Court File and Parties

Court File No.: CRIM J(P) 2022/215 Date: 2024-03-15 Superior Court of Justice - Ontario

Re: His Majesty the King v. Helder Vertentes-Arruda

Before: Stribopoulos J.

Counsel: David D’Iorio, for the Crown / Respondent Jason Dos Santos, for the Accused / Applicant

Heard: March 5, 2024

Endorsement

[1] Mr. Vertentes-Arruda faces a charge of first-degree murder in the death of his mother-in-law and five charges of attempted murder relating to his wife, three daughters, and father-in-law.

[2] On the morning of December 4, 2020, Mr. Vertentes-Arruda started a fire at the Brampton home of his in-laws, where his wife and children were staying at the time. The Crown alleges that he did so intending to kill everyone in the home after some degree of planning and deliberation.

[3] Although Mr. Vertentes-Arruda’s wife, daughters, and father-in-law escaped the fire and survived, tragically, his mother-in-law did not.

[4] Mr. Vertentes-Arruda has applied for an order allowing his counsel to deliver an opening statement immediately after the Crown does. The Crown opposes the application.

[5] The case law recognizes that trial judges have the discretion to permit the defence to make an opening statement to the jury after the Crown's opening. However, the cases caution that trial judges should exercise that discretion only in “special or unusual circumstances”: see R. v. A.D., 2003 ONSC 43624, 180 C.C.C. (3d) 319 (Ont. S.C.), at para. 16. In A.D., Justice Dambrot cataloged the circumstances in which trial judges have exercised their discretion to permit the defence to open immediately after the Crown: see at para. 19.

[6] Mr. Dos Santos made several submissions as to why the court should permit him to make his opening statement immediately after the Crown's opening.

[7] First, Mr. Dos Santos notes that there should be no concern that Mr. Vertentes-Arruda will not call a defence. That is a risk recognized in the case law, the danger being that the defence will deliver an opening and ultimately fail to call a case. The right to make an opening statement is contingent on calling evidence: see Criminal Code, R.S.C. 1985, c. C-46, s. 651(2).

[8] Mr. Dos Santos argues that Mr. Vertentes-Arruda must call evidence because otherwise, he will be left entirely without a defence. After all, Mr. Dos Santos notes, the defence will concede the actus reus of the offences charged. Mr. Vertentes-Arruda admits that he is the person who started the fire that killed his mother-in-law and jeopardized the lives of his wife, father-in-law, and daughters. He will plead guilty to manslaughter when arraigned and the Crown has advised that it will not accept that plea.

[9] Second, Mr. Dos Santos advises that if he is permitted to open immediately after the Crown does, he will not seek to open again at the end of the Crown's case. There will not be two defence opening statements, a concern mentioned in some of the cases.

[10] Third, Mr. Dos Santos notes that this is not a situation where there is any doubt about the admissibility of the evidence the defence intends to adduce in response to the charges. The Crown will lead much of that evidence as part of its case. Many of the Crown's witnesses will describe how, in the days and hours preceding the fire, Mr. Vertentes-Arruda was abusing alcohol and cocaine and behaving bizarrely. Mr. Dos Santos advises that the defence will call an expert to testify regarding Mr. Vertentes-Arruda's capacity to form the intent for murder in light of his substance abuse during the relevant period and that Mr. Vertentes-Arruda will also testify. The defence has delivered the expert’s report to the Crown, and the Crown has not voiced any objection to the admissibility of the expert’s proposed evidence.

[11] Ultimately, Mr. Dos Santos argues that this trial, scheduled for three weeks, is long enough that the jury should not be left wondering what Mr. Vertentes-Arruda’s defence might be. Instead, they should know from the outset that Mr. Vertentes-Arruda acknowledges starting the fire and admits he is guilty of manslaughter, and that the only live issue from the perspective of the defence is whether he possessed the mens rea for the offences charged. Mr. Dos Santos wants to tell the jury all that and ask them to pay especially close attention to the evidence relating to Mr. Vertentes-Arruda’s state of mind.

[12] On behalf of the Crown, Mr. D’Iorio made three principal submissions as to why the court should dismiss Mr. Vertentes-Arruda's application.

[13] First, Mr. D’Iorio argues there is nothing unique or unusual about this case to justify departing from the ordinary procedure contemplated by the Criminal Code, which entitles the defence to deliver its opening after the Crown closes its case.

[14] Second, Mr. D’Iorio argues that there is a real danger that Mr. Vertentes-Arruda could change his mind and decide not to call a defence or give testimony different from what Mr. Dos Santos anticipates and mentions during his opening statement. Mr. D’Iorio contends that the latter concern is well-founded, given that it seems to have happened during the voluntariness and section 10(b) Charter voir dire in this case. During that hearing, Mr. Vertentes-Arruda’s testimony departed significantly from a Statement of Anticipated Evidence filed by the defence on his Charter application: see R. v. Vertentes-Arruda, 2023 ONSC 6770, at paras. 85-88. Mr. D’Iorio argues that there could be prejudice to the Crown if Mr. Dos Santos describes the anticipated evidence in his opening one way and Mr. Vertentes-Arruda says something different during his trial evidence.

[15] Finally, Mr. D’Iorio submits that what Mr. Dos Santos intends to say to the jury in his opening statement is inappropriate because it crosses the line into argument, which is not permitted.

[16] I have carefully considered the circumstances of this case, the parties’ submissions on this application, and the past instances in which judges have exercised their discretion to refuse or grant such requests. Having done so, I have decided to exercise my discretion to permit Mr. Dos Santos to deliver his opening statement immediately after the Crown’s opening. There are several reasons why I have decided to do so.

[17] Firstly, the jury could be left confused unless the defence is permitted to open immediately after the Crown. Given the narrow focus of the defence, much of the Crown’s case will go unchallenged during the trial. As the prosecution’s case unfolds, the jury might be left wondering why Mr. Vertentes-Arruda attempted to plead guilty to manslaughter and may even begin to question the purpose of the trial. The jury should know why Mr. Vertentes-Arruda pled guilty to manslaughter and why he is not challenging the evidence called by the prosecution. Defence counsel is undoubtedly the trial participant best positioned to explain that to them.

[18] Secondly, most of the concerns raised by the Crown have little to do with the timing of defence counsel’s opening. An opening statement by the Crown or defence always carries the risk of a lawyer describing the anticipated evidence and that evidence not being forthcoming. Over-promising and under-delivering are risks inherent with all opening statements, whenever they are delivered.

[19] After all, trials are inherently unpredictable. Witnesses may become unavailable or testify differently from what the parties reasonably anticipated. That danger is inherent with every opening statement, whether from the Crown or the defence and unaffected by its timing.

[20] I recognize that some of the cases identify that concern as a relevant consideration in deciding whether to grant an application of this nature. With respect, I am hard-pressed to understand why that risk should inform how trial judges exercise their discretion in deciding such applications.

[21] Whether the Crown or the defence describes anticipated evidence in their openings (whenever delivered) that they ultimately fail to elicit, the court's standard instruction to the jury – that they are to decide the case based only on the evidence heard at trial and that the lawyers’ submissions are not evidence – is more than a sufficient remedy.

[22] Similarly, concerns about a lawyer’s opening containing impermissible content apply equally to either party’s opening statements, regardless of when they are delivered. There is always a danger of counsel misusing their opening, be it Crown or defence counsel, which is unaffected by their timing. Although I recognize that the cases also identify this as a relevant consideration when deciding whether to permit the defence to open immediately after the Crown, I am again at a loss to understand why that should influence the court’s exercise of its discretion.

[23] Generally, an objectionable opening statement, by whichever party, and whenever delivered, can be managed by the trial judge directing the jury to ignore its objectionable aspects: see R. v. Khairi, 2012 ONSC 5949, at para. 18, aff'd 2015 ONCA 279.

[24] To be sure, some opening statements may not be curable through a limiting instruction alone. Extraordinary situations, for example, where an opening statement refers to inadmissible and highly prejudicial evidence, may require the trial judge to declare a mistrial: see, e.g., R. v. Griffin, [1993] O.J. No 2573 (Gen. Div.). Again, however, these dangers are inherent with every opening statement, irrespective of when they are delivered.

[25] In short, trial judges are well-equipped to redress any potential unfairness occasioned by an improper opening statement. The danger of an improper opening is not made more acute because an improper defence opening is delivered immediately after a Crown opening.

[26] Third, I disagree with Mr. D’Iorio that what Mr. Dos Santos intends to say to the jury in his opening statement is objectionable because it crosses the line into impermissible argument. Telling the jury that Mr. Vertentes-Arruda acknowledges that he started the fire that caused the death of his mother-in-law and admits that he is guilty of manslaughter is not “argument.” Nor would it be improper for Mr. Dos Santos to tell the jury that, from the defence perspective, the critical issue in this case will be Mr. Vertentes-Arruda’s state of mind on the morning he started the fire. Defence counsel asking the jury to pay close attention to the central question in this prosecution can hardly be problematic.

[27] The law governing the scope of what counsel may say to the jury during an opening statement is well-established. Opening statements are not permitted to be inflammatory or argumentative; there is no room for rhetorical overzealousness: see R. v. Khairi, 2015 ONCA 279, at paras. 7, 10. However, as Justice Ferguson has observed:

The principal purpose of an opening address is to outline the story of the case, the issues and the evidence to be adduced to the jury in order that they will be better able to appreciate the significance of the evidence that follows and understand where it fits in with the overall case. The opening is not simply limited to a recitation of the evidence. Counsel will outline generally the facts of the case, including the events giving rise to the cause of action, the nature of the issues to be decided, and, as well, an outline of the evidence by which he or she proposes to prove the case. In addition, counsel may refer to facts which require no proof, including those that have not been formally admitted or of which the court may take judicial notice.

The Honourable Mr. Justice Dan Ferguson, “The Law Relating to Jury Addresses” (July 1997), 16 Advocates' Soc. J. No. 2, 19-23; see also Michelle Fuerst, Anne Sanderson and Stephen Firestone, Ontario Courtroom Procedure, 5th ed, (Toronto: Lexis/Nexis, 2020), at Ch. 24, Part C.

[28] What Mr. Dos Santos plans to tell the jury in his opening statement is neither inappropriate nor objectionable.

[29] Finally, the most significant concern that justifies refusing an application by the defence to open immediately after the Crown stems from the danger that after hearing the case for the Crown, the Accused may elect not to call a defence. To be sure, that is the most compelling consideration on such applications. After all, trials are inherently uncertain, and an accused has the ultimate right to decline to call evidence.

[30] If an accused decides not to call a defence, permitting the defence to open immediately after the Crown would mean that defence counsel will have had an opportunity to address the jury twice when, in such circumstances, the law only permits them to address the jury once during closing submissions.

[31] If I thought there was any possibility that the defence might choose not to call evidence, that factor alone would cause me to dismiss the application. However, in this case, I am satisfied that there is no realistic danger of that happening. Like Mr. Dos Santos, I agree that without evidence, Mr. Vertentes-Arruda would be left with virtually no defence to the charges. That defence counsel has retained an expert whom he plans to call and has delivered the expert’s report to the Crown, who has not objected to the admissibility of the expert’s testimony, leaves me confident that the defence will call a case of its own.

[32] In summary, for these reasons, the balance of interests overwhelmingly favours allowing the application and permitting defence counsel to deliver an opening statement immediately after the Crown. The application is granted.

Signed: “J. Stribopoulos J.” Released: March 15, 2024