Indexed As:

Whitford v. Swan

Between
Karen Whitford, Mark Whitford and Murial McQuarrie,
plaintiffs, and
Dave Swan, defendant

[1995] O.J. No. 4189

Ontario Court of Justice (General Division)
Barrie, Ontario
Logan J.

Oral judgment: October 23, 1995.
(4 pp.)

Ruling on motion to use demonstrative aids during the opening address to the jury.

Practice - Juries and jury trials - Conduct of jury trial - Address and remarks of counsel, inflammatory statements and demonstrative depictions.

Ruling on a motion to use demonstrative aids during the opening address to the jury.

HELD: The aids in question would not have an inflammatory effect and would possibly be informative so as to assist the jury in understanding their responsibilities. The aids were not excessively demonstrative and counsel could use them upon an undertaking to prove them during the course of the trial. The judge determined that he would instruct the jury about their purpose in his opening statement.

Counsel:

B. Bangay, for the defendant.
R. Oatley, for the plaintiffs.

RULING

1. LOGAN J. (orally):- The motion deals with the use of demonstrative depictions in the opening address by counsel.



2. The purpose of an opening statement is to outline the case to be presented. It is not to mislead or inflame the jury. The former is informative and the latter, prejudicial. Prejudicial comments made in an opening address may well taint the integrity of the trial.



3. Demonstrative depictions in the opening statement may assist the jury in understanding their subsequent trial responsibilities. If, on the other hands the demonstrative depictions mislead or inflame the jury, they should be excluded from the opening statement.



4. Each aid must be assessed on its own merit. It may mislead if counsel does not undertake in advance to prove the aid. It may inflame the jury if common sense dictates that the aid in question is excessively demonstrative.



5. I have examined each of the aids to which counsel intends to make reference in the opening statement. If he is prepared to undertake to prove the same during the course of the trial, I do not find them excessively demonstrative. They may assist the jury.



6. Subject to the usual verbal restraints and an undertaking by counsel that the aids in question will be subsequently proved, I find that they may be used.



7. They do not offend the comments made by Kelly, J. in SHIPMAN v. ANTONIADIS 58 D.L.R. (3d) 321. At page 322, Kelly, J. said:
   
   The dangers of the inflammatory effect on a jury would so far outweigh the possible value of the evidence as probative of compensable damage that Courts should be loath to run the risk of impairing the integrity of the trial by allowing the introduction of such evidence and the use of exhibits for purposes not more closely related to the proof of the essential issues the trial Judge is called upon to leave to the jury.



8. I do not find that the aids in question would have such an inflammatory effect. They may be informative and I will instruct the jury about their purpose in my opening statement.

LOGAN J.

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