L'ordre des témoins relève de la prérogative des parties et il est inapproprié pour la Poursuite de faire un commentaire sur le fait que l'accusé ne témoigne pas en premier pour sa défense

R. v. Hudson, 2021 ONCA 772

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[157]   The governing principles are well known.

[158]   First, the order of witnesses.

[159]   A trial judge has no authority to direct an accused to call witnesses in any particular order or to give evidence before any other witnesses: R. v. Sabir, 2018 ONCA 912, O.R. (3d) 465, at para. 39. The order or sequence in which defence witnesses testify is for counsel or the accused to determine: R. v. Smuk (1971), 1971 CanLII 1197 (BC CA), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462.

[160]   Second, the evidentiary significance of an accused’s right to be present at trial and to determine the sequence of defence testimony. A person accused of a crime is statutorily required and constitutionally entitled to be present at their trial: R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24, citing R. v. Laws (1998), 1998 CanLII 7157 (ON CA), 128 C.C.C. (3d) 516 (Ont. C.A.), at para. 79; Criminal Code, s. 650(1). And at their trial, an accused is entitled to make full answer and defence: G.V., at para. 24.

[161]   To give proper effect to this obligation and their entitlements, additionally an accused’s right to a trial that is at once apparently and actually fair, it is legally wrong for the Crown or the trial judge to invite the jury to impugn or discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom: G.V., at para. 25. Despite the logic in the suggestion that, as a person who gets full advance notice of the case for the Crown and testifies last, an accused is in a position to tailor their evidence to fit the case presented. However, the logic notwithstanding, no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise: G.V., at para. 26, citing R. v. White (1999), 1999 CanLII 3695 (ON CA), 42 O.R. (3d) 760 (C.A.), at para. 20.

[166]   It is common ground that Crown counsel’s reference to a convention that an accused testifies as the first defence witness is simply wrong. No such convention exists. The order of defence witnesses is for the defence to determine. It is not subject to bright-line rules. There is no set list. This erroneous statement of the law remained uncorrected.