COURT FILE NO.: CR-18-50000319 DATE: 20181220 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – DAMION LEWIS
Patrick Travers for the Crown Alana Page for the accused HEARD: December 3, 2018
RULING ON CROWN'S APPLICATION TO REOPEN CASE
FAVREAU J. :
Introduction
1The Crown seeks to reopen its case in order to prove the defendant Damion Lewis' date of birth.
2The eight counts against Mr. Lewis include four charges that arise from his possession of a firearm.
3As part of its case, the Crown has presented an affidavit stating that a search was conducted of a database kept by the Chief Firearms Office, and that there are no records of a Firearm Acquisition Certificate or License issued to "Damion Lewis, date of birth of the 10th of September, 1982".
4During closing arguments, Mr. Lewis' lawyer argued that the Crown has not proven that Mr. Lewis' date of birth is September 10, 1982, and therefore the Crown has not established that Mr. Lewis does not have the required certificate or license to possess the firearm.
5During its closing arguments, the Crown argued that Mr. Lewis' date of birth was established through the defence's concession about Mr. Lewis' identity. Alternatively, the Crown sought to reopen its case to prove Mr. Lewis' date of birth.
6In my view, it is not open to the Crown to argue that it has proven the case against Mr. Lewis, and then, as an alternative argument, to seek to reopen its case. The issue of whether the Crown should be allowed to reopen its case must be decided before I decide whether the Crown has proven the charges against Mr. Lewis.
7Therefore, this ruling only addresses the issue of whether the Crown should be permitted to reopen its case for the purpose of proving Mr. Lewis' date of birth.
Factual background
8For the purpose of addressing the Crown's request to reopen its case, I am providing a brief outline of the circumstances giving rise to the charges against Mr. Lewis. This overview is based primarily on uncontested facts and is not meant to consist of any factual findings required for the purposes of deciding whether Mr. Lewis is guilty of the charges against him.
9Mr. Lewis was arrested on February 6, 2017.
10The charges against Mr. Lewis arise from one incident that allegedly took place around January 10, 2017, and from events that took place on February 6, 2017.
11Late in the morning of February 6, 2017, Mr. Lewis attended a residential house at 33 Greendale Avenue. The occupant of the house at the time was Berta Cabral. Ms. Cabral called the police, saying that she had been previously robbed in January, and that a man was trying to open her door. Once the police arrived at the house, Ms. Cabral stated that the man had threatened her with a gun. She also showed them a video taken from the front of her house showing the interaction with the man she claimed was trying to open her door.
12Later that day, the police were able to find, identify and arrest Mr. Lewis. At the time of the arrest, the police searched Mr. Lewis, and found a handgun and some ammunition.
13There is no dispute that the person who attended Ms. Cabral's house and who was arrested on February 6, 2017 is Mr. Lewis.
Procedural background
14The trial commenced on November 13, 2018. At the beginning of trial, Mr. Lewis re-elected to be tried by a judge sitting without a jury.
15Mr. Lewis faces eight charges. The first charge relates to threats Mr. Lewis is alleged to have made to Ms. Cabral around January 10, 2017, which she disclosed during her police interview on February 6, 2017. The second and third charges arise from allegations that Mr. Lewis threatened Ms. Cabral on February 6, 2017, when he attended her house. The fourth charge is an allegation that Mr. Lewis stole a piece of mail from Ms. Cabral's mailbox on February 6, 2017.
16The other four charges arise from the handgun found in Mr. Lewis' possession at the time of his arrest. The specific charges are as follows:
Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did unlawfully did have in his possession a loaded prohibited firearm, to wit: a handgun, while he was not the holder of an authorization or licence under which he may possess the said firearm in that and he was not the holder of a registration certificate for the said firearm, contrary to Section 95(2) (a) of the Criminal Code.
Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did possess a prohibited firearm, to wit a handgun, knowing that he was not the holder of a license and a registration certificate for the firearm contrary to section 92(3(a) of the Criminal Code.
Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did possess a prohibited firearm, to wit: a handgun, without being the holder of a license and a registration certificate under which he may possess it contrary to section 91(3) (a) of the Criminal Code.
Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did without being authorized under the Firearms Act, carry a concealed weapon, to wit a handgun contrary to section 90(2(a) of the Criminal Code.
17At trial, the Crown called three witnesses: Ms. Cabral and two police officers involved in the investigation and arrest of Mr. Lewis on February 6, 2017.
18In addition to these witnesses, with the defence's consent, the Crown filed two affidavits and a Certificate of Analysis dealing with the firearms charges.
19The Certificate of Analysis identifies the handgun and ammunition, and certifies that the handgun is a prohibited firearm as defined under section 84 of the Criminal Code.
20An affidavit sworn by Angie Mcklusky, who is employed by the Royal Canadian Mounted Police, attests that she searched the Canadian Firearms Registry, and that she did not find any record of a registration certificate for the firearm found on Mr. Lewis.
21The other affidavit was sworn by Michelle Charbonneau, who is a Firearms Officer with the Chief Firearms Office of Ontario. Ms. Charbonneau's affidavit includes the two following paragraphs dealing with her search of the Canadian Firearms Information System for a Firearms Acquisition Certificate or License issued to Mr. Lewis:
At the request of Special Constable Bruce Finn, Guns and Gangs task Force, Toronto Police Service, on the 16th of November, 2018, I searched the Canadian Firearms Information System for any record of a Firearms Acquisition Certificate or a Licence, issued to Damion LEWIS, date of birth of the 10th of September, 1982 that was valid including during the alleged offence date of the 6th of February, 2017.
My search of the Canadian Firearms Information System revealed no record of any Firearms Acquisition Certificate or License issued to Damion LEWIS, date of birth of the 10th of September, 1982 that was valid including during the alleged offence date of the 6th of February, 2017.
22The evidence put forward by the Crown also included an agreed statement of facts and an admission. The agreed statement of facts deals with the call placed by Ms. Cabral to the police on February 6, 2017. The admission addresses the continuity of the firearm seized by the police at the time of Mr. Lewis' arrest.
23Once the Crown completed its case, the defence only called one witness, who was a police officer involved in investigating the break and enter at Ms. Cabral's house in January 2017. There is no dispute that his evidence is only relevant to the first three charges against Mr. Lewis that allege that Mr. Lewis threatened Ms. Cabral. His evidence is not relevant to counts 5 to 8 dealing with the firearm possession charges.
24The defence closed its case on the morning of November 24, 2018. At that time, based on prior discussions with counsel, the intention was for the defence and the Crown to make closing submissions the following day, with the defence going first.
25However, after the defence's witness completed his testimony on November 24, 2018, Crown counsel advised that there had been a death in his family and that he would not be available to make closing submissions the following day. He requested permission to make submissions in writing to be directed to my attention by the end of the day on November 24th. While I offered the option of bringing the parties back for closing arguments at a later date, Crown counsel indicated that he was content to proceed with written submissions and that someone from his office would attend during the defence's closing submissions the next day. The defence agreed to this proposal.
26With commendable civility and professionalism, defence counsel then offered to provide an outline of her closing submissions in open Court so that the Crown would be aware of the defence's positions on the eight charges against Mr. Lewis when preparing written submissions. For the purpose of this ruling, only one aspect of the positions outlined by defence counsel on November 24th is relevant. Defence counsel indicated that it was Mr. Lewis' position that the Crown had not proven counts 5 to 8 because the Crown had not established that Mr. Lewis' date of birth is September 10, 1982, which, as reviewed above, was the date of birth used to verify that Mr. Lewis did not have a Firearms Acquisition Certificate or Licence at the time of the offence.
27At the time when defence counsel presented this position, the Crown did not raise any objections or concerns. However, later that afternoon, I received the Crown's written submissions. In relation to counts 5 to 8, Crown counsel indicated that he had been taken by surprise by the defence's position that Mr. Lewis' date of birth had not been proven. He indicated that he was not in a position to address the issue in his written closing submissions. He stated that he wanted an opportunity to review the transcripts from the two police officers called as witnesses by the Crown at trial, and that the Crown may seek to to reopen its case.
28On November 25, 2018, rather than hearing closing submissions from defence counsel, I adjourned the matter to December 3, 2018, when Crown and defence counsel would both be available to attend before me to address the issues raised in the Crown's written closing submissions.
29At the beginning of the hearing on December 3, 2018, there was no indication to me that the Crown intended to request an opportunity to reopen its case to address the date of birth issue. Defence counsel made closing arguments on all issues, after which the Crown commenced its closing arguments. He first addressed counts 1 to 4, making full arguments on those charges. He then started his argument on counts 5 to 8, making an argument that Mr. Lewis' date of birth was included in the defence's concession regarding Mr. Lewis' identity, and stating that the Crown's alternative argument was that the Crown should be allowed to reopen its case to prove Mr. Lewis' date of birth. Defence counsel then made reply submissions, including disputing the Crown's position that it should be permitted to reopen its case.
30At the conclusion of the hearing, I expressed concern about the Crown's request to reopen its case being presented as an alternative argument. I indicated that I would rule separately on the issue of whether the Crown should be permitted to reopen its case, before delivering any judgment on whether the Crown has proven the charges against Mr. Lewis.
Applicable principles
31In R. v. P.(M.B.), [1994] 1 S.C.R. 555, at para. 20, the majority of the Supreme Court of Canada held that the key issue in deciding whether the Crown should be allowed to reopen its case is whether the accused "will suffer prejudice in the legal sense", holding as follows:
The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether the accused will suffer prejudice in the legal sense -- that is, will be prejudiced in his or her defence. A trial judge's exercise of discretion to permit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice are served.
32The Court went on, at para. 21, to state that the prejudice to the accused increases as the trial progresses, identifying three different stages of trial:
Traditionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice and injustice to the accused. That is, a court's discretion with respect to reopening will be exercised less readily as the trial proceeds. The point is illustrated by taking the following three stages in a trial:
(1) before the Crown closes its case,
(2) immediately after the Crown closes its case but before the defence elects whether or not to call evidence (most commonly, this is where the defence has moved for a directed verdict of acquittal for failure by the Crown to prove some essential ingredient of its case), and
(3) after the defence has started to answer the case against it by disclosing whether or not it will be calling evidence.
33The Court then indicated that different tests apply to a request by the Crown to reopen a trial depending on the stage at which the request is made.
34At paras. 21 and 22, the Court described the tests to be applied at the first and second stages as follows:
21 In the first phase, before the Crown has closed its case, a trial judge has considerable latitude in exercising his or her discretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected. Any prejudice to the accused can generally be cured at this early stage by an adjournment, cross-examination of the recalled witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck.
22 Once the Crown actually closes its case and the second phase in the proceeding is reached, the trial judge's discretion to allow a reopening will narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences will heighten. The test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversight or inadvertent omission by the Crown in the presentation of its case, provided of course that justice requires it and there will be no prejudice to the defence.
35The majority went on to explain that, once the defence has started its case, the Crown's opportunity to reopen its case is very narrow. The Court, at paras. 41-42, provided the rationale for this restriction as follows:
41 What is so objectionable about allowing the Crown's case to be reopened after the defence has started to meet that case is that it jeopardizes, indirectly, the principle that an accused not be conscripted against him- or herself. In Dubois, this Court interpreted the privilege against self-incrimination contained in s. 13 of the Charter as preventing the Crown from indirectly conscripting the accused to defeat himself by using his previous testimony against him -- something which the Crown is directly prohibited from doing under s. 11(c) of the Charter. In my opinion, a similar danger is involved when the Crown seeks to reopen its case after the defence has begun to answer the case against it -- that is, there is a real risk that the Crown will, based on what it has heard from the defence once it is compelled to "meet the case" against it, seek to fill in gaps or correct mistakes in the case which it had on closing and to which the defence has started to respond. To ensure that this does not in fact happen, the Crown should not, as a general rule, be permitted to reopen once the defence has started to answer the Crown's case.
42 In other words, I agree with respondent's counsel in this case that there comes a point when "enough is enough", and a mistake or omission by the Crown must necessarily become fatal. Once the defence starts to "meet the case", thus revealing its own case, the Crown should, except in the narrowest of circumstances, be "locked into" the case which, upon closing, it has said the defence must answer. The Crown must not be allowed in any way to change that case. To hold otherwise would be to undermine the guiding principle against self-incrimination.
36Ultimately, at para. 44, the Court gave two examples of circumstances where the Crown would be allowed to reopen its case after the defence has started its case:
44 I have suggested that it will only be in special circumstances that a trial judge should entertain an application by the Crown to reopen after the defence has begun answering the case against it. Two examples of such circumstances have been provided: where conduct of the defence has contributed to an omission by the Crown, or where matters of form rather than substance are involved. There may be other exceptional circumstances in which reopening will be justified.
37In R. v. S.G.G., [1997] 2 S.C.R. 716, the Supreme Court revisited the issue of when the Crown should be allowed to reopen its case. At paras. 33-34, the majority reinforced the principle that the Crown's opportunity to reopen its case is very narrow at the third stage of the trial:
33 The narrowness of the trial judge's discretion to reopen the Crown's case at this late stage of the trial cannot be overemphasized. In P. (M.B.), at p. 573, Lamer C.J. gave two examples of the very limited circumstances in which the Crown's case might be reopened during the third phase. In the first example, the conduct of the defence directly or indirectly contributed to the Crown's failure to lead the particular evidence before the close of its case. In the second example, the Crown made an omission or mistake on a non-controversial issue that was purely formal or technical, and had nothing to do with the substance of the case.
34 These examples are entirely compatible with the need to ensure that reopening is only allowed where no prejudice to the accused can be demonstrated. In the first example, it does not lie in the mouth of the accused to claim prejudice where the failure of the Crown to adduce the particular evidence arises from the actions of the defence. In the second instance, there is no prejudice to the accused because the issue which is addressed on reopening is non-controversial and has no effect on the substance of the case. Thus, for example, the Crown may be permitted to reopen its case to prove that the person referred to at a preliminary inquiry is the same person as the accused (Robillard, supra) because this is purely formalistic.
Positions of the parties
38The Crown argues that its request to reopen arises at the second stage of the trial because the defence did not call any evidence dealing with the firearms charges against Mr. Lewis. The Crown further argues that, even if its request arises at the third stage of the trial, its request meets the test for reopening on either of the narrow exceptions recognized by the Supreme Court for reopening at the third stage. The Crown asserts that the request arises due to the defence's conduct in failing to alert the Crown that it did not concede the accuracy of Mr. Lewis' date of birth in Ms. Charbonneau's affidavit. Alternatively, the Crown takes the position that its failure to prove Mr. Lewis' date of birth is only a technical or formal defect, and that Mr. Lewis will suffer no legal prejudice if the Crown is permitted to correct this omission.
39The defence argues that the Crown's request has been made beyond the third stage of the trial, and should not be permitted on that basis. Alternatively, the defence argues that there would be prejudice to the administration of justice if the Crown is allowed to reopen its case in circumstances where the request arises after the defence has pointed out a gap in the Crown's evidence.
Analysis
40Based on the positions of the Crown and the defence, in my view, there are two issues to be decided on this application:
a. Should the Crown be permitted to make a request to reopen its case given that the request was made during closing arguments, and, if so, is the request being made at the second or third stage of trial?
b. Should the Crown be allowed to reopen its case?
Timing of the request
41As reviewed above, the Crown and the defence take contrary views on the timing of the Crown's request to reopen its case. The Crown argues that I should treat the request as though it had been made at the second stage of the trial and the defence argues that I should not consider the request at all because it was made during closing submissions, after the defence had closed its case.
42I do not accept either of these positions. In my view, the Crown's request to reopen its case was made at the third stage of the trial, as that stage is defined in the case law.
43I start first with the Crown's argument. The Crown argues that its request to reopen should be treated as though it had been made at the second stage of the trial because the defence did not call any evidence in response to the firearm possession charges against Mr. Lewis. This argument misapprehends the distinction the Supreme Court and other courts have drawn between the second and third stages of a trial.
44As reviewed above, in P. (M.B.), the Supreme Court described the second stage of a trial as occurring "immediately" after the Crown has closed its case and before the defence has disclosed whether it has elected to call evidence. The third stage occurs after the defence opens its case, which includes after the defence reveals whether it will call any evidence. Accordingly, the distinction between the second and third stage is not whether the defence has called evidence, but whether the defence has started disclosing its strategy, including its decision as to whether it intends to call evidence.
45In this case, it is hard to imagine that the Crown could have sought to reopen its case any later than it did. By the point it sought to reopen, the defence had closed its case and fully disclosed its strategy. Accordingly, I do not accept the Crown's argument that it seeks to reopen its case at the second stage and that the more lenient test for reopening at that stage should apply.
46I turn now to the defence's argument that I should not consider the Crown's request to reopen at all because it was made during closing arguments, after the defence had closed its case and pointed out the flaws in the Crown's case.
47In advancing this argument, defence counsel relies on the specific words used in P. (M.B.), describing the third stage "as after the defence has started to answer the case against it" (emphasis added). The defence argues that, because the defence's case was complete when the request to reopen was made, the Crown's opportunity to seek to reopen has been lost.
48I reject this argument. Reviewing the cases that deal with requests by the Crown to reopen at the third stage, it is evident that the Court can entertain such requests even after the defence has closed its case, although in such cases the stringent and narrow stage three test is to be applied.
49Notably, while the language generally used by the Supreme Court to describe the third stage describes the stage as occurring "after the defence has started to answer the case against it", it is evident that this stage can include requests to reopen after the defence has in fact closed its case. This is evident from the following description of the third stage at paragraph 24 of P. (M.B.):
Lastly, in the third phase after the Crown has closed its case and the defence has started to answer the case against it (or, as in much of the case law, the defence has actually closed its case), a court's discretion is very restricted and is far less likely to be exercised in favour of the Crown. (emphasis added)
50In effect, in several instances, the cases reviewed with approval by the Supreme Court of Canada in P. (M.B.), where the Crown was allowed to reopen at the third stage involve situations where the Crown was allowed to reopen its case after the defence closed its case: see, for example, R. Huluszkiw, (1962), 37 C.R. 387 referred to at para. 31 of P. (M.B.), and R. v. Robillard, [1978] 2 S.C.R. 122 referred to inter alia at paras. 32 and 33 of P. (M.B.).
51Accordingly, I find that the Crown's very late request to reopen its case does not bar the request from being made. However, in order to succeed on this request, the Crown must meet the very stringent test established for such requests at the third stage of the trial.
Whether the Crown should be allowed to reopen its case
52As reviewed above, the Crown will only be allowed to reopen its case in very limited circumstances at the third stage of a trial. The two circumstances identified by the Supreme Court in P. (M.B.), at para. 30, and S.G.G., at para. 34, are where:
a) The conduct of the defence has either directly or indirectly contributed to the Crown's failure to adduce certain evidence before closing its case; or
b) The Crown's omission or mistake was over a non-controversial issue to do with a purely formal procedural or technical matters, having nothing to do with the substance or merits of the case.
53In this case, the Crown argues that both circumstances apply.
54First, the Crown argues that its failure to advance evidence about Mr. Lewis' date of birth was caused by the defence. Specifically, the Crown argues that when the defence agreed that Ms. Charbonneau's evidence could go in by way of affidavit, the defence should have alerted the Crown that Mr. Lewis was not conceding that his date of birth was correctly identified in the affidavit.
55I do not accept this argument. It is a fundamental principle of criminal law that the Crown bears the burden of proving its case beyond a reasonable doubt. Mr. Lewis has no responsibility for pointing out deficiencies in the Crown's evidence before the Crown closes its case. The Crown may have mistakenly assumed that Mr. Lewis' date of birth was not in issue, but there is no evidence of such an agreement and the defence has no obligation to draw gaps in the Crown's evidence to Crown counsel's attention.
56Second, the Crown argues that its failure to provide evidence of Mr. Lewis' date of birth is the type of formal or technical defect referred to in the case law, and that Mr. Lewis will not suffer any legal prejudice if the Crown is allowed to call evidence on this limited point. During argument, defence counsel conceded that her client would not suffer any legal prejudice if the Crown were allowed to reopen on this discrete issue, but she argued that there will be prejudice to the administration of justice; the Crown should not be allowed to reopen its case after the defence has pointed out a defect in the Crown's evidence.
57I agree with the Crown that its failure to prove Mr. Lewis' date of birth is a matter of form rather than a matter of substance.
58From a review of cases where the Crown has been allowed to reopen its case at the third stage of the trial because of formal or technical defects in the evidence are cases where the facts at issue were clearly part of the Crown's case and known to the defence, but the Crown had failed to offer formal proof of the facts through error or inadvertence:
a. In R. v. Singh (1941), 76 C.C.C. 248 (B.C. C.A.), the Crown was allowed to reopen its case where it inadvertently failed to prove a proclamation bringing into force a statute constituting an offence.
b. In Huluszkiw, at trial the Crown sought to introduce evidence that was given by a witness at a preliminary inquiry who died before trial. During the presentation of its case, the Crown omitted to prove that the evidence had been given while the accused was present at the preliminary inquiry. The trial judge dismissed the Crown's application to reopen, but the Court of Appeal reversed the trial judge's decision, allowing the Crown to reopen its case.
c. In Robillard, after the Crown had addressed the jury, the defence argued that the accused had not been identified as the person referred to by an accomplice whose preliminary inquiry evidence was admitted at trial. The Crown was allowed to reopen its case, and in P. (M.B.), at para. 34, the Supreme Court commented that the case should be understood "as a case dealing with a mistake as to form rather than substance".
d. In R. v. Hape, [2005] O.J. No. 3188 (C.A.), at paras. 16-18, the Court of Appeal for Ontario upheld a trial judge's decision to allow the Crown to reopen its case after the defence chose not to call any witnesses. The issue the Crown was permitted to address was an apparent discrepancy in bank account numbers used by the police in a fraud sting operation. The Court of Appeal found that the trial judge did not commit an error in finding that the Crown's omission or mistake was purely formal or procedural, and not substantive.
59In contrast, courts have found that gaps or errors made by the Crown are not formal or technical where the correction would have the effect of altering the Crown's case, and thereby the case to be met by the accused. For example, in P. (M.B.), the majority of the Supreme Court found that the Crown should not be allowed to reopen its case to correct evidence about the date of a sexual assault where the defence had indicated that it intended to call alibi evidence. Similarly, in S.G.G., the Supreme Court found that it was an error for a trial judge to allow the Crown to reopen its case after the accused testified for the purpose of calling a witness to corroborate the weak evidence of another Crown witness. In both cases, the Court's concern was that the Crown's new evidence changed the substance of the Crown’s case and the case to be met by the accused. These were not matters of form, but of substance.
60In this case, Ms. Charbonneau's affidavit states that the date of birth searched with Mr. Lewis name was September 10, 1982. The fact that the Crown did not formally prove Mr. Lewis' date of birth is a technical error or an error of form over substance. Allowing the Crown to prove Mr. Lewis' date of birth at this late stage of the trial does not alter the Crown's case or the case to be met by Mr. Lewis. Matters may have been different if there was an error in relation to Mr. Lewis' date of birth in Ms. Charbonneau's affidavit, and the Crown was seeking to file a new affidavit with a corrected birth date. However, in the circumstances of this case, where the only gap in the Crown's evidence is formal proof of Mr. Lewis' date of birth, I am satisfied that this is one of those rare cases where it is appropriate to let the Crown reopen its case for the limited purpose of proving Mr. Lewis' date of birth. Mr. Lewis will suffer no legal prejudice or no prejudice in the defence of his case.
61As indicated above, during argument, Mr. Lewis' counsel conceded that there would be no specific legal prejudice to Mr. Lewis if I were to allow the Crown to reopen its case. However, she argued that there would be prejudice to the administration of justice because the Crown should not be permitted to seek to reopen its case after the defence has pointed to a gap in the evidence as part of its closing submissions. As reviewed earlier in these reasons, the test established by P. (M.B.), for determining when the Crown may reopen its case at the third stage of trial recognizes that there are circumstances where the Crown will be allowed to reopen even where the error or gap in evidence is raised by the defence in closing argument. The focus of the test is on the risk of prejudice to the accused, and is designed to ensure that the Crown will only be allowed to reopen its case in very narrow circumstances, where, as described by the Court in S.G.G., at para. 35"the absence of prejudice to the accused is manifestly obvious". In my view, this is such a case.
Conclusion
62Accordingly, while the timing of the Crown's request to reopen was less than ideal, I find that evidence at issue is a matter of form, rather than substance and that Mr. Lewis will not suffer any legal prejudice if the Crown is allowed to reopen its case to prove Mr. Lewis' date of birth.
63I am therefore granting the Crown’s request to reopen its case for the limited purpose of proving Mr. Lewis’ date of birth.
FAVREAU J. RELEASED: December 20, 2018