R v Griffith: What Happens When a Judge Changes His/Her Mind?

In R v Griffith, 2013 ONCA 510, a decision released by the Ontario Court of Appeal on August 9, 2013, the court was faced with an unusual series of events. The trial judge in this case, having considered the available evidence and submissions, found the defendant guilty of firearm-related offences. Upon careful consideration, however, the trial judge overturned his decision three months later and entered an acquittal at what was intended to be a sentencing hearing. The appeal of that decision centred on the question of whether a trial judge has jurisdiction to reopen a case in this manner and, if so, whether this jurisdiction was appropriately exercised.

Factual Background

In February 2011, the police investigated a group of men arguing outside of a building in Toronto. As the police approached the scene, the three men began walking away. At this point, the police observed the respondent to this appeal, Lamar Griffith, holding his arm in a way that made it appear that he was armed. When the group of men were asked to stop, Mr. Griffith first walked and then ran away from the police; after a brief pursuit, the respondent was apprehended and charged with resisting arrest. During the pursuit, the police noticed the respondent fumbling with the waistband of his pants prior to jumping a fence.

Following the respondent’s arrest, the police searched the area and found a loaded handgun near the fence that Mr. Griffith had jumped over. While none of the officers had seen the respondent throw the gun away, they suspected that whoever had done so had done so recently, as the gun was still dry despite recent precipitation in the area. Fingerprints, which did not match the respondent’s, were found on the gun.

The respondent argued that he, at least initially, did not hear the police telling him to stop; when he did hear them, he decided that it was not in his best interest to comply with their request, as he feared being “beat up” by the police. Griffith denied any knowledge of the gun, stating that he had never touched it and had not thrown it away.


The trial judge, on December 21, 2011, acquitted the respondent of the resisting arrest charge but found him guilty of the firearm-related charges. In short, the judge found that the manner in which the respondent moved was consistent with a person carrying a concealed weapon, and determined that the fingerprints on the gun merely demonstrated that someone other than the respondent had handled the gun, not that the respondent had not also handled the gun.

Not Guilty

Following the trial judge’s finding of guilt, the case was adjourned for three months so that the parties could prepare a pre-sentence report. When the parties returned for sentencing on March 12, 2012, the trial judge spoke about how the decision he had rendered had troubled him. While he did not change anything he said about the evidence or his analysis of it, he determined that he had not given the proper amount of consideration to the frailties in the prosecution’s case:

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 (Ibid at para 9).

The trial judge was satisfied that he had jurisdiction to make such a ruling, despite not finding any law on this issue. Crown counsel was not permitted to state his opinion on this decision, as the trial judge said that he already had his opinion on record from the original trial.

Does a Trial Judge have Jurisdiction to Vacate the Adjudication of Guilt?

In addressing this issue, the Ontario Court of Appeal referred to their decision in R v Lessard (1976), 30 CCC (2d) 70. In that case, the court found that a judge who has made a finding of guilt can vacate the adjudication of guilt at any point prior to imposing a sentence. The power to vacate, however, is only to be exercised in exceptional circumstances and where its exercise is clearly called for.

In R v Griffith, the Crown appellant argued that there are many reasons why this discretion must be constructed narrowly. For example, vacating the adjudication of guilt is not compatible with our desire for finality in criminal proceedings. Moreover, there are already safeguards in place (the appeals process) to avoid wrongful convictions. Thus, the Crown argued that the court’s discretion should only be exercised if a party applies for reopening based on fresh evidence or a new argument that could not have been prepared prior to conviction, as there is no statutory mandate to reopen a case.

While the court agreed that the power to reopen should only be exercised in exceptional circumstances, they did not agree with the Crown’s submission that such a power can only be exercised upon application by one of the parties: “the absence of a statutory basis does not deprive a trial judge of the power to reopen the case” (2013 ONCA 510 at para 17). Thus, a trial judge does in fact have the jurisdiction to vacate the adjudication of guilt.

Setting the Parameters

The Crown advocated for a stricter test for reopening a conviction than the “exceptional circumstances” test set out in Lessard. The court rejected this proposal, stating that Lessard has stood the test of time. While the Crown voiced their concern that allowing the trial judge to have unfettered discretion in reopening a conviction would lead to a floodgate of convictions being overturned by trial judges, the court stated that this argument is not borne out in practice, as they were not alerted to any other cases where a trial judge reversed a final adjudication on his or her own motion. In short, 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” (Ibid at para 23) and recognizes our strong concern for finality.

Application to this Case

The court first recognized that, in a judge-alone trial, a judge is not required to sentence someone who he believes has not been proven guilty beyond a reasonable doubt; such a requirement would bring the administration of justice into disrepute. This concern was articulated in R v Fauteux (1997), 54 Alta LR (3d) 43 at para 37: “… 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.”

With this in mind, the court found that the circumstances of this case satisfied the “exceptional circumstances” standard and, having formed second thoughts about the respondent’s guilt, the trial judge had a duty not to convict Mr. Griffith. However, the manner in which the trial judge exercised his discretion was problematic, and he erred in law by entering an acquittal.

First, it was an error in law for the trial judge to enter an acquittal without providing the parties, as a matter of “natural justice” (2013 ONCA 510 at para 33), an opportunity to make submissions. Vacating his finding of guilt and entering an acquittal raised questions about his objectivity and the legitimacy of his decision-making; these are highly contentious issues that should have been addressed through submissions by the parties to this case, particularly the Crown.

Second, the trial judge erred in law by entering an acquittal. While courts have not identified the preferred remedy in applications by the accused to reopen a case following a conviction by a trial judge, in the particular circumstances of this case it was wrong for the judge to enter an acquittal. The fact that the trial judge had already made a decision to set aside the finding of guilt prior to the sentencing hearing, and could thus not receive and consider submissions, “tainted the fairness of the process” and “undermined the legitimacy of the remedy” (Ibid at para 38).


While a mistrial should only be granted as a last resort, the court found that this was the only reasonable outcome in this case, given that the earlier convictions could not be maintained and, having already made a decision to set aside the verdict, the trial judge could not consider the Crown’s submissions. Therefore, the appeal was allowed by a unanimous court and a new trial was ordered.

This case provides important guidance for trial judges on the issue of vacating the adjudication of guilt. First, it affirms the “exceptional circumstances” test set out in Lassard. Second, while acquittals may be an appropriate remedy for trial judges to utilize in situations where a case is reopened following a conviction, it is imperative – for reasons of natural justice, legitimacy, and fairness – for the trial judge to be able to objectively receive and consider submissions on the issue at bar. Otherwise, a mistrial may be the most appropriate remedy.

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