Criminal - Re-Opening. 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. R. v. A.I.B.
 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.
 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.
 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.
 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.
 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),  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.
 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.
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
 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.; The trial judge denied the appellant’s application.
. 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.
 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),  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.