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Review - Re-opening - Criminal (2). R. v. Chheda
In R. v. Chheda (Ont CA, 2026) the Ontario Court of Appeal grants a Crown criminal court motion to "summarily dismiss the application brought by the appellant, Mr Chheda to reopen his appeal".
Here the court considers re-opening doctrine and the principle of 'finality', here both in a criminal appeal context:[7] Where no formal order has been issued dismissing an appeal, this court has jurisdiction to permit an appellant to reopen their appeal. This jurisdiction arises from the court’s inherent or ancillary powers. This power is exercised sparingly: R. v. Smithen-Davis, 2020 ONCA 759, at paras. 33-35, 37, 40, 45; R. v. Carignan, 2021 ONCA 899, at para. 3. Because no formal order was issued dismissing the appellant’s appeal, the court has jurisdiction to consider the appellant’s application to reopen.
[8] For an appeal to be reopened, the party seeking to reopen must satisfy the court that it is in the interests of justice to do so. The applicant must show a “real concern” or a “clear and compelling case” that a miscarriage of justice will occur if the appeal is not reopened: Smithen-Davis, at paras. 34-35; Carignan, at para. 3.
[9] The court will consider the following factors in deciding whether it is in the interests of justice to permit the reopening of an appeal:(i) the principle of finality;
(ii) the risk of a miscarriage of justice;
(iii) the cogency of the case for reopening;
(iv) the nature of the error or omission alleged to require reopening; and
(v) the significance of the alleged error to the disposition of the appeal. In substance, these five factors engage the court in weighing the principal of finality with whether the record provides a basis for concern that there has been a miscarriage of justice: Smithen-Davis, at paras. 56-57.
[10] On a motion to summarily dismiss an application to reopen an appeal, the Crown bears the burden to establish that the application to reopen the appeal has “no reasonable prospect of success”: Smithen-Davis, at para. 63; R. v. Benhsaien, 2024 ONCA 487, at para. 12.
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1. The principle of finality
[14] In this case, the principle of finality weighs strongly against the application to reopen the appeal because of the very lengthy delay in bringing the application to reopen and the lack of sufficient explanation for the delay.
[15] In R v. E.F.H.; R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at p. 101, leave to appeal refused, [1997] S.C.C.A. No. 256; [1997] S.C.C.A. No. 274, Charron J.A., as she then was, expressed the importance of finality as follows:Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal. [Emphasis added.] [16] The concerns expressed in Rhingo are apposite in this case. The appellant’s appeal was fully argued before this court. On his own account in his affidavit filed on the application to reopen, he accepted the advice of counsel regarding how the appeal should be presented. Now, five years after the appeal was dismissed, he seeks to raise additional arguments – including providing an account of the events at issue in the charges when he chose not to testify at trial – in hopes of a different result.
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Conclusion and disposition
[27] Given the very lengthy delay in this matter, and the lack of merit of the appellant’s application to reopen his appeal, the public interest in finality strongly outweighs the appellant’s interest in challenging his conviction by way of reopening his appeal. The application to reopen the appeal has no reasonable prospect of success. . R. v. H.S.
In R. v. H.S. (Ont CA, 2023) the Court of Appeal considered 're-opening' a criminal trial, here on the basis of a victim impact statement (VIS):(1) The Trial Judge Did Not Err in Dismissing the Application to Reopen the Trial
[26] In my view, there is no basis for this court to interfere with the trial judge’s discretionary decision not to reopen the trial on the basis of the complainant’s VIS.
[27] As this court recently affirmed in R. v. A.I.B, 2023 ONCA 557, at para. 22, 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 cases and where its exercise is clearly called for. This should occur only in very rare cases, given the justice system’s strong interest in finality, as well as institutional concerns arising from the fact that trial courts ought not to assume the functions of an appellate court: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 21 and 23-24.
[28] The principle that trial judges should vacate a conviction only in “very rare cases” applies with particular force where an accused seeks to reopen the case based on a complainant’s VIS. Parliament’s purpose in providing for the introduction of such statements was to give victims a voice in the criminal justice process, to provide a way for them to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. If victims could routinely be cross-examined based on an alleged inconsistency between their VIS and their trial evidence, they would be discouraged from offering such statements and risk being revictimized through any subsequent cross-examination: R. v. W. (V.), 2008 ONCA 55, 89 O.R. (3d) 323 (C.A.), at para. 28.
[29] Given these concerns, it is unsurprising that appellant’s counsel was unable to identify any reported case over the past 30 years where a conviction had been vacated on the basis of an allegedly inconsistent VIS tendered during sentencing.
[30] I conclude that, where an appellant seeks to vacate a conviction on the basis of a complainant’s VIS, the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, for adducing fresh evidence should be applied with the following considerations in mind: (i) the alleged inconsistency between the VIS and the complainant’s evidence at trial should be plain and obvious; (ii) the relevant portions of the complainant’s trial evidence must have played a central and essential role in the trial judge’s reasoning leading to a conviction; and (iii) the obviously inconsistent statement(s) in the VIS, had they been known at the time of the trial, would likely have affected the result.
[31] I would add that the determination by the trial judge whether to vacate the conviction based on the Palmer test, taking into account the considerations described above, is entitled to deference and should be overturned only in cases of a palpable and overriding error. . 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. . R. v. Prasad
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal dismissed appellant motions to admit the fresh evidence and his motion to reopen the appeal.
Here the court sets out "the principles governing reopening an appeal", emphasizing the need for finality of appeal proceedings:(3) Should the appeal be reopened?
[91] Given the answer on the first two issues, there is no need to address this issue, but I do so on the basis that it was argued and might affect future cases. The tension in a motion to re-open an appeal is between finality and avoiding a miscarriage of justice. Finality is of great weight, as Charron J.A. said in Rhingo, at p. 214:Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal. [Emphasis added.] [92] Under s. 683(1)(d) of the Criminal Code, an appellate court may receive the evidence of any witness when the court considers it “in the interests of justice to do so.” In the context of reopening an appeal, “[t]he core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent reopening”: Smithen-Davis (2020), at para. 35. This court has reflected on the intersection between reopening an appeal and the reception of fresh evidence: Manasseri, at paras. 200-252; Smithen-Davis (2020), at paras. 58-60; Smithen-Davis, 2022 ONCA 832, per Pepall J.A. at para. 35 and following.
[93] I extract the following governing principles from these cases, which I paraphrase in the interests of brevity:. First, finality carries great weight in the calculus because there has already been a full trial process and an appeal on the merits.
. Second, the moving party must establish a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened.
. Third, that clear and compelling case may be established using fresh evidence. [94] I need not address again the first and third bullets. This appeal turns on the second – whether the moving party has established a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened. For the reasons set out above, the expert evidence is neither necessary nor cogent. I see no ground on which it could be said, based on the fresh expert evidence, that the trial resulted in a miscarriage of justice. . R. v. Hepfner
In R. v. Hepfner (Ont CA, 2023) the Court of Appeal considered the test for re-opening, here a summary conviction criminal appeal:[9] The circumstances in which a court may permit the re-opening of an appeal are closely circumscribed: R. v. Smithen-Davis, 2022 ONCA 832, 421 C.C.C. (3d) 56, at para. 31. The moving party has not established a clear and compelling case that a miscarriage of justice will likely occur absent a re-opening. Finality is an important principle and prevails in this case.
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