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Evidence - Rebuttal. R. v. S.M.
In R. v. S.M. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal against a conviction for sexual assault.
Here the court considers 'rebuttal evidence':Rebuttal Evidence
[12] The appellant submits that the trial judge erred by allowing the Crown to re-call the complainant to provide rebuttal evidence. Rebuttal evidence can only be called where the defence raises a “new matter or defence which the Crown has had no opportunity to deal with and which the Crown could not reasonably have anticipated”: R. v. Sanderson, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para. 34, citing R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at p. 474. In the appellant's view, the trial judge focused on the wrong issue when applying this rule: she asked whether the Crown could reasonably have anticipated the existence of photographs that might support the complainant’s testimony, when the relevant question was whether the Crown could reasonably have anticipated the appellant’s defence, i.e., that he could not have committed the offence at his parents’ home in January or February because he did not live there, and never stayed overnight.
[13] The appellant argues that during the Crown's case it became clear that the location of the alleged sexual assaults was a live and material issue, which was tied specifically to where the appellant resided at the relevant time. He notes further that the Crown had an opportunity, during re-examination, to clarify how the complainant knew when the appellant had returned to his parents' home, but chose not to. According to the appellant, the Crown’s decision to not pursue this issue in re-examination should have precluded it from calling rebuttal evidence.
[14] I am not persuaded that, in the circumstances of this case, the trial judge committed a reversible error. In my view, the trial judge properly exercised her discretion to admit the rebuttal evidence.
[15] The general rule is that the Crown must introduce all the evidence it intends to rely on before closing its case. This rule against case-splitting ensures that the defence has a full opportunity to respond and is not taken by surprise by new evidence after the Crown has closed its case and the defence is complete: Krause, at pp. 473-74; Sanderson, at para. 32.
[16] However, the Crown may call rebuttal evidence where: 1) the defence raised a new matter which the Crown has had no opportunity to deal with and could not reasonably have anticipated; or 2) some matter that emerged during the Crown’s case took on added significance as a result of evidence adduced by the defence: R. v. D.W., 2023 ONCA 767, at para. 21; R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, at para. 17; R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43.
[17] Where rebuttal evidence is used, as it was here, to refute a defence, it does not give rise to concerns about case-splitting: R.D., at paras. 18-19. This is so because an accused could not be surprised by rebuttal evidence on an issue they themselves raised. Further, the fact that an issue was “foreshadowed” – and the question of where the appellant lived in the winter of 2019 was indeed raised by defence counsel before the Crown closed its case – does not necessarily preclude the admission of rebuttal evidence. As this court said in Sanderson, at para. 38:It is true that compliance with Browne v. Dunn, as a general matter, may give “notice” of potential issues that the opposing party wishes to explore. That does not mean, however, that every suggestion put to a witness in compliance with the rule in Browne v. Dunn, or any question which foreshadows a possible attack on a witness’s credibility, necessitates the Crown calling evidence on the issue in its case in chief. Such a rule would amount to chasing every shadow. This is particularly true where the witness has not accepted a suggestion advanced and where, at the end of the Crown’s case, the witness has not been successfully impeached. [Emphasis added.]
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