COURT FILE NO.: CR-23-0153-AP DATE: 2024-05-22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Crown K. Regimbal, for the Crown
- and -
SONIA MOORE Accused J. Danto-Clancy, for the Accused
HEARD: April 10, 2024, at Thunder Bay, Ontario Regional Senior Justice W. D. Newton
Summary Conviction Appeal Decision
Overview
[1] Ms. Moore appeals her October 20, 2022, conviction in the Ontario Court of Justice for assault causing bodily harm (s. 267(b) Criminal Code) and failure to comply with a probation order – keep the peace (s. 733.1(1) Criminal Code).
[2] The appellant, Ms. Moore, argues that the trial judge committed an error of law by permitting the Crown to call reply evidence.
[3] For the reasons that follow I find no error in the admission of that reply evidence and dismiss the appeal.
The Facts
[4] The complainant and her common-law spouse testified that Ms. Moore punched the complainant following an argument in the parking lot outside the complainant’s apartment. Ms. Moore resided in a different apartment in the same building.
[5] The complaint also testified that the police attended that night but could not locate Ms. Moore and that the police attended again the next morning and arrested Ms. Moore in her apartment.
[6] Ms. Moore and a friend testified that no assault took place and that they were both in Ms. Moore’s apartment all night and could not have committed the offence.
[7] The Crown called the investigating officer as a reply witness. He testified that he attended at Ms. Moore’s apartment and knocked on the door that night when the police were first called, but no one responded to him, the inference being that no-one was in the apartment as alleged.
Grounds of Appeal
[8] In seeking a new trial, Ms. Moore raises the following grounds of appeal:
- That the learned trial judge erred in law by permitting the Crown to "split" its case by calling evidence in reply that ought to have been a part of the Crown's case or otherwise not included in the trial.
- That the learned trial judge erred in law by permitting the Crown to adduce reply or rebuttal evidence that was relevant to only a collateral issue; and
- That the learned trial judge erred in law by using the inadmissible, irrelevant reply or rebuttal evidence to assess the credibility of the complainant and of the defence witnesses.
Positions of the Parties
Ms. Moore
[9] Ms. Moore submits that the Crown was improperly allowed to split its case at trial. She argues that the introduction of the officer’s evidence in response to the blanket denial that the offence occurred, effectively allowed the Crown to reiterate its case and adduce additional evidence in support of it.
[10] Further, she submits that the testimony of the officer related only to collateral issues or issues that should have been raised by the Crown in its case. Ms. Moore relies upon R. v. Krause.
[11] Finally, Ms. Moore argues that the trial judge used the reply evidence to corroborate or enhance the testimony of the complainant and that this was a prohibited use of reply evidence.
The Crown
[12] The Crown argues that it did not split its case, but rather called reply evidence to respond to Ms. Moore’s assertion that she could not have committed the offence since she was in her apartment at the time. The Crown relies upon R. v. Lawes.
[13] As such, the reply evidence became relevant and material to this defence that she could not have committed the defence because she was in her apartment with a witness who confirmed Ms. Moore’s testimony.
[14] Finally, the Crown argues that the reply evidence was not used to corroborate the testimony of the Crown’s witnesses but rather addressed the defence assertion that Ms. Moore was in her apartment with her friend all night and that she, therefore, could not have committed the offence.
The Law
[15] The parties do not disagree as to the appropriate legal authorities but differ in the application of these authorities to these facts.
[16] In Krause, the Supreme Court of Canada stated:
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 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. [Emphasis added.]
Analysis
[17] By offering evidence that she was not present at the scene of the offence, but rather in her apartment with her friend, Ms. Moore, Ms. Moore was presenting an “alibi”.
[18] As such, I adopt the reasoning of the Supreme Court of Canada in Lawes:
The rebuttal evidence introduced by the Crown relating to … was properly admitted. It went to the context and the essential fabric of the alibi defence. The Crown could not have known in advance either that the appellant would testify or the testimony he would give. The rebuttal evidence was clearly relevant to an issue raised in the defence. The discretion of the trial judge to permit the rebuttal evidence was not improperly exercised in those circumstances.
[19] This was not, as suggested by Ms. Moore, an improper splitting of the Crown’s case, nor evidence relevant only to a collateral issue. This evidence was responsive to the “alibi” and countered the defence assertion that Ms. Moore was present all evening in her apartment with her witness and therefore incapable of assaulting the complainant in the parking lot.
[20] I conclude that the trial judge properly exercised her discretion to allow the Crown to call reply evidence. She did not commit an error in law.
Disposition
[21] The appeal is dismissed.
“originally signed”
The Hon. Regional Senior Justice W. D. Newton
Released: May 22, 2024