Simon's Megalomaniacal Legal Resources

Criminal - Jury - Opening Address

. R. v. Stephens

In R. v. Stephens (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against jury convictions on "two counts of aggravated assault".

Here the court considers the propriety of a criminal jury case opening 'address':

1. Grounds arising from the mistrial ruling

[30] The defence moved for a mistrial after the Crown’s opening address, arguing that Crown counsel had violated the rule that “the opening address is not the appropriate forum for argument, invective, or opinion”: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 338.

[31] Among other things, during his opening address Crown counsel had repeatedly expressed his opinion about what the videos would show, including suggesting that the jury would be able to infer that the men in Group 2 had been looking for someone, and would be able to see Mr. Stephens holding a firearm. He also made comments that could have been taken as implying, inaccurately, that Mr. Huggan would positively identify Mr. Stephens as the second shooter. Crown counsel also told the jury that the evidence of Mr. Stephen’s efforts to have his girlfriend remove the .32 calibre revolver from his residence would support “[t]he irresistible inference” that he had used this gun during the shooting. The defence also objected to Crown counsel having analogized the criminal burden and standard of proof to the assembly of a jigsaw puzzle with some missing pieces.

[32] The trial judge agreed that Crown counsel’s opening address had gone “too far”, but held that “[a] mistrial is an extreme remedy”, and that he would instead give the jury a corrective instruction. He explained:

I do not like to correct counsel, either in openings or closings, as I rarely have to do that. I must correct the opening in this case. I am going to tell them to disregard your statements regarding inferences, opinion and the like. I don’t wish to embarrass the Crown at the outset of trial, but it’s the only way I can salvage this trial without granting the relief of a mistrial.