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New trial ordered after judge reverses his decision

|Written By Glenn Kauth

Can judges change their minds after convicting someone but pending sentencing?

That was the question at issue in R. v. Griffith before the Ontario Court of Appeal on Friday. In that case, Superior Court Justice David Aston originally convicted Lamar Griffith on a number of gun-related offences but changed his mind when the matter came back for sentencing and entered an acquittal.

The case dates back to February 2011 when police attempted to stop Griffiths, who was “holding his right arm in a manner that led one of the officers to suspect he was armed,” in an alleyway in Toronto. He ran away, but police eventually caught up with him. They later found a loaded handgun nearby. While a fingerprint didn’t match Griffiths, Aston convicted him anyway after finding that fact didn’t preclude the possibility he had handled the weapon. But upon returning for sentencing in March 2012, Aston had a “nagging feeling,” according to Friday’s appeal court ruling. He rejected the option of declaring a mistrial and instead acquitted Griffiths.

The Crown appealed, arguing the case didn’t meet the threshold for exceptional circumstances established in a previous ruling,

R. v. Lessard

, for reopening a case. It suggested there must be circumstances such as fresh evidence brought forward by one of the parties in order to reopen a case.

But the appeal court found otherwise. “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,” wrote Justice Marc Rosenberg on behalf of the three-judge panel.

He added: “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.”

But while the appeal court upheld Aston’s jurisdiction to reopen the case, it nevertheless found procedural errors in his handling of it. “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,” wrote Rosenberg.

“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.”

But while emphasizing the need to seek submissions, the appeal court suggested Aston should have gone even further in this case and declared a mistrial. “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.”

The Crown, then, succeeded in its appeal. As a result, the appeal court set aside the acquittals and ordered a new trial.


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