DATE: 20051130

DOCKET: C43367

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DOUGLAS EDWARD DENNIS (Appellant)

BEFORE:

SHARPE, BLAIR and MACFARLAND J.J.A

COUNSEL:

Joseph DiLuca, Duty counsel

Riun Shandler for the respondent

HEARD:

June 22, 2005

On appeal from the judgment of Justice Donald Wallace of the Ontario Court of Justice November 23, 2004.

E N D O R S E M E N T

[1] Mr. Dennis is a seventy-year old bank robber and career criminal. In June 2004, he pleaded guilty to the offence of armed robbery. In addition to his lengthy record for crimes of dishonesty, gambling-oriented offences and breach of release conditions, this was his fourth conviction for robbery. He was sentenced to life imprisonment by Justice D.J. Wallace of the Ontario Court of Justice.

[2] On September 6, 2005, we released a decision allowing Mr. Dennis’ sentence appeal, reducing the life sentence that had been imposed to sixteen years incarceration, and imposing a period of parole ineligibility of seven years. In making the latter disposition, we relied upon the power of a court to increase the period of parole ineligibility pursuant to s. 743.6 of the Criminal Code.

[3] This was a prisoner appeal. Mr. Di Luca acted as duty counsel, however, and following the release of our decision he wrote to the court seeking clarification and/or correction of the order. He submits that the court incorrectly applied its discretion under s. 743.6 by imposing a period of parole ineligibility that was not either one-half of the sentence imposed or ten years, whichever is less. While the section provides for a discretion to order a longer period of parole ineligibility than would normally apply, he argues that the length of that order is not discretionary.

[4] Our order was finalized and entered on September 8, 2005. In seeking clarification or correction of the order, the appellant relies upon the court’s power to vary an order (a) where it is necessary to correct a clerical error, or (b) where there was an error in expressing the manifest intention of the court. Failing that jurisdiction, he invokes the limited power of the court to reopen and reconsider an appeal in exceptional cases where the appeal was not decided on its merits. See R. v. H. (E.F.), R. v. Rhingo (1997), 1997 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.) at 94 and 100-101.

[5] We are unable to accede to the appellant’s request to vary the order. This is not a case where the final order as entered contains a clerical error, or where it fails to express the manifest intention of the court. What the appellant is seeking is to have us reopen and reconsider our decision. This we do not have the jurisdiction to do in the circumstances: R. v. H. (E.F.), R v. Rhingo, supra.

[6] Whether our resolution regarding parole ineligibility for a period of seven years was correct or incorrect, the court considered the issue and decided it. Mr. Di Luca candidly acknowledges that there was some discussion at the hearing, albeit brief, with respect to parole ineligibility. We cannot now reopen the issue for further argument.

[7] As Charron J.A. noted in Rhingo, at 101-102, the inherent or ancillary power of an appellate court to reopen an appeal only applies to situations where the appeal has not been disposed of on the merits:

The power to reopen proceedings in the exercise of the court’s ancillary or inherent jurisdiction to control its own process cannot, in my view, extend to cases where the appeal has been heard on the merits. 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.

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.

[8] Once the order has been finalized and entered, the same principle applies whether the request is made to the panel that made the original decision or to a different panel.

[9] Accordingly, the appellant’s request is denied.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J.L. MacFarland J.A.”