Opening and closing statements

Fiddler v. Chiavetti, 2010 ONCA 210, released today, has a good summary of the law regarding opening and closing statements, and what counsel may or may not say, and what judges may do in response thereto:

 

 

I.     Addresses to the Jury:

 

[11]     It is frequently said that "[a] jury trial is a fight and not an afternoon tea.": Dale v. Toronto Railway (1915), 34 O.L.R. 104 (C.A.), at 108.  However, as Molloy J. wrote for the majority in Abdallah v. Snopek (2008), 89 O.R. (3d) 771 (Div. Ct.) at para. 1, "a jury trial is a 'fight' that must be conducted within rules designed to ensure fair play, including rules restricting counsel from resorting to inflammatory and irrelevant statements in their addresses to the jury." 

 

[12]     This court noted in Brochu, at para. 11 that the purpose of opening and closing statements differ, as do the limitations of each. 

 

[13]     The purpose of an opening statement is "to outline the story of the case, the issues and the evidence to be adduced to the jury in order that they will be better able to appreciate the significance of the evidence that follows and understand where it fits in with the overall case": Justice D. Ferguson, "The Law Relating to Jury Addresses", 16(2) Advocates' Soc. J. 19 (Summer 1997) at p. 21; see also Brochu at para. 12, citing J. Sopinka et al., The Trial of an Action, 2nd ed. (Toronto: Butterworths, 1998) at p. 74. 

 

[14]     The purpose of a closing statement is to persuade the trier of fact and "to present each party's case clearly and in a way that is of help to the court in the performance of its duty to decide the issues before it": see Linda S. Abrams and Kevin P. McGuinness, Canadian Civil Procedure Law (Markham:  LexisNexis, 2008) at 932.

 

(a)   opening statements:

[15]     In Burke v. Behan (2004), 6 C.P.C. (6th) 207 (Ont. S.C.J.), at para. 7, Quinn J. set out some examples of what an opening statement should not include.  While not exhaustive, I believe some of his examples are worth repeating:

 

·    Counsel may not assert personal opinions on the facts or the law;

 

·    Counsel should not make any comments that are inflammatory; i.e. they appeal to the emotions of the jurors and invite prohibited reasoning;

 

·    Inadmissible or irrelevant evidence may not be mentioned; and,

 

·    Counsel cannot argue his or her case.

 

[16]     The reason for the exclusion of such comments by counsel is rooted in the purpose of an opening statement.  As Cronk J.A. observed in Brochu, at para. 16:

 

… [C]omments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time.  Such comments are "inflammatory", in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning.  If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. [Citations omitted.]

 

[17]     Trial judges have a wide discretion to control opening addresses.  Where breaches occur, the trial judge may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial: Brochu, at para. 24.  

 

[18]     Generally courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant.  In this way, the jury will know what statements by counsel are wrong or inappropriate and will be left in no doubt about the way in which it is to approach its task: Landolfi v. Fargione (2006), 79 O.R. (3d) 767 (C.A.), at paras. 106-07.  This need not involve an admonishment of counsel, although, in some cases, that may be appropriate in the exercise of the trial judge's discretion.  

 

…

(b)   Closing statements:

[35]     Considerable latitude is afforded counsel concerning the permissible scope of a closing jury address in a civil trial, "even to extravagant declaration." Landolfi, at para. 76, citing Dale, at pp. 107-08.  Counsel has the right to make an impassioned address on behalf of his or her client and, in some cases, the duty to so do, provided it "does not offend in other respects." Idem.  

 

[36]     Thus, although counsel is given significant latitude to make their case as they see fit, there are also important limits on the bounds of a closing jury address.  For example, counsel's personal opinions, beliefs or feelings regarding the merits of a case are to be excluded.  Additionally, comments which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations are objectionable.  Such comments are "inflammatory", because they appeal to the emotions of the jurors and invite prohibited reasoning: Brochu, at para. 16.

 

[37]     As with opening addresses by counsel, the trial judge has three options when faced with impermissible closing statements.  The trial judge, in his or her discretion, may caution the jury, strike the jury and conduct the trial by judge alone, or declare a mistrial.