



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2013 ONCA 510

DATE: 20130809

DOCKET: C55310

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Lamar Griffith

Respondent

David Lepofsky, for the appellant

Paul Calarco, for the respondent

Heard: March 5, 2013

On appeal from the acquittal entered on March 12, 2012 by
    Justice David Aston of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

The Crown appeals from the
    judgment of Aston J. acquitting the appellant of a number of gun-related
    offences. The case is unusual. Following a days adjournment at the end of the
    evidence and submissions, the trial judge found the appellant guilty of the
    offences charged, with the exception of one charge of assault with the
    intention of resisting arrest. He then adjourned the matter for sentencing. On
    the return date, several months later, the trial judge told the parties that he
    had reconsidered the findings of guilt, and that he was reopening the matter of
    guilt and entering acquittals. The Crown challenges the trial judges
    jurisdiction to reopen the case. Crown counsel submits that even if the trial
    judge had jurisdiction, the procedure he followed was flawed and, in any event,
    the decision was wrong. He asks that the findings of guilt be restored and the
    matter remitted to the trial judge for sentencing or, in the alternative, that
    this court order a new trial.

[2]

For the following reasons, I
    would allow the appeal, set aside the acquittals in respect of the firearms
    offences, and order a new trial.

A.

THE FACTS

[3]

Just after midnight on
    February 28, 2011, the police saw a group of men arguing outside a building on Rogers
    Road in Toronto. As the police arrived, the respondent and two friends left the
    scene and began walking down an alley. The respondent was holding his right arm
    in a manner that led one of the officers to suspect he was armed. The police
    called for the three men to stop. Two of them complied. The respondent did not
    and began to walk faster. While one officer stayed with the respondents
    companions, the other officer, Constable Hayford, followed him, yelling at him
    to stop. The respondent began to run and turned into a second alley. When he
    reached a fence at the end of the second alley, the respondent fumbled at his
    waist band and then jumped the fence. He began to run again. A third officer
    testified that he ran around a building to where the second alley meets Scott Road
    in order to cut the respondent off. The officer yelled for the respondent to
    stop, but he kept running.  This officer, Constable Asner, was able to catch up
    to the respondent and arrest him after a brief scuffle. The respondent was
    charged with resisting arrest out of this scuffle. The trial judge acquitted
    the respondent of this charge and that acquittal is not an issue in the case.

[4]

Twenty-three minutes after
    arresting the respondent, Constable Asner, while searching the area, found a
    loaded handgun lying on the snow near the fence at the end of the second alley.
    A piece was broken off the guns handle. None of the officers had seen the
    respondent throw away the gun. On the other hand, the fact that the gun was
    dry, despite recent precipitation in the area, suggested that the gun had only
    been in the alley a short time. A fingerprint was found on the gun. That print
    did not belong to the respondent.

[5]

The respondent testified
    that, initially, he did not hear the police calling for him to stop. When he did
    hear the police, he did not stop because he was afraid the police would beat
    him up, as he believed they had done to his friend during a previous encounter
    between the respondent and the police. The respondent said he was clutching or
    adjusting his pants because they always fall down. A police video showing the
    respondents booking at the police station did not support this assertion by
    the respondent. The respondent denied throwing away the gun, and denied having
    any knowledge of the gun or that he had ever touched it.

THE FIRST DECISION: DECEMBER 21, 2011

[6]

The trial evidence concluded
    after a day and a half. The trial judge reserved his decision until the next
    day, at which point he delivered reasons acquitting the respondent of the
    resist arrest charge but finding him guilty of the firearm-related charges. He
    rejected the respondents explanation for not stopping for the police. He also
    found that the manner in which the respondent was moving was consistent with
    his carrying a concealed firearm. The fact that the fingerprint did not match
    the respondent simply showed that someone else had handled the gun and did not
    refute the possibility that the respondent also handled the gun. The trial
    judge concluded his reasons with the following:

On the gun-related charges, the circumstantial evidence
    establishes that Mr. Griffith probably was in possession of the loaded Ruger
    that the police found at the scene. The issue I have struggled with is whether
    that probability rises to the level of proof beyond a reasonable doubt. The
    fact that Officer Hayford did not actually see him discard the gun is not
    enough by itself, in my view, to leave me with a reasonable doubt. I need not
    repeat again what I have already said about her evidence on that point.

With the exception of the fingerprint on the gun, any other
    doubts that arise from the evidence are based on speculation or conjecture
    rather than any actual evidence or lack of evidence.

On consideration of the totality of the circumstantial
    evidence, I am satisfied that the Crown has met its burden of proof, and I find
    Mr. Griffith guilty on the gun-related charges in the indictment.

[7]

The parties agreed that
    there should be pre-sentence report and the case was adjourned for about three
    months for that purpose.

THE SECOND DECISION: MARCH 12, 2012

[8]

When the parties returned
    for sentencing, the trial judge immediately began to explain that he had found
    the decision a difficult one and that in the days after the conviction, he felt
    quite troubled by the decision to find the respondent guilty on the gun
    charges. He went on to explain that when he returned to his notes of his
    decision while preparing for the sentencing hearing, the nagging feeling came
    back. He had therefore decided that he must change the decision, and gave reasons
    for the change.

[9]

He stated that he would not
    change anything he said about the evidence or his assessment of it. However,
    when considering the cumulative effect and the totality of the evidence the
    trial judge believed he did not give adequate consideration to the totality of
    the frailties of that evidence. The trial judge then listed some of these
    frailties: that another fingerprint was found on the gun and that the
    respondent was not seen dropping the gun despite the fact that Constable
    Hayford was observing him and that it was found only a short distance from the
    fence. The trial judge acknowledged that he had dealt with these frailties
    initially, but continued:

I do not resile from these observations concerning the
    examination of these individual pieces of evidence, but the effect of
    minimizing the importance of these individual pieces was to fall into a trap,
    as I see it now, of not seeing the forest for the trees. Cumulatively, this
    evidence does lead to reasonable doubt.

On December 21
st
, I concluded that, with the
    exception of the fingerprint on the gun, any other doubts I have are based on
    speculation or conjecture rather than any evidence or lack of evidence. I was
    wrong, I considered the totality of the evidence from the Crowns perspective,
    but I did not give equal treatment to the defence perspective.

To convict Mr. Griffith raises the risk of a grave injustice.
    The Crown has presented a strong case, but I can no longer say in good
    conscience that Im sure the gun was in the possession of Mr. Griffith. I must
    find him not guilty and Im going to make that change in the verdict.

[10]

At
    this point, Crown counsel asked the trial judge whether he was
functus
and therefore unable to change the verdict. The trial judge stated that he was
    unable to find any law on the issue. He also stated that he had considered and
    rejected the option of simply declaring a mistrial because it was his
    responsibility, in a judge alone trial, to make the call one way or the other,
    rather than simply say I cant decide, or its impossible for me to say. The
    trial judge went on to say that he was satisfied that he did have jurisdiction.
    When Crown counsel tried to state his position, the trial judge intervened and
    said that Crown counsel had put his position on the record. The trial judge
    then addressed the respondent personally, and explained that he was entitled to
    the benefit of a doubt and that he was finding the respondent not guilty on all
    counts.

B.

Issues

[11]

This
    appeal raises, in essence, the two following issues:

1.

Did the trial
    judge have jurisdiction to vacate the adjudication of guilt?

2.

If so, what
    parameters should be set around the exercise of that jurisdiction?

C.

ANALYSIS

(1)

Jurisdiction to vacate the adjudication of guilt

[12]

On
    the basis of this courts decision in
R. v. Lessard
(1977), 30 C.C.C.
    (2d) 70, it cannot be doubted that the trial judge was not
functus
until he imposed sentence. In
Lessard,
Martin J.A., speaking for the
    court, held that a judge sitting without a jury is not
functus officio
until he has imposed sentence or otherwise finally disposed of the case. Therefore,
    a judge who has made a finding of guilt, either as a result of a guilty plea or
    on disputed facts, is empowered to vacate the adjudication of guilt at any time
    before a sentence is imposed. In
Lessard
, the court held that the
    trial judge had the power to grant an application by the accused to reopen his case
    after a finding of guilt so that he could adduce further evidence. But, at p.
    73, Martin J.A. stressed that the power to vacate the adjudication of guilt
    after a trial should only be exercised in exceptional circumstances and where
    its exercise is clearly called for.

[13]

Given
    the fact that the judge has jurisdiction to reopen the case, the scope of a
    Crown appeal from an acquittal in the circumstances of this case is necessarily
    narrow. As Martin J.A. described, at p. 75 of
Lessard
:

Since the trial Judge had a discretion to reopen the case and
    to permit the accused to give evidence (as I have held) the exercise of his
    discretion, unless he failed to exercise it judicially, is not subject to an
    appeal by the Crown which can be maintained only upon a ground of appeal that
    involves a questions of law alone under s. 605(1)(a) [now s. 676(1)(a)] of the
Code
: see
R v. Ash-Temple co. et al
, 93 C.C.C. 267, [1949]
    O.R. 315, 8 C.R. 66;
Darville v. The Queen
, (1956), 116 C.C.C. 113, 25
    C.R.1.

[14]

In
    this case, the appellant Crown attempts to cast
Lessard
s exceptional
    circumstances as a legal test that strictly confines the exercise of the
    discretion to reopen. The Crown provides a host of reasons why this discretion
    should be constructed narrowly, including the significant interest in finality of
    criminal proceedings and the practical reality that once the judge has
    delivered reasons, the intense interest and attention that he will have focused
    on the trial will wane as the judge turns to other matters. The Crown suggests
    that there are sufficient safeguards in the system, such as the broad scope of
    appeal, that wrongful convictions should not be a concern. The Crown also
    provides less compelling
in terrorem
arguments. For example, the Crown
    submits that if there were a broad power to reopen cases, every accused would
    have an incentive to delay sentence in the hopes that the judge would change his
    or her mind before sentencing.

[15]

Thus,
    the Crowns primary position on this appeal is that the judge has no power to reopen
    a conviction absent a partys application to reopen based either on fresh
    evidence or on a new argument that could not have been anticipated before the
    conviction. The Crown attempts to derive this limit on the power to reopen from
    the fact that there is no statutory mandate to reopen a case and the fact that
    an accused has a right of appeal.

[16]

I
    would not give effect to this submission. While I accept that the power to reopen
    is to be exercised only in exceptional circumstances, there is nothing in
Lessard
,
    or in the cases referred to in
Lessard,
that would limit the power to
    an application by one of the parties. Rather, at p. 73 of
Lessard
,
    Martin J.A. referred to
S. (An Infant) v. Recorder of Manchester,
[1970] 2 W.L.R. 21, and founded the power to reopen on the duty of the court to
    clear the innocent  a duty equal or superior in importance to its duty to
    convict and punish the guilty.

[17]

To
    take one clear example, if the law under which the accused was convicted was
    held to be unconstitutional between conviction and sentence, it would be open
    to the judge to reopen the case and vacate the conviction, even if there had
    been no application by the accused or the Crown. Although, as I will explain
    below, the proper remedy in this case was to declare a mistrial and not enter
    an acquittal, the absence of a statutory basis does not deprive a trial judge
    of the power to reopen the case: see
Re Regina and Bertucci
(1984), 11
    C.C.C. (3d) 83 (Sask. C.A.), at p. 88.

[18]

It
    follows that I would not give effect to the Crowns jurisdictional argument. I
    therefore turn to what Crown counsel referred to as his secondary position.

(2)

Parameters
    on the exercise of the jurisdiction to vacate the adjudication of guilt in this
    case



[19]

Crown
    counsels secondary position constitutes a minimal retreat from his primary
    position. He submits that even if a trial judge has jurisdiction to reopen a
    conviction on his or her own motion, it is a jurisdiction that can only be
    exercised in compelling circumstances. To that end, he suggests a test stricter
    than the exceptional circumstances test set out in
Lessard
to govern future situations in which a judge intends
    to overturn a conviction he or she has made
. He suggests an
    elaborate procedure that would include a preliminary screening by a review of
    all of the evidence, notice to counsel and an opportunity for the parties to
    make submissions, a requirement to take special care to not over-inflate the
    beyond a reasonable doubt burden because of a lurking doubt as to the
    correctness of the conviction, an enhanced duty to give reasons, and only one
    remedy, namely, a mistrial.

[20]

I
    would reject this position. The test for reopening a finding of guilt was set
    in
Lessard
. Subject to what I say below concerning procedural
    requirements required by the necessity for due process, I can see no need for
    engrafting on the
Lessard
test

a restrictive procedure that
    would fetter a trial judges discretion. The Crowns secondary position reprises
    concerns already voiced: that an unfettered discretion will lead to a floodgate
    of convictions being overturned by trial judges, disrupting the normal
    appellate process, and undermine the principle of finality in criminal
    proceedings. Both of these are cornerstones of our modern adversarial system.
    In my view, no case has been made out for such an elaborate procedure.

[21]

First,
    the
Lessard
test has stood the test of time. Applications to reopen a
    conviction are rare. Where the application is based upon new evidence, the
    courts have adapted the
Lessard
test to reduce the likelihood that the
    procedure will undermine the normal appellate process in a way consistent with
    the enhanced interest in finality once a verdict has been delivered. Thus, the
    trial judge is required to apply the same test from
Palmer v. The Queen,
[1980] 1 S.C.R. 759, that an appellate court would apply when an appellant
    seeks to introduce fresh evidence on his appeal. The judge will also take into
    account whether the application is an attempt to reverse a tactical decision: see
R. v. Kowall
(1996), 108 C.C.C. (3d) 481 (Ont. C.A.) at 493 and
R.
    v. Kippax
, 2011 ONCA 766, 286 O.A.C. 144 at paras. 62-63.

[22]

Second,
    the floodgates argument simply is not borne out by practice. Aside from this
    case, we were referred to no other cases in which a trial judge reversed a final
    adjudication on his or her own motion.

[23]

Third,
    in my view, the phrase exceptional circumstances already captures the
    essential point that it will only be in very rare cases that a judge would reopen
    a conviction. Indeed, in
Lessard
, at para. 12,

this court
    said that the exercise of vacating an adjudication of guilt must be clearly
    called for. Such a principle will recognize the strong interest in finality, as
    well as other institutional concerns that are so deeply ingrained in our common
    law system.

[24]

In
    a case such as this, where the trial judge has already entered a conviction, one
    institutional concern is the fact that Parliament has established a generous
    appeal process that is primarily responsible for reviewing criminal
    adjudications. Section 675 of the
Criminal Code
, R.S.C. 1985 c. C-46
gives an accused
    convicted of an indictable offence a right of appeal on questions of law alone
    and, with leave, on questions of mixed fact and law or fact alone, or on any
    other sufficient ground of appeal. A defendant convicted of a summary
    conviction offence has similarly broad rights of appeal. As the Supreme Court
    of Canada said, albeit in a different context, in
Doucet-Boudreau v. Nova
    Scotia (Minister of Education),
[2003] 3 S.C.R. 3 at para. 79:

It is clear that the principle of
functus officio
exists to allow finality of judgments from courts which are subject to appeal
    (see also
Reekie v. Messervey
, [1990] 1 S.C.R. 219, at pp. 222-23).
    This makes sense: if a court could continually hear applications to vary its
    decisions, it would assume the function of an appellate court and deny
    litigants a stable base from which to appeal.

[25]

Another
    consideration is the fundamental aspect of the adversary system that limits the
    trial judges role. While the trial judge is not simply an umpire, the judge is
    not to enter the arena and appear to take on the role of an advocate:
R. v.
    Stucky,
2009 ONCA 151, 240 C.C.C. (3d) 141 at paras. 69-72. When a judge,
    having already made a decision, publicly questions the legitimacy of that
    decision on his or her own motion, the judge may appear to the parties and the
    public to have left the role of neutral fact finder and taken up a role closer
    to that of advocate.

[26]

In
    addition, the longer the time that has elapsed between the finding of guilt and
    the reconsideration of the verdict, the greater the risk of an appearance of
    unfairness, an apprehension of bias or the possibility of a tainted
    decision-making process. Simmons J.A. implicitly referred to these concerns in
    her concurring reasons in
R. v. Malicia
(2007), 82 O.R. (3d) 772
    (C.A.), a case involving a judge correcting an omission in the sentence already
    imposed. While the case was decided in a different context, its message that
    trial judges should be alive to the reasonable apprehension of taint is
    informative to this appeal.  At para. 50, she states:

Without commenting on whether it would raise a reasonable apprehension
    of taint, as an example, I would cite delay between the time of rendering a
    decision and the time of identifying an error as the type of circumstance that
    might be considered in the future. Similarly, I would not foreclose the
    possibility that the fact that judges typically give reasons for their
    decisions might be a factor that could influence whether the remedial
    jurisdiction to correct a verdict in criminal judge alone trial should be
    exercised.

[27]

Thus,
    in my view, because the
Lessard
test is rigorous enough to accommodate
    these considerations, neither the strict procedure nor the higher standard put
    forward by the Crown is necessary for a trial judge to revisit his or her
    decision to convict. The question then is the manner in which the trial judge
    exercised that discretion in this case.

(3)

Application to this
    case

Revisiting an adjudication of guilt

[28]

I
    accept that in a judge-alone trial, a judge cannot be required to sentence
    someone who he believes has not been proved guilty beyond a reasonable doubt.
    This issue was considered in passing by Huband J.A., dissenting, in
R. v.
    Urbanovitch and Brown
(1985), 19 C.C.C. (3d) 43 (Man. C.A.), at p. 75:

Was it improper for the learned trial judge to change his view
    of the evidence between the date of conviction and sentence? Clearly not. In
    the case of
R. v. Lessard
(1976), 30 C.C.C. (2d) 70, 33 C.R.N.S. 16,
    the Court of Appeal of Ontario in a judgment by Martin J.A., concluded that the
    trial process continues through to the end of the sentencing process, and even
    the verdict itself is susceptible to change.
Suppose that the learned trial
    judge simply had second thoughts, and, after considering the case further,
    decided, before imposing sentence, that he did indeed have reasonable doubt as
    to the guilt of the accused. It surely becomes his duty to alter the verdict
    rather than allow the conviction to stand, in spite of presence of a reasonable
    doubt in the mind of the trier of fact
. In this case, the learned trial
    judge maintained the verdict, but obviously had second thoughts with respect to
    a critical finding of fact - a finding of fact which influences sentence and
    the prospects of success on appeal. [Emphasis added.]

[29]

The
    issues in
Urbanovitch and Brown
were different than the issues in this
    case. The trial judge had not set aside the conviction but had used information
    in the pre-sentence report to reconsider the level of culpability of one of the
    accused for sentencing purposes. The case turned on the proper use of
    information in the pre-sentence report. Nevertheless, I agree with Huband J.A.
    that a trial judge cannot be required to impose sentence in a judge-alone trial
    where the judge has a reasonable doubt. Obviously, entirely different
    considerations apply where the finding of guilt is by a jury, because the trial
    judge will be
functus
: see
R. v. Henderson
(2005), 189 C.C.C.
    (3d) 447 (Ont. C.A.), at para. 29. But, it seems to me that it would bring the
    administration of justice into disrepute to require a judge to impose sentence
    when he has come to doubt his own reasons and voiced those concerns to the
    parties.

[30]

In
R. v. Fauteux
(1997),
    54 Alta. L.R. (3d) 43,
at paras.
36-37, Fruman J. also made
    passing comments on the reality that judges may have second thoughts, and referred
    to
Spataro v. The Queen,
[1974] S.C.R. 253,

where Laskin J.,
    in dissent, spoke of the courage required for a judge to admit his or her
    misgivings. In
Fauteux
, the judge was
functus
, so the
    situation is, again, different from this case. Nevertheless, Fruman J.s
    thoughts are instructive:

In
Spataro,
Laskin J. at 271 suggests it is an
    exhibition of courage for a judge to admit his misgivings and change his
    position. He refers to
Boucher v. The King
[1951] S.C.R. 265, in which
    the case was reargued after the distribution of written reasons. Kerwin J.
    modified his earlier position because "as a result of [the reargument] I
    have been persuaded that the order suggested by me is not the proper one to
    make" (at 282). In
The Queen v. Drybones
[1970] S.C.R. 282
    Cartwright C.J.C., "after a most anxious reconsideration of the whole
    question, in the light of the able arguments adduced to us by counsel" (at
    287), receded from the position he had taken on the same issue in
Robertson
    and Rosettani v. The Queen
[1963] S.C.R. 651.

Once a trial judge is
functus
, he cannot reopen the
    case and convene a rehearing, as an appellate court might. Even so, I cannot
    accept that the right to enunciate a change of mind is reserved exclusively to
    appellate judges. A trial judge must be permitted an opportunity to make a
    similar confession and exhibit the same degree of courage.

[31]

The
    circumstances of this case satisfy the exceptional circumstances standard set
    out in
Lessard
.

Having formed second thoughts about the
    respondents guilt, and then voiced them, the trial judge had a duty not to
    convict. The question that then arises is what should have followed from the
    trial judges admission of his misgivings.

[32]

I
    have two concerns with the manner in which the trial judge exercised his
    discretion in this case. These concerns lead me to find that he erred in law in
    entering an acquittal. One concern is procedural and has to do with the
    requirements of natural justice; the other is with the remedy chosen by the
    trial judge.

Natural justice concerns

[33]

In
    my view, it was an error in law to enter an acquittal without providing the
    parties, especially Crown counsel, an opportunity to make submissions. The
    parties were entitled as a matter of natural justice to address the
    circumstances in which a guilty verdict could be set aside and, if set aside,
    the appropriate remedy.

[34]

The
    comments of the Supreme Court of Canada in
R. v. E. (A.W.),
[1993] 3
    S.C.R. 155 (S.C.C.), are instructive. In that case, the trial judge had, on his
    own initiative, written to the appellate court while its decision was under
    reserve, and expressed his reservations about the guilty verdict returned by
    the jury. The court commented on the use to be made of trial judges reports
    under s. 682 of the
Criminal Code
,
    and observed that because they allow the trial judge to give a subjective view
    of what transpired to the appeal court, they risk encouraging a situation
    fraught with the possibilities of unfairness
.

[35]

Cory
    J., speaking for the majority, held that the court of appeal should not routinely
    request such reports from trial judges but only in unusual circumstances where there
    is something that is not reflected on the record and on which opposing counsel
    cannot agree.  Cory J. continued, at p. 192:

In those rare cases, trial counsel ought probably to be
    afforded an opportunity to appear before the trial judge in order to make
    submissions with regard to the requested report.
Further, when the report
    is made, copies should be provided to counsel appearing on the appeal so that
    they may make representations with respect to it. [Emphasis added.]

[36]

In
    the case at bar, the circumstances of the trial judges decision to vacate the
    verdict of guilty and enter an acquittal gave rise to a question about his
    objectivity, the legitimacy of the decision making and, at the least, was
    highly contentious. It was therefore an error for the trial judge to give his
    decision on setting aside the finding of guilt without giving the parties the
    opportunity to make submissions.

Remedy

[37]

I
    am also of the view that the trial judge erred in law in entering an acquittal.
    As Watt J.A. observed in
R. v. Arabia
, 2008 ONCA 565, at para. 50, a
    case involving an application by the accused to reopen the case after the trial
    judge had entered a conviction, the courts have not identified the preferential
    ordering of remedies, nor articulated the factors to be considered in choosing
    a remedy. Where the judge has agreed to a defence request to reopen a case to
    permit the admission of further evidence, the trial judge will be required to
    determine whether to continue the proceedings to a verdict or declare a
    mistrial.

[38]

I
    need not decide what the appropriate remedy is in every case where a judge
    raises an issue about the validity of his or her decision. In the circumstances
    of this case, the trial judge erred in entering an acquittal. The trial judge
    had publicly voiced concerns about his decision and had, without submissions,
    decided to set aside the finding of guilt. In those circumstances, he could not
    realistically receive and consider submissions, as he should have, on the very
    issue that he had already decided. The procedure he adopted not only tainted
    the fairness of the process but undermined the legitimacy of the remedy.

[39]

Admittedly,
    a mistrial should only be granted as a last resort where no other remedy will
    adequately redress the harm occasioned:
R. v. Toutissani,
2007 ONCA
    773, at para. 9. In this case, the trial judge rejected the mistrial option
    because, since this was not a jury trial, he was required to make a decision
    one way or the other. But his options were not so limited. He was not required
    to continue to a verdict and, in doing so, he failed to take into account the
    impact that this course of action had on the perception of the administration
    of justice.

[40]

The
    approach taken by Trotter J. in
R. v. Drysdale
, 2011 ONSC 5451,
    provides a useful example of the approach that might have been taken in this
    case. In
Drysdale
, the trial judge, in convicting the accused, had
    made very strong adverse credibility findings after rejecting the accuseds
    evidence on a key issue going to identification. New evidence touching on
    identification came to light at the sentencing hearing, and the trial judge
    permitted the trial to be reopened and the findings of guilt set aside. The
    trial judge then concluded that the only reasonable course of action would be
    to declare a mistrial because, in light of the credibility findings, any
    attempt to judge the accuseds credibility on a different basis would be
    disingenuous. In the trial judges view, any result he reached would be open to
    question and the only way to avoid that possibility would be to begin again
    with a new trial.

[41]

Similarly,
    in this case, the trial judge having publicly voiced concerns about his
    decision in definitive terms could not reasonably proceed to verdict. He could
    not realistically consider the Crowns submissions, had he permitted them, as
    to why he should not change the verdict, since he had already made the decision
    to set aside the verdict. A reasonably informed member of the public would not
    be able to accept that the trial judge would be able to objectively judge his
    own deliberative process. Since the earlier convictions could clearly not be
    maintained, the only reasonable outcome was to declare a mistrial.

[42]

While
    it is not a perfect analogy, what occurred here is also similar to the issue
    addressed by this court in
R. v. Hargraves
(1983), 69 C.C.C. (2d) 380,
    where the trial judge entered an acquittal, at the close of the Crown case and
    after the accused made a submission of no case to answer, because she had a
    reasonable doubt. When it was drawn to her attention that she had used the
    wrong test, defence counsel requested permission to withdraw the motion and
    call no evidence. The trial judge agreed and then entered an acquittal. On a
    Crown appeal, Martin J.A. held that the procedure vitiated the trial and that
    the trial judge should have declared a mistrial. In doing so, he referred, at
    p. 384, to the decision of the Supreme Court of Canada in
R. v. Morabito
,
    [1949] S.C.R. 172, in these terms:

As Mr. Justice Kellock pointed out in
R. v. Morabito
,
supra
,
    the public has an interest in the proper trial of accused persons. It is
    essential, in our view, that the fundamental rules for a fair trial be observed
    in the interest of the public as well as the accused. Although the trial judge
    was endeavouring to be fair we think those principles were contravened by what
    occurred here and the contravention resulted in a substantial wrong and a
    miscarriage of justice.

[43]

In
    view of the trial judges errors in entering acquittals without receiving
    submissions and entering a verdict of acquittal when he should have declared a
    mistrial, the Crown appeal must be allowed. Mr. Lepofsky fairly acknowledged
    that if this court found that there was no jurisdictional error but only
    procedural errors, the appropriate remedy would be a new trial rather than an
    order restoring the conviction.

D.

DISPOSITION

[44]

Accordingly,
    I would allow the appeal, set aside the acquittals, and order a new trial on
    the weapons charges. The respondents acquittal on the resisting arrest charge
    is unaffected by the errors.

Released: MR August 9, 2013

M. Rosenberg J.A.

I agree. R.G.
    Juriansz J.A.

I agree. G.J.
    Epstein J.A.


