COURT FILE NO.: CRIMJ(P) 1864/19
DATE: 2021 04 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty and C. Nadlor, for the Crown
- and -
D.S.
Michael A. Moon, for the Accused
HEARD: February 9, 2021, (by videoconference)
RULING
On Application to Call Reply Evidence
Fowler Byrne J.
[1] Following the completion of the Crown’s case in this trial, the accused D.S. elected to testify in support of his defence. Following his evidence, the Crown applied for the right to call reply evidence. I allowed the Crown to call reply evidence on certain issues, with reasons to follow. These are those reasons.
I. Background
[2] D.S. faces charges of attempted murder and aggravated assault as a result of stabbing injuries sustained by M.T. on September 23, 2017.
[3] At the trial of this matter, the Crown called a number of witnesses in support of its case. As part of its case, it was an agreed fact that after he was stabbed, M.T. collapsed on the front porch of C.H. who called 911 at 12:06 p.m. After the Crown closed its case, D.S. indicated his intention to testify.
[4] During his testimony, D.S. gave evidence that on the morning of the stabbing, he was at M.J.’s townhouse at around 9:30 a.m., took public transportation to a parent’s home in Brampton to shower and change, and then took public transportation to his family doctor’s office in Mississauga to deal with a prescription issue. He stated he then took public transportation back to the area of M.J.’s residence and was at a bar in a strip mall beside her housing complex around the time the attack took place. It is agreed that the attack took place at the housing complex where M.J. resided.
[5] At no time prior to giving his evidence did D.S. ever give this account of his whereabouts in the morning of the attack or during the attack.
[6] D.S. was cross-examined by the Crown on his evidence. In particular, the Crown cross-examined D.S. on the likelihood that he would be able to travel to his parent’s home and then to his doctor’s office and then back to the bar, all by public transportation. D.S. maintained he visited the doctor’s office that morning at around 11:00 a.m. to 11:15 a.m. before returning to the housing complex area. He stated he returned in time to make a call to M.J. on a friend’s cell phone just beside the strip mall, during which he relayed that there was a commotion at the housing complex due to a fight. M.J. also gave evidence that she received this call from D.S., though she indicates the conversation was slightly different. Constable Imber testified that M.J. arrived back at the complex at 2:12 p.m. and that she told him that D.S. called her about an hour before, and had mentioned a fight.
[7] In the Crown’s case, D.S. was placed in the housing complex that morning before the stabbing. The only reference to a doctor’s appointment was in the video statement made by M.J. on the day of the stabbing, wherein she told the police that she thought D.S. was going to the doctor’s that morning. At trial, M.J. had no recollection of ever saying that, despite being showed her video statement. No mention was made of the doctor’s name, or the time of the appointment. She did not indicate if D.S. even attended.
[8] Prior to completing their cross-examination of D.S. the Crown summoned the medical records for D.S., not for the contents of the records, but only to obtain a record of his visit that day. They also sought to call D.S.’s doctor as a witness to explain the records and D.S.’s attendance on that day. On the date this application was argued, the Crown maintained that D.S.’s evidence amounts to an alibi and his narrative of that day is central to this alibi. This was the first time they have heard this evidence from D.S.
[9] D.S. objected on two grounds. First, he argued that this amounts to the Crown splitting its case, which is not allowed. Secondly, whether or not D.S. was at his doctor’s office one hour before the stabbing is not an alibi but a collateral fact, being sought only to contradict the evidence of D.S. on a collateral issue and is therefore not permitted.
II. Issues
[10] The question I was asked to consider was whether the Crown was entitled to call evidence to rebut the evidence given by D.S. with respect to his attendance at the doctor’s office the morning of the stabbing.
III. The Law
[11] The Crown is not entitled to split its case. The Crown must produce and enter in its own case all the clearly relevant evidence that it has, or that it intends to rely upon, to establish its case. The accused is entitled, at the close of the Crown’s case, to know the full case that the Crown has presented so that they know the case to be met in response: R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466, at para. 15.
[12] The Supreme Court of Canada further states the following in Krause, at para. 16, as followed in R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 34:
[16] The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made. It will be permitted only when it is necessary to insure [sic] that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.
[13] It is not expected that the Crown will lead evidence to refute a possible defence of which it is unaware, or to refute a possible defence where it is unknown what evidence will be called in support of it: Sanderson, at para. 39. The Crown cannot split a case of which it has no knowledge.
[14] Furthermore, a trial judge has the discretion to admit evidence in reply concerning an issue that was only marginally or minimally relevant when the Crown presented its case, but which took on more significant relevance as a result of the defence evidence: R. v. G.P. (1996), 1996 420 (ON CA), 31 O.R. (3d) 504 (C.A.).
[15] When the accused raises an alibi defence for the first time during their testimony, the late notice and expansive nature of the alibi gives the Crown no option but to call rebuttal evidence: R v. R.B., 2011 ONCA 328, 280 O.A.C. 329, at para. 4.
[16] That being said, the Crown is not permitted to introduce reply evidence if the sole purpose is to contradict a witness’ testimony concerning a collateral fact. If the proposed evidence relates to an integral and essential issue in the case, it is permissible. The proposed reply evidence need not be determinative of an essential issue; it is sufficient for it to be related to an essential issue: Sanderson, at paras. 46-47; G.P., citing R. v. Aalders, 1993 99 (SCC), [1993] 2 S.C.R. 482, at p. 498; Krause, at para. 17.
IV. Analysis
[17] D.S. maintains that the Crown had notice of D.S.’s attendance at the doctor’s office, through M.J.’s statement, and therefore should have included any such evidence in their case before D.S. gave his evidence.
[18] I disagree. The Crown did not split its case. There was no indication that M.T. was at the doctor’s the morning of the stabbing until which time D.S. indicated this in his testimony. It is conceded that the Crown was aware that M.J. thought D.S. was supposed to go the doctor’s office that day, but the doctor’s name was not given, nor is there any indication that D.S. actually attended at the doctor’s office. What D.S. may have told M.J. that morning about his plans for the day was marginal or peripheral at best.
[19] The relevance of D.S.’s attendance at his doctor’s office only became relevant, or even highlighted, when he indicated it. The Crown is entitled to reply.
[20] D.S. also maintains that whether he went to the doctor that morning is a collateral fact. He does not indicate he was at the doctor’s during the stabbing – he was there one hour before, and therefore it is not an alibi. He argues that the sole reason the rebuttal evidence is being called is to attack the credibility of D.S. on a collateral issue, and therefore should not be admitted.
[21] The basis of this submission is that his presence at the doctor’s is not an alibi. An alibi is an assertion that the person charged with the offence was elsewhere when the offence occurred and thus it was not possible for them to have committed the offence. Alibi evidence must be determinative of the final issue of guilt or innocence of the accused: R. v. Rawn, 2015 ONCA 396, 326 C.C.C. (3d) 128, at para. 23; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 49-50.
[22] I do not find that D.S.’s presence at the doctor’s office was a collateral fact. His whereabouts that morning relates to an integral and essential issue in this case – where was D.S. at the time of the attack. The Crown’s theory of this offence is that D.S. spent the night at M.J.’s apartment and remained there when M.J. left for an apple picking trip. M.T.’s evidence was that sometime thereafter, D.S. called M.T. and asked him for money. The Crown then contends that M.T. and D.S. had a conversation a debt owing by M.T.at the housing complex. Then, the Crown contends that M.T. aggravated D.S. by telling him, at the housing complex, that if he was selling drugs, he should just sell, and not use, because D.S. looked terrible. The Crown then alleges that D.S. wandered up to the basketball court where M.T. was playing with two other men, stabbed M.T. in the neck and ear, and then chased him in the direction of C.H.’s residence where he eventually collapsed.
[23] Accordingly, the Crown’s case is not just about where D.S. was at 12:00 p.m., the approximate time of the stabbing, but also about the events leading up to the stabbing, why he allegedly stabbed M.T., which started sometime in the townhouse complex after 9:30 a.m.
[24] In addition, even if this court was only to concern itself with where the accused was at the time of the stabbing, The Crown is entitled to test D.S’s evidence as to the time he was at the doctor’s office and determine if he was in fact at the doctor’s office at the time alleged. D.S. states his alibi is that he was at the bar in a strip mall beside the housing complex around the time of the stabbing. The Crown is entitled to test that, by testing D.S’s own evidence about how he came to be at that particular place, at the particular time of the stabbing.
[25] Accordingly, I find that D.S.’s whereabouts in the hours prior to the stabbing relates to the integral and essential issue of whether he stabbed M.T., and is therefore proper evidence to be elicited in reply.
V. Conclusion
[26] Accordingly,
a) leave is granted to the Crown to call rebuttal evidence on the issue of whether D.S. attended at his doctor’s office and met with a doctor, anywhere between 9:30 a.m. on September 23, 2017, which is the time D.S. indicated was when he left M.J.’s home, until 12:06 p.m. on that same day when 911 was called; and
b) D.S. is granted leave to call sur-rebuttal evidence, if he so wishes.
Fowler Byrne J.
Released: April 15, 2021
COURT FILE NO.: CRIMJ(P) 1864/19
DATE: 2021 04 15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
D.S.
RULING Application to Call Reply Evidence
Fowler Byrne J.
Released: April 15, 2021