not only to the accused, but to the jurors themselves. In my view, a more fair trial will result because the jury shall have an increased awareness to the nuances of the evidence as it unfolds.
[12] In R. v. Sandham, 2008 Carswell Ont 9317, Justice Heeney refused to permit an opening by one defence counsel in a case which had multiple accused, some who sought an early statement, and some who opposed it. In coming to that conclusion, Justice Heeney noted that there were other means to accomplish the objectives by some of the defence counsel without making an opening statement. He also noted that defence counsel’s points could be properly drawn out through skilled cross-examination, potentially exposing weaknesses in the Crown’s case.
[13] The issue was canvassed by Justice Moreau in R. v. White, 2006 ABQB 883, [2006] A.J. No. 1565. The court noted the risks inherent in defence counsel’s early opening statement. The court referenced comments in Barrow, and noted in the circumstances of the case that the Crown confirmed it would not use the opening statement for argument. After balancing the factors, the court allowed a defence opening in circumstances where defence counsel undertook to call evidence.
[14] In R. v. MacDonald, [1999] O.J. No. 5444, Justice Howden considered a request by defence counsel but refused to admit an early opening by defence. After reviewing the various factors and principles in previous authorities, His Honour noted at para. 12:
I find that the cost of risks of acceding to the defence request in these circumstances exceed any slight benefit it might afford. Accordingly, I do not find this case as it stands now to be one where the order requested is desirable or necessary.
[15] In R. v. G.L., [2004] O.J. No. 5677, Justice Trafford considered the principles in previous cases, including the comments of Justice Howden in R. v. MacDonald. And he stated at para. 10:
...the governing consideration should be the fair trial interests of the defendant and the right to make full answer and defence as those terms are understood within s. 7 and 11(d) of the Charter.
[16] Justice Trafford continued at para. 11:
In the circumstances of this case, the interests of justice at large are promoted through a procedure whereby counsel, both for the Crown and G.L., advise the jury of the issues to be determined from their perspective and the evidence they anticipate in support of their position, before any evidence is called.
And he concluded at para. 12:
The jury’s better understanding of the evidence as the trial unfolds will, in turn, leave it in a better position to receive and understand the submissions of counsel and the charge at the conclusion of the trial. Deliberations should be more orderly and efficient. This procedure will ensure the fairness of the trial, looking at the process as a whole.
[17] In an earlier decision, R. v. Roby, [1998] O.J. No. 5518, Justice Paisley reviewed the issue in context of a potentially lengthy trial with numerous complainants and sexual assault counts. His Honour made reference to G. Arthur Martin’s comments on the importance of the address to the jury in closing the case. He then went on to say at para. 10:
While Mr. Martin was speaking of the closing address to the jury in the passage quoted above, in my view the effect of a succinct opening statement by the defence would serve the same purpose in a case such as this; that is to make apparent to the jury the nature of the defence in a cohesive way, several weeks or months before they might otherwise be able to appreciate it.
Conclusion
[18] Although defence counsel has not undertaken to call evidence, he has undertaken not to descend into argument if he makes an opening statement, immediately after Crown’s opening statement. Although this is not a retrial here, there is a strong paper trail in this case. There have been preliminary hearings as well as disclosure of video and audio recordings, and cross-examination of various officers at pre-trial hearings. Defence counsel argues that much of the defence position will be elicited not just in cross-examination, but in examination in-chief through the words of the accused and undercover officers in statements in the weeks prior to Mr. Keene’s arrest. The jury will therefore be alerted to pay particular attention to the examination-in-chief for these issues as well as the cross-examination that may follow.
[19] Defence counsel also points to a virtual concession of a finding of guilt with respect to the second count. If that is made known to the jury early in the proceedings, then distraction about that count will be avoided and the jury will focus on its main task, the first count, second degree murder. In addition, although this is not a lengthy trial, it may be several weeks before the jury hears from defence counsel if an early opportunity is not provided.
[20] I have considered and balanced the risks of an early statement by defence counsel against fairness issues and the special circumstances of this case. In my view, an early opening by defence targeted and focused in the direction he has suggested, without descending into argument before the jury, is appropriate in these circumstances.
[21] Therefore, application granted.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Debra Byrne, certify that this document is a true and accurate transcript in the recording of R. v. Andrew Robin Keene in the Superior Court of Justice, held at Courtroom No. 4, Barrie Courthouse, 75 Mulcaster Street, Barrie, Ontario, taken from Recordings 3811-04-20150603, which has been certified in Form 1.
August 25, 2015
Debra Byrne
Certified Court Reporter
Authorized Court Transcriptionist