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Review - Re-Opening - Criminal
MORE CASES
Part 2
. R. v. R.G.
In R. v. R.G. (Ont CA, 2023) the Court of Appeal considers the law of 're-opening' a trial, here in a criminal trial context (but the law is largely applicable to both civil and criminal) and involving fresh evidence issues:[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.
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The Law on Reopening
[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 1976 CanLII 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.
[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.
[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
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The Application of Due Diligence
[104] Due diligence retains an essential purpose at reopening applications. Certainty and finality demand that everyone put their best foot forward at trial. Without a robust application of the due diligence criterion, trials would become trial runs, institutional concerns would abound, and victims would be endlessly revictimized. The integrity of the administration of justice simply cannot invite the relaxation of expectations that all, including defence counsel, advance their cases – their whole cases – the first time around.
[105] Therefore, as in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence. . R. v. Benhsaien
In R. v. Benhsaien (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown application to quash a defendant's motion to re-open a criminal appeal:[10] On February 2, 2024, Mr. Benhsaien filed a motion to re-open his appeal on the basis that he did not have proper time to prepare for the appeal, and that the court failed to properly consider his grounds of appeal. This court has jurisdiction to consider a motion to re-open an appeal where a final order on the appeal has not yet been issued: R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 34-37.[1]
[11] In order to succeed on his motion, Mr. Benhsaien would have to establish that it is in the “interests of justice” to re-open the appeal. The following factors are relevant: (i) the principle of finality; (ii) the risk of a miscarriage of justice; (iii) the cogency of the case for re-opening; (iv) the nature of the error or omission alleged to require re-opening; and (v) the significance of the error to the disposition of the appeal: Smithen-Davis, at para. 36.
[12] In order to succeed on the application to quash, the Crown must establish that Mr. Benhsaien’s motion to re-open the appeal has no reasonable prospect of success: Smithen-Davis, at paras. 63, 68.
[13] The Crown contends that it has met its burden. The Crown submits that Mr. Benhsaien has not pointed to any error in this court’s decision, let alone an error that could impact the disposition of the appeal. Rather, he is seeking to relitigate issues that were properly considered and dismissed by this court. He had ample time to prepare for his appeal, and there is no risk of a miscarriage of justice should his motion to re-open be quashed.
[14] Mr. Benhsaien asserts that he is not seeking to reargue his appeal. He provided detailed written and oral submissions in response to the Crown’s application, asserting various errors on the part of the panel hearing the appeal, and unfairness in how the appeal was addressed.
[15] Essentially, Mr. Benhsaien’s position is that, at the hearing of the appeal he was deprived of the opportunity to address concerns about the video of the fifth assault, which was not in the record on appeal. He contends that the video is blurry and may not support the testimony identifying him as the assailant. He asserts that, as a result of the decision dismissing his application for the appointment of counsel on the appeal, where Trotter J.A. said “this appeal is ready to be argued on the existing record”, he was required to accept the record as it was, and therefore he could not make the argument he was intending to make, that the video of the assault does not support his identity as the assailant. He contends that, in the absence of this video evidence, the rest of the evidence relied on by the Crown was circumstantial evidence that was open to interpretations inconsistent with his guilt. For example, he suggests that someone could have placed his DNA on the hammer that was found at the scene of the fifth assault and on the sweater that was grabbed from the assailant at the fourth assault, and that the similarities in appearance between the video in which he was seen shortly before the fifth assault and the identification evidence could be explained by someone dressing in clothing similar to what he was wearing that day in order to commit the assault.
[16] We agree with the Crown that there is no prospect that any of these arguments would succeed on a motion to re-open Mr. Benhsaien’s appeal. Even if Mr. Benhsaien mistakenly believed that he could not make these arguments at the hearing of the appeal because the video of the assault was not itself in evidence, we agree with the Crown that the arguments are fanciful and that, in any event, the rest of the evidence was overwhelming such that Mr. Benhsaien’s guilt was the only reasonable conclusion.
[17] Finally, the record does not support Mr. Benhsaien’s assertion that he did not have proper time to prepare for the appeal. Although the appeal had been marked peremptory to Mr. Benhsaien, and had been adjourned repeatedly, he sought and was refused an adjournment of the December date. Paciocco J.A.’s endorsement of November 28, 2023 confirmed that Mr. Benhsaien had a “long history of making adjournment requests based on challenges he [had] experienced in completing his written arguments”, that “extensive assistance [had] been provided to accommodate his needs”, that “[w]ritten arguments [were] not technically required, as [the] appeal [would] be argued orally”, that Mr. Benhsaien was “well-versed in what his submissions [would] be”, and that accordingly it was not in the interests of justice to delay the hearing of the appeal any longer. . R. v. Hart
In R. v. Hart (Ont CA, 2024) the Ontario Court of Appeal considers a criminal re-opening of an already dismissed "application for leave to appeal", here in the context of a criminal summary conviction appeal and involving a 'fresh law' appeal request:[3] It is unclear to us that we have jurisdiction to re-open an application for leave to appeal that has been dismissed, with an order reflecting the dismissal having been entered and issued. Nevertheless, even assuming, without deciding, that we do have such jurisdiction, we are not prepared to exercise it in the circumstances here. As noted above, appeals to this court from an order of a Summary Conviction Appeal Court are permitted only on questions of law alone. Since the appellant did not raise the issue of ineffective assistance of counsel in her Summary Conviction Appeal, there is no error of law by that court from which to appeal. The Summary Conviction Appeal Court cannot be faulted for not addressing an argument that was not raised before it.
[4] Moreover, appellants are only rarely permitted to raise new grounds of appeal in this court that were not advanced in the proceedings below. As this court noted in R. v. E.F.H.; R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at p. 101, “[t]he 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”. The finality concerns the court discussed in that case are heightened when, as here, the appellant seeks to reopen an appeal that was dismissed years earlier. . R. v. M.G.
In R. v. M.G. (Ont CA, 2024) the Ontario Court of Appeal considered grounds for re-opening a criminal trial, which it identified as the 'fresh evidence' criteria from Palmer:[15] The trial judge correctly observed that on the application to reopen based upon new evidence, she was required to apply the test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. The trial judge was familiar with all the evidence that had been adduced during the trial, including the complainant’s recantation and her evidence that she was suffering from mental stress when she originally reported to police and during the preliminary inquiry. In the circumstances, it was open to the trial judge to conclude that the complainant’s email asserting the sexual assault allegations were not true because she was hallucinating offered no new information. It was simply a reiteration of the complainant’s evidence at trial, evidence which the trial judge found attempted to minimize the appellant’s involvement in the offences. We see no error in the trial judge’s ruling. Accordingly, to the extent that the appellant wishes to procure further medical records or other evidence demonstrating the extent of the complainant’s psychological issues, in our view, appeal counsel has failed to establish that this evidence would meet the test of admissibility as outlined in Palmer. . 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.
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[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.
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[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.
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[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.
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[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.
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