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Review - Re-opening - Trial/Hearing. 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. R.G.
In R. v. R.G. (Ont CA, 2023) the Court of Appeal considers the law of 're-opening' a trial, here in a criminal trial context (but the law is largely applicable to both civil and criminal) and involving fresh evidence issues:[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.
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The Law on Reopening
[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.
[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.
[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
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The Application of Due Diligence
[104] Due diligence retains an essential purpose at reopening applications. Certainty and finality demand that everyone put their best foot forward at trial. Without a robust application of the due diligence criterion, trials would become trial runs, institutional concerns would abound, and victims would be endlessly revictimized. The integrity of the administration of justice simply cannot invite the relaxation of expectations that all, including defence counsel, advance their cases – their whole cases – the first time around.
[105] Therefore, as in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence. . R. v M.P.
In R. v M.P. (Ont CA, 2023) the Court of Appeal comments importantly on when a motion to re-open a trial is appropriate, as opposed to a motion for fresh evidence on appeal:[23] We also agree with the Crown that there is no explanation offered for the failure to adduce this evidence at trial. While due diligence is not a prerequisite to receiving fresh evidence on appeal, it is an important consideration. In any event, as the evidence was available prior to sentencing, the evidence should have been brought forward before the trial judge on a motion to reopen the trial: R. v. Khan, 2022 ONCA 698, at paras. 16-17. . R. v. Khan
In R. v. Khan (Ont CA, 2022) the Court of Appeal considered functus officio and the re-opening of a case, here in a criminal context:[15] In a judge-alone criminal trial, trial judges are not functus officio until after they have imposed a sentence or otherwise made a final disposition in the matter: see R. v. Sualim, 2017 ONCA 178, 135 O.R. (3d) 81, at para. 29, referring to R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73, and R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12.
[16] Accordingly, as stated in R. v. Kraftchick (1991), 44 O.A.C. 313 (C.A.), at p. 315, the appropriate time to seek to reopen a trial is during the sentencing hearing:The trier of fact in this case was the trial judge and he was still seized of the case at the sentencing hearing. The sentencing hearing was the appropriate time to ask the trial judge to re-open the conviction issue and, if it was thought necessary, to direct a mistrial. No such application was made by the defence. [17] Furthermore, where an application to reopen rests on the admission of additional evidence, the applicant must meet the criteria for fresh evidence in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759: see R. v. N.G., 2020 ONCA 494, 152 O.R. (3d) 24, at para. 43. . Trigonakis v. Sky Regional Airlines Inc.
In Trigonakis v. Sky Regional Airlines Inc. (Fed CA, 2022) the Federal Court of Appeal considered that re-opening a case is barred when the court is functus officio, here in a federal case:[11] Just before our hearing, the respondent filed amended reasons for judgment of the Federal Court. Apparently, after the Federal Court had rendered judgment in this matter and became functus, it amended its reasons. In these circumstances, this was wrong. After becoming functus, a court may correct typographical and grammatical errors and other non-substantive errors in its reasons for judgment but it cannot make substantive changes. This is the natural operation of the doctrine of finality and Rules 397-399 discussed by this Court in Canada v. MacDonald, 2021 FCA 6. In this case, some of the amendments the Federal Court made to its reasons went beyond these limits. They should not have been made. Accordingly, in considering this appeal, we did not consider the Federal Court’s amended reasons. In any event, the amended reasons do not affect our reasoning or observations above or the disposition of this appeal. . Chuang v. Toyota Canada Inc.
In Chuang v. Toyota Canada Inc. (Ont CA, 2016) the Court of Appeal comments on the standard required for an already-decided appeal to be re-opened:[7] A party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle. After more than 10 years of litigation, it would be unfair to permit the appellants to re-open their appeal on a different legal issue. In Mujagic v. Kamps, 2015 ONCA 360 (CanLII), 125 O.R. (3d) 715, at para. 12, this court said that the power to re-open an appeal “will be exercised sparingly and only where it is clearly in the interests of justice” (citation omitted). It is not in the interests of justice that this appeal be re-opened. . Bajouco v. Green
In Bajouco v. Green (Ont CA, 2017) the Court of Appeal references the high standard to be met to re-open an already-decided appeal:[24] As indicated in Meridian Credit Union Limited v. Baig, 2016 ONCA 942 (CanLII), at para. 7, a party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle, and a court will re-open an appeal sparingly and only where it is clearly in the interests of justice. . Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942
In Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942 (Ont CA, 2022) the Court of Appeal considers the interaction between the R59.06 general set aside motion jurisdiction and a general power to re-open appeals:[6] The first observation that we would make is that Baig’s reliance on r. 59.06 of the Rules of Civil Procedure is misplaced. Rule 59.06(1) addresses the jurisdiction of the court to amend an “order” where it contains “an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate”. Rule 59.06(2) allows a party to move for the court to modify or set aside an order under particular conditions; to suspend the operation of an order; to carry an order into operation; or to obtain relief other than that originally awarded. All of these grounds for re-opening an appeal concern orders, whereas Baig alleges errors in this court’s reasons; no order has yet been taken out.
[7] Nevertheless, generally speaking, there is no jurisdictional impediment to this court reconsidering its decision when no order has been taken out and entered: Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 5. However, a party seeking to re-open an appeal after the appeal decision has been rendered faces “a high hurdle”: Chuang v. Toyota Canada Inc., 2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the entering of the order “sparingly and only where it is clearly in the interests of justice”: Mujagic, at para. 12. Baig has not raised the kind of “rare circumstance” where “the interests of justice” would require us to withdraw our reasons and rehear the case on the merits: Aviva Canada Inc. v. Pastore, 2012 ONCA 887, 300 O.A.C. 355, at para. 9. . RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP
In RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP (Ont CA, 2020) the Court of Appeal considered the manner of errors in an order that may be addressed by R59.06:The r. 59.06 motion
[40] The appellants argue that the trial judge erred in dismissing their motion under r. 59.06 by applying the wrong test. This was not a case in which they alleged that the judge erred in his reasons, nor did the appellants seek to vary matters that had been decided. The motion concerned four matters that had not been adjudicated upon. In these circumstances, the appellants say, the trial judge had a broad discretion to grant relief on their motion if it was in the interests of justice to do so.
[41] The trial judge did not apply the wrong test. He recognized that r. 59.06 was to be used for the purpose of correcting errors in a judgment, not in the reasons, as this court explained in Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942. In that case, the court explained that there is no jurisdictional impediment to a court reconsidering a decision if an order has not been taken out and entered, but a party seeking to re-open an appeal faces a high hurdle. As the court noted at para. 7, citing Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, leave to appeal refused, [2015] S.C.C.A. No. 330, a trial judge may re-open an appeal prior to the entering of an order “sparingly and only where it is clearly in the interests of justice” to do so.
[42] In this case, given that a judgment had not been taken out and entered, it was open to the trial judge to entertain the appellants’ motion. He proceeded to consider and reject all the grounds raised by the appellants. I will address the alleged errors in the order raised by the appellants. Paulpillai Estate v. Yusuf
In Paulpillai Estate v. Yusuf (Ont CA, 2021) the Court of Appeal clarified that the R59 authority to 'amend, set aside or vary' orders focusses on formal orders when made, not on decisions:[4] The respondents’ reliance on r. 59.06 is misplaced. The grounds it sets out for re-opening an appeal concern orders, whereas the respondents allege errors in the court’s reasons: Meridian Credit Union v. Baig, 2016 ONCA 942, at para. 6. No order has yet been issued and entered with respect to the court’s decision of October 19, 2020.
[5] Finality in litigation is important. While the court can reconsider its decision when no order has been taken out and entered, it will only do so sparingly and where the interests of justice would require it to withdraw its reasons and rehear the case on its merits: Meridian Credit, at para.7. . R. v. Smithen-Davis
In R. v. Smithen-Davis (Ont CA, 2020) the Court of Appeal considers, in a criminal case, when an appeal may be re-opened. The consideration includes when the court is functus officio:The Governing Principles
[26] The parties occupy common ground that this Court has jurisdiction to permit re-opening of an appeal. They disagree about the scope of that jurisdiction; whether it extends to appeals heard and decided on the merits, and if it does, when that jurisdiction ends. Upon delivery of reasons for the decision? Or only when the formal order recording the disposition is entered?
[27] As a matter of first principle, appellate rights, procedures on appeal, and jurisdiction of appellate courts are wholly creatures of statute. From this principle, it follows that, if a power to re-open appeals exists, it must be anchored in some statutory authority, whether expressly stated or arising by necessary implication: Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, at pp. 69-70; R. v. H. (E.F.); R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256.
[28] The statutory rights of appeal for which the Criminal Code makes provision furnish no authority for re-opening appeals, whether heard and decided on the merits or otherwise. Nor does the rule-making authority of ss. 482 and 482.1. The power to make rules is limited to matters which are already within the jurisdiction of the court. Likewise, the referential incorporation by s. 683(3) of the powers exercisable in civil appeals is of no service on this issue. Nor is it advanced as such by either party in this case: H. (E.F.); Rhingo, at pp. 97-100.
[29] A potential source of authority to permit re-opening inhabits the inherent or ancillary jurisdiction of a court, including a statutory court like the court of appeal, to control its own process. This jurisdiction includes the authority to regulate the manner in which the parties exercise any statutory right of appeal: H. (E.F.); Rhingo, at pp. 100-101.
[30] The jurisdiction of an appellate court to re-open an appeal has been authoritatively recognized. The scope of that authority, however, less clearly marked out.
[31] In H. (E.F.); Rhingo, two unrelated parties sought to have their appeals re-opened. Each appeal had been argued on the merits and decided. Formal orders dismissing each appeal had been issued. This court concluded that the jurisdiction to re-open an appeal was limited to appeals that had not been heard on their merits. The jurisdiction did not extend to permit re-opening of appeals that had been heard and decided on the merits: H. (E.F.); Rhingo, at pp. 106-107.
[32] In a footnote, the court in H. (E.F.); Rhingo, appears to accept that a court is not functus officio when it delivers its reasons for decision, but only when the order recording the court’s disposition has been entered: H. (E.F.); Rhingo, at footnote 10, p. 106. In other words, for the purpose of determining whether a court is functus officio, there is a difference between giving reasons for decision and entering the formal order reflecting the disposition of the appeal: R. v. Hummel, 2003 YKCA 4, 175 CCC (3d) 1 at para. 11, leave to appeal refused, [2002] S.C.C.A. No. 434.
[33] In courts that have considered the issue, the prevailing view is that the defining event for the purposes of the application of the doctrine of functus officio is the entry of the order disposing of the appeal not the giving or release of reasons for the decision: Hummel, at para. 11; H. (E.F.); Rhingo, footnote 10 at p. 106; R. v. Chudley, 2015 BCCA 391, 125 W.C.B. (2d) 129 at para. 9; R. v. Villeda, 2010 ABCA 410, 44 Alta. L.R. (5th) 300 at para. 7; R. v. Moura (2003), 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at para. 20.
[34] Where an appellate court hears an appeal on its merits and issues reasons for its dismissal of that appeal, but does not issue a formal order recording that dismissal, the court is not functus officio. Thus, functus officio does not erect a bar to re-opening. The authorities support the existence of a discretion in those circumstances to permit re-opening: Hummel, at paras. 3, 14-15; Chudley, at para. 7; R. v. Chow, 2003 BCCA 248, 57 W.C.B. (2d) 297 at para. 10; R. v. Blaker (1983), 1983 CanLII 308 (BC CA), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also, R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29.
[35] The circumstances in which a court may exercise its authority to permit re-opening are closely circumscribed. The core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening. This requires a searching evaluation of the importance of the issues the applicant seeks to raise on the re-opening: Chow, at para. 11; Villeda, at para. 11.
[36] Among the relevant factors a court might consider in deciding whether to permit re-opening of an appeal previously argued and decided on the merits are:
i. the principle of finality;
ii. the interests of justice including finality and the risk of a miscarriage of justice;
iii. whether the applicant has established a clear and compelling case to justify a re-opening;
iv. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and
v. whether the error alleged concerns a significant aspect of the case.
See, Hummel, at para. 24; Chow, at paras. 9, 11.
[37] What emerges from the authorities is a rule prohibiting re-opening of an appeal when the court is functus officio. The court is functus officio when:
i. the appeal has been argued and decided on the merits;
ii. the court has issued reasons for its decision; and
iii. a formal order has been entered or issued recording the disposition of the appeal.
This principle is consistent with the Ontario cases of H. (E.F.); Rhingo; Moura; R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.); and R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58.
[38] What remains less clear in this province is whether, absent a formal order recording the disposition of an appeal, the court has jurisdiction to permit re-opening where the appeal has been argued and decided on the merits.
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