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Criminal - Re-Opening

. R. v. Doering

In R. v. Doering (Ont CA, 2024) the Ontario Court of Appeal dismisses an apparent attempted 're-opening' of an appeal in a criminal matter:
[1] The appellant appeals his conviction for failing to provide the necessaries of life, contrary to s. 215 of the Criminal Code, R.S.C. 1985, c. C-46. As explained below, this is the appellant’s second appeal from the same decision of the trial judge who found him guilty of this offence. The appellant attempts to raise a new ground that was not raised on his first appeal. The appeal was dismissed from the bench with reasons to follow. These are our reasons.

....

[9] The case eventually returned to the trial judge for sentencing, in accordance with this court’s Reasons for Decision and order. But the appellant had other ideas. He applied to re-open the case to present further submissions on why he should be acquitted on the failing to provide the necessaries count. He claimed that he was entitled to do so because, in remitting the case back to the Superior Court for sentencing, this court had only set aside the conditional stay that was imposed in accordance with Kienapple. It did not enter a conviction under s.686(3)(b) of the Criminal Code. He submitted that, in these circumstances, the trial judge retained the discretion not to enter a conviction on this count, and a corresponding discretion to re-open the case.

[10] The trial judge determined that she had no jurisdiction to re-open the case: at paras. 20-27. She entered a conviction on the failing to provide the necessaries count and sentenced the appellant to an 18-month conditional sentence order, in addition to other ancillary orders.

....

[19] Nonetheless, this appeal must be dismissed. This court has already decided this appeal fully on its merits. It affirmed the trial judge’s finding of guilt on the failing to provide the necessaries count in unequivocal language, characterizing her reasons as “unassailable.” After determining the parties’ preferred choice of forum for sentencing purposes only, the court issued its final order. This step having been taken, any attempt by the appellant to re-open his appeal would have failed, because this court was functus officio in the circumstances: R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at para. 33.

[20] In an attempt to circumvent this jurisdictional barrier, the appellant tried to re-open his case before the trial judge. The application to re-open, and this appeal, are impermissible collateral attacks on this court’s order affirming the trial judge’s findings of guilt on the failing to provide the necessaries count, and this court’s order that the appellant be sentenced for this offence: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 21.

[21] The appellant essentially asks this panel to sit in review of the panel that heard the original appeal. We decline to do so. A challenge to the appellant’s guilt on the failing to provide the necessaries count is res judicata.

[22] As the trial judge said in her reasons, the obvious route to challenge the trial judge’s findings on the failing to provide the necessaries count, and this court’s affirmation of those findings, was by way of an application for leave to appeal to the Supreme Court of Canada: R. v. H. (E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), leave to appeal refused, 107 O.A.C. 400 (note) (S.C.C.). The appellant took the first step towards that goal by sharing a draft application for leave to appeal, one that raised similar arguments that were newly advanced before the trial judge. However, he changed his mind. He explained to the trial judge that it would have been difficult to obtain leave to appeal in the circumstances. While that may well be true, it does not create any greater jurisdiction in this court to hear his appeal – again.

[23] As Charron J.A. (as she then was) said in H. (E.), at p. 214: “The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.” See also R. v. Scott, 2023 ONCA 820, 432 C.C.C. (3d) 384, at para. 31.

[24] The principle of finality must prevail in the circumstances. As far as the Ontario courts are concerned, any issue about the appellant’s guilt, conviction, or sentence on the charge of failing to provide the necessaries of life to Debra Chrisjohn is at an end.
. R. v. Scott

In R. v. Scott (Ont CA, 2023) the Court of Appeal extensively considered an application to re-open an appeal, here in a criminal context:
[2] An application to reopen an appeal raises two questions: whether this court has jurisdiction to reopen, and if it does, whether the jurisdiction should be exercised in the interests of justice.

[3] When an appeal has been dismissed and a formal order reflecting that disposition has been issued, the jurisdiction to reopen is narrow and exceptional. It has been described as being limited to cases that were not “heard on the merits” or that were not “heard and decided on the merits”. The issue raised in this case is whether this narrow and exceptional jurisdiction to reopen extends to an appeal that was heard on the merits but the panel deciding it allegedly failed to consider one of the arguments that was raised because it thought the argument had not been raised. The applicant argues that in such a situation the case has not been “decided on the merits”.

[4] For the reasons that follow, I conclude there is no jurisdiction to reopen an appeal in these circumstances. The phrases “heard on the merits” and “heard and decided on the merits” describe the same category of case – one in which the panel heard argument on the merits and decided the case based on its appreciation and assessment of the merits, as opposed to on a procedural or administrative ground unconnected to the merits. The correctness of the panel’s appreciation and assessment of the merits is irrelevant to the existence of jurisdiction to reopen.

[5] The applicant’s appeal was decided after it was argued on its merits. The panel dismissed the appeal based on its appreciation and assessment of the merits. A formal order was issued.[1] The correctness of the panel’s decision to dismiss the appeal, including the correctness of its appreciation of the arguments that were made, could thereafter be challenged only in the Supreme Court of Canada, not before this court. The applicant pursued an application for leave to appeal to the Supreme Court, unsuccessfully. Although that Court could have granted leave and remanded the matter back to this court, it did not.

[6] I would therefore dismiss the application to reopen for lack of jurisdiction. It is unnecessary to decide whether, if there were jurisdiction to reopen, it should be exercised, and nothing in these reasons should be taken to suggest that this would be an appropriate case to do so.

....

[11] The applicant sought leave to appeal to the Supreme Court of Canada, arguing that this court had denied him procedural fairness by failing to consider whether the verdict was reasonable. As part of the request for leave to appeal, the applicant made a request under s. 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to remand the case to this court for a new hearing.

[12] On January 12, 2023, the application for leave to appeal was dismissed by the Supreme Court: R. v. Scott, [2022] S.C.C.A. No. 292.

[13] On May 5, 2023, this application to reopen was launched.

....

[22] Second, whether a formal order has been issued recording the result of the appeal is important to the scope of the jurisdiction to reopen. It is therefore important to underscore that in this case, there is a formal order reflecting the panel’s decision.

[23] Where an appeal has been argued on its merits and a decision has been rendered, but a formal order has not been issued, the court is not functus. It remains seized of the matter and retains a limited power to reconsider and vary its decision until the formal order is issued: at R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29; R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at para. 34. Thus, even after argument on the merits, and reasons for decision addressing the merits, in the absence of a formal order disposing of the appeal the court may permit the appeal to be reopened if it is in the interests of justice to do so. Consideration will be given to the principle of finality, the risk of a miscarriage of justice, the cogency of the case for re-opening, the nature of the error or omission alleged to require re-opening; and the significance of the error to the disposition of the appeal: Smithen-Davis, at paras. 40-41, 45, and 56-7.

[24] The jurisdiction to reopen is much narrower, however, after a formal order has been issued: Smithen-Davis, at paras. 37, 43-44. Only if that narrow test for jurisdiction is met does one consider the “interests of justice”.

[25] Third, at issue in this case is reopening the appeal in the sense of setting aside the merits-based decision and permitting further argument. This is different from a situation where the court is asked to correct a slip or error in the formal order itself so that it accords with the intention of the court as reflected in its reasons. It is not suggested that the formal order in this case fails to reflect the panel’s decision on the appeal.

[26] Against that backdrop I turn to the applicable jurisdictional test.

(2) The Jurisdiction to Reopen After a Formal Order

[27] The source of the power to reopen plays a principal role in explaining its very limited scope. There is no statutory authority to reopen an appeal. “[A]ny jurisdiction in this respect must come within the scope of the appellate court’s inherent or ancillary powers”: R. v. H. (E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.) (“Rhingo”), at para. 30, leave to appeal refused, [1997] S.C.C.A. No. 256 and [1997] S.C.C.A. No. 274.

[28] At issue in Rhingo were two applications to reopen previously dismissed appeals. In one, the applicant had been represented by counsel on the appeal, but the representation was alleged to have been inadequate. In the other, the applicant was alleged to have been seriously prejudiced by having to argue his own appeal. In each case it was argued that the interests of justice, especially the need to prevent what might have been a miscarriage of justice, required the appeal to be reopened. In each case a formal order reflected the dismissal of the appeal.

[29] The applications were each dismissed for lack of jurisdiction.

[30] The court held in Rhingo that where an issued order has disposed of an appeal, the jurisdiction to reopen exists only in cases where the appeal was not heard on its merits: at pp. 219-220. As an example of that situation, the court referred to the dismissal of an appeal due to the non-attendance of counsel for the appellant at the hearing: at p. 215, citing The Queen v. Jacobs, 1970 CanLII 143 (SCC), [1971] S.C.R. 92.[3] The jurisdiction to reopen does not, however, extend to cases that were heard on their merits and finally disposed of by the issuance of an order, which was the case for the two applications at issue: at pp. 214, 220.

[31] Strong reasons of policy and principle drove these conclusions, including Parliament’s legislated choices as to avenues of recourse from court decisions in criminal matters and the public’s interest in finality of criminal proceedings. Charron J.A. (as she then was), speaking for the court, explained, at pp. 214-215:
Once the appeal has been heard on its merits and finally disposed of by the issuance of an order, the statutory right of appeal has been exhausted. Any subsequent reopening of the same proceeding would involve the creation of further substantive or procedural rights, which only Parliament can enact.

There are sound policy reasons for so limiting the power to reopen appeals. An unlimited discretion to reopen appeals that have been heard on their merits is not only unjustifiable as an ancillary power of the court, but would do significant harm to the criminal justice system. Finality is an important goal of the criminal process. Statutory rights of appeal provide a carefully crafted exception to the general rule that trial decisions are final. By providing broad rights of appellate review in criminal matters, Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.

Furthermore, to the extent that an application to reopen an appeal is a challenge to the correctness of a decision made by an earlier panel, as is the case in the Rhingo application, the application to reopen is an attempt to vest the Court of Appeal with a jurisdiction which is reserved to the Supreme Court of Canada. It is not the function of one panel of this court to sit on appeal from a decision of another panel. The power to further review the matter no longer belongs to this court. [Emphasis added.]
[32] In applying Rhingo this court has sometimes used the formulation that jurisdiction to reopen an appeal after a formal order has been issued exists where the appeal “was not decided on its merits”, has “not been heard and decided on the merits”, or was not “argued and decided on the merits”: R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.), at para. 4; R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58, at para. 11; Smithen-Davis, at para. 37. These alternative formulations do not change the limited scope of the jurisdiction laid down by Rhingo.

[33] Under any formulation, jurisdiction to reopen after a formal order has been issued is precluded where there has been a hearing at which merit based arguments were made and a decision that is based on the panel’s appreciation and assessment of the merits of the appeal, as opposed to a basis independent of the merits. For example, an appeal that was heard on the merits but was then dismissed because the appellant abandoned it would not fall into the Rhingo formulation or any of the later formulations of when jurisdiction is precluded.

[34] But none of the formulations extend to establish jurisdiction for the applicant’s case. None suggest that there is jurisdiction to reopen an appeal when there is not a perfect, or correct, concordance between the merit-based arguments made at the hearing of the appeal and the merits-based decision. Nor do they suggest that there will be jurisdiction to reopen where the decision does not reveal a correct appreciation or assessment of the arguments.

[35] There is a limited jurisdiction to reopen after a formal order so that an appeal that was disposed of other than on the merits can be addressed on the merits (assuming it also is in the interests of justice to do so). This limited jurisdiction to reopen does not exist to allow a second, better or more correct look at the merits. As Rhingo makes clear, this court is without jurisdiction to reconsider the correctness of a decision of a panel after a hearing on the merits and the issuance of a formal order: “It is not the function of one panel of this court to sit on appeal from a decision of another panel. The power to further review the matter no longer belongs to this court”: at pp. 214-215. To hold that, after a final order, there is nevertheless a power to reopen an appeal because the original panel was incorrect in its appreciation or assessment of one of the arguments made on the appeal would create a jurisdiction to review for correctness where none exists.

[36] There is a distinction between getting the decision on the merits wrong and not making a decision on the merits at all. The applicant’s position collapses that distinction. This approach would have the effect of usurping the appellate jurisdiction of the Supreme Court.

E. CONCLUSION

[37] A party who believes a panel’s reasons show it misunderstood that an argument was made has remedies. They may, before a formal order is issued, ask for the appeal to be reopened in the interests of justice under the principles in Smithen-Davis. They may apply for leave to appeal to the Supreme Court of Canada.

[38] But the applicant, having not pursued the first avenue of recourse and having unsuccessfully pursued the second cannot, after the formal order has been issued, request reopening of the appeal. At that point, the interests of finality prevail even in the face of an argument that the original panel got it wrong.
. 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. A.I.B.

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

Facts

[20] 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.;

. 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.
[21] The trial judge denied the appellant’s application.

Analysis

[22] 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), [1980] 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.



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