Simon's Megalomaniacal Legal Resources

Criminal - Re-Opening

. R. v. A.I.B.

In R. v. A.I.B. (Ont CA, 2023) the Court of Appeal considered (on appeal) a trial application to re-open the proceeding:

SECOND GROUND OF APPEAL: RE-OPENING THE TRIAL

Facts

[20] Following his conviction, the appellant applied to re-open the trial, or declare a mistrial, on two main grounds:

. First, the decision of this court in C.L. was released after his conviction. The appellant argued that C.L. had altered the law regarding the application of W.(D.) principles as set out in J.J.R.D., a decision upon which the trial judge had relied. Accordingly, the trial should be re-opened and the appellant’s culpability decided based upon the new law in C.L.;

. Second, the complainant’s victim impact statement delivered just before the sentencing hearing disclosed material inconsistencies with her trial evidence that compelled either a mistrial or a re-opening of her evidence.

[21] The trial judge denied the appellant’s application.

Analysis

[22] There is no dispute that in deciding the application the trial judge properly identified the governing principles as those articulated by this court in Regina v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.) and R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561:

. The power of a trial judge to vacate an adjudication of guilt after a trial and before a sentence is imposed should only be exercised in exceptional circumstances and where its exercise is clearly called for, which should occur only in very rare cases: Lessard, at p. 73; Griffith, at paras. 12 and 23; and

. Where an application to re-open is based upon new evidence, the trial judge is required to apply the same test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 that an appellate court would apply when an appellant seeks to introduce fresh evidence on his appeal: Griffith, at para. 21.