Toronto Criminal Lawyer - Domestic Assault Charges Dismissed

¶ 1 HORKINS J. (orally): The factual situation here is pretty straightforward. It's an assault case. The complainant has given evidence of an assault, having been committed on her in a domestic context.

¶ 2 Her evidence is that she was — that she is now separated, but back on the date in question she was with her husband in the living room. Without getting into the why's and wherefore's, the argument that arose became physical. And the high water marks of her complaint are, one, that at a point in time a stool or coffee table was held overhead by her husband in a threatening manner. And then, at a later point in the events, she was grabbed by the arm and thrown about.

¶ 3 She described these events in an articulate and forthright manner. Completed her evidence in-chief, no questions were asked in cross. That was the close of the Crown's case.

¶ 4 The defence elected to call no evidence, and commenced submissions by highlighting the fact that the complainant had never identified the accused before the court as the perpetrator of these events.

¶ 5 The Crown now seeks to re-open to recall the complainant to address that gap. I have looked at the evidence, and heard submissions, and I'm satisfied that there is in fact no evidence of identification.

¶ 6 And the issue is whether I have a discretion to permit re-opening to address that issue. And if I do have that discretion, whether I should exercise it in these circumstances.

¶ 7 Counsel, Mr. Penney, on short notice, has provided me very helpfully with the authorities of M.B.P., a decision of the Supreme Court of Canada, 1994, and the Robillard decision, which is referred to in M.B.P. I am comfortable with the principles that apply, and are referred to in those decisions. I find that I do have a discretion, and that the discretion has to, of course, be exercised judicially. In considering the exercise of that discretion, I accept that the discretion narrows as the trial progresses through its various phases. Those three phases are outlined by Chief Justice Lamer, as he then was, in M.B.P. as being basically, one,

"After the Crown closes its case, but before the defence has elected to call evidence,"

"After the defence has started to answer the Crown's case."

¶ 8 And significantly when Chief Justice Lamer blocks that out, he includes the situation where the defence has indicated that it will be calling no evidence.

¶ 9 The discretion exists, at that stage, the third stage, and beyond, but the requirements, in terms of permitting a re-opening not only narrow, but I think the focus changes and that it's highlighted by M.P.B.:

"The impact on the fair trial rights of the accused will be greater towards the later stages where there may well be impact on rights against self-incrimination. And so the wider societal interests of not determining matters as a result of inadvertence becomes deluded as the more pressing consideration of the fairness to the accused increases at the later stages."

¶ 10 I am persuaded that this case is at that third and later stage, and that the Crown should only be permitted to re-opening in very narrow and rare circumstances.

¶ 11 The general principles, again, I think are clear that the Crown must show that, one, some matter arose that could have been foreseen, or that — I'm sorry, that could not have been foreseen. That's not the situation here.

¶ 12 Two, that the conduct of the defence contributed to the Crown's failure to adduce certain evidence. Again, that's clearly not the situation here.

¶ 13 Or, thirdly, that the omission the Crown seeks to correct involves a non-controversial issue of a purely technical or formal nature, and not a matter of substance germane to the merits of the case. That's where we are at, and I think it's a very thin line, but the issue of identification, although it may seem to be, in a situation like this, technical, formal, this is an allegation of a domestic assault. The accused refers to the perpetrator as her husband. It would be hard to imagine circumstances where there would be a difficulty in terms of recognition, or identification, and that brings it to my mind to the thin line of having to say to this complainant,

"Your case failed because you didn't identify your husband sitting in the courtroom."

¶ 14 The other side of the coin, of course, is that identification is a real issue. It can be a matter of substance, and it doesn't sound right to me to refer to it as a mere technicality. I think the stage that this case is at, and the nature of the gap are such that I have to exercise my discretion against permitting the Crown to re-open its case, and I think it's clear that I do that somewhat reluctantly, but I'm not too worried about that because my reluctance is borne out of a pretty good guess that the complainant would get in the stand and point to the accused as her husband, and we could carry on from there, but that's not a judicial way of looking at it, and I'm forcing myself not to look at it that way. So, I think having made that determination, and part and parcel of it was a finding of fact that there's no evidence of identification, Mr. Hodgson, unless you got something to draw my attention to, I don't think there's any evidence upon which I could register a conviction.