Her Majesty the Queen v. Griffith, 2013 ONCA 510

Her Majesty the Queen v. Griffith

[Indexed as: R. v. Griffith]

Ontario Reports

Court of Appeal for Ontario,

Rosenberg, Juriansz and Epstein JJ.A.

August 9, 2013

116 O.R. (3d) 561 | 2013 ONCA 510

Case Summary

Criminal law — Trial — Vacating conviction — Trial judge sitting alone having jurisdiction to vacate conviction prior to sentencing — Exercise of that jurisdiction limited to exceptional circumstances — "Exceptional circumstances" test met where trial judge formed and voiced second thoughts about accused's guilt prior to sentencing — Trial judge should have given parties opportunity to make submissions before expressing opinion accused not guilty and entering acquittal — Given that trial judge had stated his opinion that accused was not guilty he should have declared a mistrial as appearance of administration of justice and fairness not served by asking parties for submissions on an issue judge had already decided.

The trial judge, sitting without a jury, found the accused guilty of gun-related offences, and the matter was adjourned for sentencing. On the return date, several months later, he stated that he had reconsidered the findings of guilt and no longer thought that the Crown had proved beyond a reasonable doubt that the gun was in the accused's possession. Without hearing submissions from the Crown, the trial judge reopened the matter of guilt and entered acquittals. The Crown appealed.

Held, the appeal should be allowed.

A judge who has presided over a judge-alone trial, and made a finding of guilt, has jurisdiction to vacate the conviction at any time before a sentence is imposed. That jurisdiction should only be exercised in exceptional circumstances but is not limited to situations in which there has been an application by one of the parties.

The "exceptional circumstances" test was met in this case. 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. Having formed and voiced second thoughts about the accused's guilt, the trial judge had a duty not to convict. However, it was an error of law to enter an acquittal without giving 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. The trial judge also erred in law in entering an acquittal. As the trial judge stated that he thought the accused was not guilty, he could not realistically seek submissions from the parties on the very issue that he had already decided. The appropriate remedy in the circumstances of this case was a mistrial.

R. v. Lessard, 1976 1417 (ON CA), [1976] O.J. No. 74, 30 C.C.C. (2d) 70, 33 C.R.N.S. 16 (C.A.), apld

R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90, 156 N.R. 321, J.E. 93-1579, 12 Alta. L.R. (3d) 1, 141 A.R. 353, 83 C.C.C. (3d) 462, 23 C.R. (4th) 357, 20 W.C.B. (2d) 427; R. v. Fauteux, 1997 14859 (AB KB), [1997] A.J. No. 914, [1997] 9 W.W.R. 399, 54 Alta. L.R. (3d) 43, 208 A.R. 13, 36 W.C.B. (2d) 62 (Q.B.); R. v. Urbanovich, 1985 3479 (MB CA), [1985] M.J. No. 119, 31 Man. R. (2d) 268, 19 C.C.C. (3d) 43 (C.A.), consd [page562]

Other cases referred to

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; R. v. Arabia, [2008] O.J. No. 2960, 2008 ONCA 565, 240 O.A.C. 104, 235 C.C.C. (3d) 354, 79 W.C.B. (2d) 323; R. v. Bertucci, 1984 2297 (SK CA), [1984] S.J. No. 117, [1984] 2 W.W.R. 459, 31 Sask. R. 1, 11 C.C.C. (3d) 83, 11 W.C.B. 363 (C.A.); R. v. Drysdale, [2011] O.J. No. 4232, 2011 ONSC 5451, 275 C.C.C. (3d) 219, 98 W.C.B. (2d) 74 (S.C.J.); R. v. Hargraves, 1982 3746 (ON CA), [1982] O.J. No. 120, 69 C.C.C. (2d) 380, 29 C.R. (3d) 391 (C.A.); R. v. Henderson, 2004 33343 (ON CA), [2004] O.J. No. 4157, 191 O.A.C. 201, 189 C.C.C. (3d) 447, 26 C.R. (6th) 341, 123 C.R.R. (2d) 297, [2004] G.S.T.C. 141, 64 W.C.B. (2d) 89 (C.A.); R. v. Kippax, [2011] O.J. No. 5494, 2011 ONCA 766, 24 M.V.R. (6th) 1, 286 O.A.C. 144, 99 W.C.B. (2d) 92; R. v. Kowall, 1996 411 (ON CA), [1996] O.J. No. 2715, 92 O.A.C. 82, 108 C.C.C. (3d) 481, 50 C.R. (4th) 271, 31 W.C.B. (2d) 533 (C.A.); R. v. Malicia (2006), 2006 31804 (ON CA), 82 O.R. (3d) 772, [2006] O.J. No. 3676, 270 D.L.R. (4th) 280, 216 O.A.C. 252, 211 C.C.C. (3d) 449, 36 M.V.R. (5th) 1, 70 W.C.B. (2d) 844 (C.A.); R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172, [1949] S.C.J. No. 2, [1949] 1 D.L.R. 609, 93 C.C.C. 251, 7 C.R. 88; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; R. v. Spataro, 1972 25 (SCC), [1974] S.C.R. 253, [1972] S.C.J. No. 119, 26 D.L.R. (3d) 625, 7 C.C.C. (2d) 1; R. v. Stucky, [2009] O.J. No. 600, 2009 ONCA 151, 71 C.P.R. (4th) 402, 256 O.A.C. 4, 240 C.C.C. (3d) 141, 303 D.L.R. (4th) 1, 65 C.R. (6th) 46, 56 B.L.R. (4th) 1; R. v. Toutissani, [2007] O.J. No. 4364, 2007 ONCA 773; S. (An Infant) v. Recorder of Manchester, [1970] 2 W.L.R. 21, [1971] A.C. 481, [1969] 3 All E.R. 1230 (H.L.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 675 [as am.], 682 [as am.]

APPEAL by the Crown from the acquittal entered on March 12, 2012 by Aston J. of the Superior Court of Justice, sitting without a jury.

David Lepofsky, for appellant.

Paul Calarco, for respondent.

The judgment of the court was delivered by

1ROSENBERG J.A.: — 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 day's 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 judge's jurisdiction to reopen the case. Crown counsel submits that even if the trial judge had jurisdiction, the procedure he [page563] 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.

2For 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

3Just 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 respondent's 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.

4Twenty-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 gun's 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.

5The 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 respondent's booking at the [page564] 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

6The 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[ing] arrest charge but finding him guilty of the firearm-related charges. He rejected the respondent's 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.

7The parties agreed that there should be a pre-sentence report and the case was adjourned for about three months for that purpose.

The second decision: March 12, 2012

8When 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.

9He 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 [page565] 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 21st, 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 Crown's 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 I'm sure the gun was in the possession of Mr. Griffith. I must find him not guilty and I'm going to make that change in the verdict.

10At 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 can't decide, or it's 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

11This 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? [page566]

C. Analysis

(1) Jurisdiction to vacate the adjudication of guilt

12On the basis of this court's decision in R. v. Lessard, 1976 1417 (ON CA), [1976] O.J. No. 74, 30 C.C.C. (2d) 70 (C.A.), 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 C.C.C., 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".

13Given 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 C.C.C. 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 has 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 (1949), 1949 76 (ON CA), 93 C.C.C. 267, [1949] O.R. 315, 8 C.R. 66; Darville v. The Queen (1956), 1956 463 (SCC), 116 C.C.C. 113, 25 C.R. 1.

14In 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. [page567]

15Thus, the Crown's primary position on this appeal is that the judge has no power to reopen a conviction absent a party's 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.

16I 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 C.C.C. of Lessard, Martin J.A. referred to S. (An Infant) v. Recorder of Manchester, [1970] 2 W.L.R. 21, [1971] A.C. 481 (H.L.) 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".

17To 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 R. v. Bertucci, 1984 2297 (SK CA), [1984] S.J. No. 117, 11 C.C.C. (3d) 83 (C.A.), at p. 88 C.C.C.

18It follows that I would not give effect to the Crown's 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

19Crown counsel's 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 [page568] lurking doubt as to the correctness of the conviction, an enhanced duty to give reasons and only one remedy, namely, a mistrial.

20I 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 judge's discretion. The Crown's 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.

21First, 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 R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 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 411 (ON CA), [1996] O.J. No. 2715, 108 C.C.C. (3d) 481 (C.A.), at p. 493 C.C.C.; and R. v. Kippax, [2011] O.J. No. 5494, 2011 ONCA 766, 286 O.A.C. 144, at paras. 62-63.

22Second, 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.

23Third, 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.

24In 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. [page569] 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 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 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 158 (SCC), [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.

25Another consideration is the fundamental aspect of the adversary system that limits the trial judge's 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] O.J. No. 600, 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.

26In 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 (2006), 2006 31804 (ON CA), 82 O.R. (3d) 772, [2006] O.J. No. 3676 (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.

27Thus, in my view, because the Lessard test is rigorous enough to accommodate these considerations, neither the strict [page570] 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

28I 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. Urbanovich, 1985 3479 (MB CA), [1985] M.J. No. 119, 19 C.C.C. (3d) 43 (C.A.), at p. 75 C.C.C.:

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), 1976 1417 (ON CA), 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)

29The issues in Urbanovich 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, 2004 33343 (ON CA), [2004] O.J. No. 4157, 189 C.C.C. (3d) 447 (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.

30In R. v. Fauteux, 1997 14859 (AB KB), [1997] A.J. No. 914, 54 Alta. L.R. (3d) 43 (Q.B.), at paras. 36-37, Fruman J. also made passing comments on the reality that judges may have second thoughts, and referred to R. v. Spataro, 1972 25 (SCC), [1974] S.C.R. 253, [1972] S.C.J. No. 119, where [page571] 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 [at paras. 36-37]:

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 1950 2 (SCC), [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 1969 1 (SCC), [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 17 (SCC), [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.

31The circumstances of this case satisfy the "exceptional circumstances" standard set out in Lessard. Having formed second thoughts about the respondent's 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 judge's admission of his misgivings.

32I 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

33In 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.

34The comments of the Supreme Court of Canada in R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, [1993] S.C.J. No. 90 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 judge's reports under s. 682 of the Criminal Code, and observed that because they allow the trial judge to give a subjective view [page572] of what transpired to the appeal court, they risk encouraging a "situation fraught with the possibilities of unfairness".

35Cory 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 S.C.R.:

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)

36In the case at bar, the circumstances of the trial judge's 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

37I 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] O.J. No. 2960, 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.

38I 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.

39Admittedly, a mistrial should only be granted as a last resort where no other remedy will adequately redress the harm [page573] occasioned: R. v. Toutissani, [2007] O.J. No. 4364, 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.

40The approach taken by Trotter J. in R. v. Drysdale, [2011] O.J. No. 4232, 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 accused's 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 accused's credibility on a different basis would be disingenuous. In the trial judge's 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.

41Similarly, 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 Crown's 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.

42While it is not a perfect analogy, what occurred here is also similar to the issue addressed by this court in R. v. Hargraves, 1982 3746 (ON CA), [1982] O.J. No. 120, 69 C.C.C. (2d) 380 (C.A.), 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 C.C.C., to the decision of the [page574] Supreme Court of Canada in R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172, [1949] S.C.J. No. 2 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.

43In view of the trial judge's 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

44Accordingly, I would allow the appeal, set aside the acquittals and order a new trial on the weapons charges. The respondent's acquittal on the resisting arrest charge is unaffected by the errors.