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Criminal - Crown Reply. R. v. D.W.
In R. v. D.W. (Ont CA, 2023) the Court of Appeal considered the Crown calling of 'reply' evidence:[21] The Crown is permitted to call evidence in reply where: 1) the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated, or 2) some matter that emerged during the Crown’s case had taken on added significance as a result of evidence adduced in the defence case: R. v. Donnelly, 2023 ONCA 243, at para. 18; R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43. . R. v. Donnelly
In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered when the Crown may call reply evidence:[18] Moreover, the trial judge made no error in stating the well-established rule that the Crown may be permitted to call evidence in reply after completion of the defence case where: 1) the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or 2) some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence case: R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43; R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, at para. 17. This entitlement to call reply evidence is not absolute but is subject to the trial judge’s discretion: R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 35; R. v. Dussiaume, 1995 CanLII 217 (ON CA), 98 C.C.C (3d) 217 (Ont. C.A.), at para. 6, leave to appeal refused, [1995] S.C.C.A. No. 272. Further, trial evidentiary rulings are often made subject to being revisited if the unfolding of the evidence requires it. This is to be expected given the fluid nature of a trial proceeding. There is nothing unusual in that approach. It helps ensure fairness to both sides.
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