Court of Appeal for Ontario
Judges: Strathy C.J.O., MacPherson and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
Tyler Perkins Appellant (Applicant)
Counsel
Jennifer Penman and Karen Heath, for the appellant/applicant
Christine Bartlett-Hughes, for the respondent
Heard: In writing
Application
On application seeking leave to reopen sentence appeal dismissed on July 29, 2015, with reasons reported at 2015 ONCA 521.
BY THE COURT
A. Overview
1The applicant seeks leave to reopen his sentence appeal in relation to his conviction for sexual assault, voyeurism and breach of probation x2 (the "sexual assault/voyeurism conviction"), which was heard and dismissed by this court on July 29, 2015: R. v. Perkins, 2015 ONCA 521. The applicant seeks to reopen the sentence appeal on these charges on the basis of a change in circumstances that occurred a year after the appeal was adjudicated on the merits. Specifically, the applicant was successful in having convictions for domestic assault and breach of probation x2 overturned in July 2016 (the "domestic assault conviction"): R. v. Perkins, 2016 ONCA 588.
2The applicant argues that this court should find that it has jurisdiction to reopen his sentence appeal on the sexual assault/voyeurism conviction and that it is in the interests of justice to reopen his sentence appeal, based on the fresh evidence of his domestic assault conviction having been quashed. He argues that he should be credited a further eight months of pre-sentence custody toward his sentence on the sexual assault/voyeurism conviction, the portion of his pre-sentence custody which was used up on the domestic assault conviction. He further argues that the trial judge on the sexual assault/voyeurism case considered the domestic assault conviction as an aggravating factor in determining sentence on the sexual assault/voyeurism conviction and would have come to a different result, had the domestic assault conviction not been considered.
3For the reasons set out below, we would dismiss the application to reopen the sentence appeal.
B. Facts
4The applicant was arrested for domestic assault and two counts of breach of probation on May 12, 2011 (the "domestic assault charge"). On June 8, 2011, while in custody, he was charged with sexual assault, voyeurism, choking with intent and two counts of breach of probation, in relation to a different complainant (the "sexual assault/voyeurism charges"). On August 23, 2011, the applicant was convicted of the domestic assault charge. He was sentenced on February 3, 2012 to eight months in jail. A little less than eight months of pre-sentence custody was taken into consideration in sentencing him on the domestic assault charge.
5On March 18-20, 2013, the applicant had his trial on the sexual assault/voyeurism charges. He was convicted of the charges on May 8, 2013. On July 26, 2013, he was sentenced to six years in jail. The trial judge took into account 17 "real" months of pre-sentence custody, which did not include the eight months of pre-sentence custody previously credited on the domestic assault conviction.
6On September 4, 2013, the applicant filed a Notice of Appeal appealing both conviction and sentence on the domestic assault conviction. On November 28, 2013, he filed a Notice of Appeal appealing both conviction and sentence on the sexual assault/voyeurism charges.
7On July 10, 2015, this court dismissed the applicant's sexual assault/voyeurism conviction appeal and allowed the sentence appeal only to the extent of increasing the credit that he received for the 17 months of pre-sentence custody served up to the full 1.5:1 credit as required by R. v. Summers, 2014 SCC 26.
8On July 22, 2016, this court allowed the applicant's conviction appeal on the domestic assault charge and concluded that it would not be in the best interests of justice to order a new trial, in light of the fact that the applicant had already served his sentence of eight months in jail.
C. Issues
(1) Does the court have jurisdiction to reopen the sentence appeal on the sexual assault/voyeurism conviction?
(a) Parties' Positions
9The applicant recognizes that he has already had his sentence appeal decided on its merits and, pursuant to R. v. Rhingo, 115 C.C.C. (3d) 89, his appeal right has been exhausted. However, the applicant argues that the court should expand the scope of this court's jurisdiction to reopen an appeal beyond the limits set out in Rhingo because of what he describes as a "procedural irregularity" – the order in which his appeals were heard – resulting in the sentencing judge on the sexual assault/voyeurism conviction taking into account a conviction for domestic assault which was ultimately quashed. In the alternative, the applicant argues that s. 683(3) of the Criminal Code allows for the incorporation of civil powers into the criminal appeal context. Reading s. 683(3) together with Rule 59.06(2) of the Rules of Civil Procedure, which allows a party to make a motion to have an order set aside or varied on the ground of fraud or facts arising or discovered after it was made, the applicant argues there is an alternative route to jurisdiction to reopen an appeal decided on its merits.
10The respondent argues that once an appeal has been heard on its merits and a formal order entered, the court is functus officio. The remedy the applicant seeks, the reopening of his sentence appeal to take into account a change in circumstances which occurred a year after the appeal was determined on its merits, is inconsistent with the principles identified in Rhingo, ignores the court's status as functus officio, and usurps a function reserved for the Supreme Court of Canada or the Minister of Justice in limited circumstances. The respondent further submits that s. 683(3) cannot establish a statutory right to reopen an appeal that has been decided on its merits. The respondent argues that, when read in the context of the entire section, s. 683(3) serves only to expand the procedural powers of this court that are necessary to adjudicate appeals, but cannot expand the rights of parties to appeal. Interpreting s. 683(3) to permit an appeal of a final order of the court of appeal on the basis of a civil rule of procedure is inconsistent with Parliament's express grant of limited appeal rights set out in s. 675(1) and s. 691(1) of the Criminal Code.
(b) Analysis
(i) The scope of the power to reopen an appeal as set out in R. v. Rhingo
11The case law is well-settled that this court's jurisdiction to reopen an appeal is limited to cases which have not been heard and decided on the merits. Charron J.A. recognized in Rhingo that there is no statutory authority to reopen an appeal that has been heard on the merits, nor can the power to reopen an appeal that has been heard and decided on the merits be found in the inherent or ancillary powers of the court to control its own process: Rhingo, at paras. 30-38. Charron J.A. set out the sound policy reasons for limiting the power to reopen appeals to those that have not been heard on the merits at para. 34:
[…] 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 recognized that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even through 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. […] The appellate process cannot become or even appear to become a never-closing revolving door through which applicants come and go whenever they propose to argue a new ground of appeal.
12This court in R. v. G.B., 169 O.A.C. 33, 172 C.C.C. (3d) 340, considered the decision in Rhingo and, while concluding that Rhingo did not apply in the context of that case, reiterated at para. 20 that there is no authority in Canada entitling a party to apply to a court to have a conviction set aside on the basis of newly discovered evidence after all appeal rights have been exhausted and the final court is functus officio.
13Numerous other appellate courts have similarly recognized that there is no jurisdiction to reopen an appeal heard on the merits: R. v. Widdifield, 2016 BCCA 412; R. v. Purdy, 2010 BCCA 43; R. v. Akinbiyi, 2008 SKCA 92.
14The applicant argues that Rhingo defined the scope of the court's power to reopen an appeal narrowly because it was addressing only the facts at issue on the applications before the court (one which sought to reopen the appeal in order to supplement arguments advanced at the first appeal and the other to reopen to attack a procedural decision made at the first appeal). He argues that his circumstances are different than those addressed in Rhingo, in that they arise from a "procedural irregularity" - the order in which his appeals were heard. He also argues that the policy considerations in Rhingo that a "revolving door" or "unlimited discretion" to reopen appeals would erode the principle of finality are not in play in his case because of the unique facts of this case, where the effect of the timing of his appeals rendered his sexual assault sentence and appeal thereof to be based on inaccuracies.
15A fair reading of Rhingo does not support the applicant's position that the scope of the power to reopen appeals set out in that case was narrowly defined because it spoke only to the facts in issue on the applications before the court in that case. On the contrary, Charron J.A. approached her analysis in the broadest of terms, first canvassing the fundamental principle of the exceptional nature of an appeal, then conducting a comprehensive review of both the statutory provisions within the Criminal Code governing rights of appeal and the inherent and ancillary powers of the court to control its own process. She recognized that the power of the appellate court to control its own process includes the jurisdiction to reopen an appeal which has not been heard on the merits, but that there is no authority, either under express statutory terms under the Criminal Code or in the court's inherent powers, to reopen a case that has been heard on the merits. The specific basis upon which each applicant in Rhingo sought to reopen his case was largely irrelevant to the analysis because the decisive factor was that both were seeking to reopen their appeals after the appeals had been decided on the merits.
16Second, it is noteworthy that Charron J.A., at paras. 49-53, reviewed this court's decision in R. v. Logan, 1988), 27 O.A.C. 154, in which this court granted an application to reopen an appeal against sentence on the basis that the original appeal panel committed an error in its treatment of the applicant's parole eligibility period. There, the court did not engage in a jurisdiction analysis, and the Crown took the position that the court had jurisdiction to reopen the appeal. As such, the decision has little precedential value on the question of jurisdiction, but Charron J.A. nevertheless stated, at para. 52:
There is no question but that the appeal from sentence had been disposed of on the merits at the time Logan and Dunbar applied to the court to have the matter reconsidered. However, in the end result, the judgment of the court was not changed and, strictly speaking, it was not necessary to decide the issue of jurisdiction. The appeal was reopened on consent of the Crown, and, although it is clear that consent can never serve to confer upon the court a jurisdiction it does not have, it may explain why the issue was not fully canvassed at the time.
In any event, I find it necessary, for the reasons stated earlier, to depart from the principle implied by the court's assumption of jurisdiction in Logan. In my view, since the court did not have the jurisdiction to change its earlier decision pertaining to the appeal from sentence, the better course would have been to summarily dismiss the application for want of jurisdiction. [Emphasis added.]
17Therefore, it is clear that Charron J.A.'s analysis applies across all appeal matters, including appeals of sentence, which have been determined on their merits. While there has been recognition by this court, subsequent to Rhingo, that the court has jurisdiction to reopen a sentence appeal where the court did not have all the information which existed at the time of the appeal to fully and properly adjudicate the issue on the merits, as in the cases of R. v. De La Cruz, 2003 ONCA 822 at para. 4 and R. v. Edwards, 2015 ONCA 537 at paras. 4-5, it is an entirely different thing to suggest that the court should reopen an appeal to consider new events and circumstances which did not exist at the time, but which now exist. Therefore, there is no support in the jurisprudence for the applicant's suggestion that the scope of the power to reopen appeals decided on the merits should be expanded.
18The second thread of the applicant's argument, that expanding the scope of the power to reopen would not erode the principle of finality or confer new substantive or procedural rights because of the unique factual scenario arising from the "procedural irregularity" which occurred, is also not persuasive. The order in which the applicant's appeals were heard by this court does not constitute a procedural irregularity. The timing and order of proceedings in this court was within the control of the applicant and the applicant made no motion to have the matters heard in a particular order.
19Further, the applicant's case does not present a particularly unique circumstance. He was convicted of a crime, used up a portion of his pre-sentence custody on being sentenced for that crime, and his conviction for that crime was subsequently overturned. Virtually any applicant who finds success in overturning a conviction could make the very same argument the applicant advances now. There would be no finality if an applicant can come back, after the court has disposed of a sentence appeal, and request that the court reopen his appeal because a separate conviction on another matter has been overturned. The applicant's requested remedy raises the exact concerns addressed in Rhingo about the erosion of finality if appeals which have been decided on their merits are reopened.
(ii) Jurisdiction based on s. 683(3) of the Criminal Code and Rule 59.06(2)(a) of the Rules of Civil Procedure
20As to the alternate route of jurisdiction through a combined reading of s. 683(3) of the Criminal Code and Rule 59.06(2)(a) of the Rules of Civil Procedure, the applicant argues that the quashing of his domestic assault conviction constitutes "facts arising after the court's ruling on his sexual assault appeal". This court in R. v. Codina, 2009 ONCA 970 at para. 8, already expressed a reservation about using the Rules of Civil Procedure to extend the statutory criminal jurisdiction of the court of appeal beyond the jurisdiction expressly granted in the Criminal Code. Indeed, when this court has resorted to using a Rule to reopen an appeal, it has been to correct an error. For example, in R. v. Kohl, 2009 ONCA 254 at para. 12, the court invoked s. 683(3) and Rule 59.06(1) to strike what it later concluded based on additional information, was an impermissible probation order.
21We agree with the reservation the court expressed in Codina that s. 683(3) of the Criminal Code can be read as extending the statutory criminal jurisdiction of the court of appeal beyond the jurisdiction expressly granted by Parliament in the Criminal Code. When the words of s. 683(3) are read in the context of the entire section, it is clear that Parliament intended that the court of appeal have the same evidentiary and procedural powers necessary to adjudicate criminal appeals as it does for civil appeals. Section 683(1) sets out the powers of the court of appeal to make orders of a procedural nature in order to facilitate the adjudication of an appeal, where it is in the interests of justice to make such procedural orders. Section 683(3) expressly expands the scope of the procedural orders the court of appeal can make, beyond those enumerated in subsection (1), to include any power which can be exercised in civil matters. Section 683(3) reads:
A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court […].
22Both subsection (1) and (3) have, as their clear intention, to give the court of appeal powers to make orders to facilitate the hearing of an appeal. Neither of the express provisions within the Criminal Code setting out the rights of appeal (s. 675 and s. 691(1)) contemplate an appeal to the court of appeal to review the dismissal of an appeal. Appeals from this court's decisions lie with the Supreme Court of Canada or, in limited circumstances, to the Minister of Justice for review on the grounds of a miscarriage of justice.
23Reading s. 683(3), together with Rule 59.06(2)(a), to permit this court to reconsider its own decisions on the merits encroaches on Parliament's exclusive jurisdiction to determine rights of appeal of convicted persons. As the respondent notes, several appellate courts have recognized that jurisdiction in criminal matters cannot be grounded in provincial legislation: see R. v. De Jong, [1996] B.C.J. No. 682 (B.C.C.A.) at para. 25; R. v. Budgen at pp. 4-5.
(iii) Conclusion on jurisdiction
24This court does not have jurisdiction to reopen the sentence appeal.
(2) If the court had jurisdiction, would the interests of justice require the applicant's sentence appeal be reopened?
(a) Parties' Positions
25The applicant argues that with the fresh evidence of his domestic assault conviction having been quashed, it is likely that the sentencing hearing on the sexual assault/voyeurism conviction would have produced a different result. He asserts it would be unjust for him to remain incarcerated, given that he would now be eligible for release had the pre-sentencing custody which was used up on the domestic assault conviction been counted toward his sentence on the sexual assault/voyeurism conviction. The applicant submits that public confidence in the administration of justice would be undermined if he were not granted credit on the sexual assault/voyeurism conviction for the pre-sentence custody served on the now-quashed domestic assault conviction.
26The appellant submits the quashing of the domestic assault conviction constitutes "fresh evidence" which satisfies the test set out in R. v. Palmer, [1980] 1 S.C.R. 759, and that his sentence appeal has merit. If the court accepts that he is entitled to be credited the pre-sentence custody used on the domestic assault conviction, then he has served his time. Moreover, he argues that the trial judge on the sexual assault/voyeurism charges considered the domestic assault conviction in constructing a fit sentence on the sexual assault/voyeurism conviction. He notes Justice Rosenberg's obiter comments in R. v. Wilson, 2008 ONCA 510 at para. 48: "If the sentencing judge had taken the prior conviction into account as a serious aggravating circumstance, the fact that the accused was later found to be innocent of that offence would be a relevant consideration."
27The applicant further argues that this court's recent decision in R. v. Pammett, 2016 ONCA 979, has no application to this case because it is distinguishable on the facts. In Pammett, the appellant sought to receive additional credit for pre-sentence custody deducted from his six year sentence for possession of cocaine for the purpose of trafficking, possession of proceeds of crime, and one count of failing to comply with a probation order because he accumulated pre-sentence custody on unrelated charges that were ultimately stayed. The applicant argues that the distinguishing feature in Pammett is that in that case, when the offender was being sentenced on his charges, he had not yet stood trial on the other charges (which were ultimately stayed). The sentencing judge did not consider the matters that had not yet been adjudicated as an aggravating factor in sentencing the offender.
28The respondent states that this court's decision in Wilson is dispositive of the applicant's claim that he is entitled to reopen his appeal based on the position that he should be credited with the pre-sentence custody that was credited to his sentence on the quashed domestic assault conviction. This court recognized in Wilson that it will not always be the case that an accused will receive full credit for time spent in custody and that accused parties cannot be permitted to "bank" time spent in custody. Further, the respondent argues that the trial judge, while noting the domestic assault conviction when imposing sentence, clearly focused on the applicant's prior sexual assault conviction and a voyeurism conviction, along with the information in the pre-sentence report, in arriving at a sentence. It cannot be said that the domestic assault conviction added significantly to the weight of circumstances that caused the trial judge to conclude that the applicant was a high risk to reoffend and that a sentence of six years was warranted.
29The respondent further submits that this court in Pammett followed the decision in Wilson that time spent in custody by an offender on unrelated charges cannot be "banked". In cases where the offender, on appeal, has been given credit for pre-sentence custody served in relation to another offence (such as R. v. Reid and R. v. Tsui, 2005 ONCA 623), that time had not been credited to a sentence imposed following a conviction, and the withdrawal of the charges had taken place prior to the hearing of the appeal. Moreover, this court stated at para. 27 of Pammett that "a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender."
(b) Analysis
(i) Pre-sentence credit for time spent on unrelated charges
30This court's majority opinion in Wilson, together with the decision in Pammett, is dispositive of this issue. As Justice Rosenberg noted at paras. 42-43 of Wilson, to give effect to the submission that an accused is entitled to receive credit for time served on another matter which is ultimately dismissed, or for which he is acquitted, is tantamount to allowing offenders to "bank" time spent in custody. As he stated at para. 45:
But, at the end of the day, when it comes time to sentence an offender the court can only take into account the factors that relate to the particular offence under consideration. The fact that an offender, like the applicant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason to give that offender credit for the time he or she spent serving the sentence for that unrelated conviction.
31As noted earlier in this analysis, this case raises the exact concern about offenders "banking" pre-sentence custody which Justice Rosenberg commented on at para. 43 of Wilson.
32Further, and as the respondent points out in its supplemental submissions, it is unclear from the record whether the applicant consented to his detention on the sexual assault/voyeurism charges, the domestic assault charge, or any of the other charges which he was apparently facing at the time. There is a lack of information as to why the applicant was detained and on which of his charges he was in custody. As such, it is unclear whether it can be said, conclusively, that the eight months in custody was time spent on both the sexual assault/voyeurism charges and the domestic assault charge. It cannot be said, as was the case in Reid and Tsai, that "the accused was refused bail on the second set of charges (the charges that were later withdrawn) because he was already on bail for the first set of charges. Thus, in part, the time spent in custody for the withdrawn set of charges could be attributed to the first set of charges": Wilson at para. 50.
33Further, while it is the unfortunate reality, as Justice Rosenberg recognized in Wilson, that there may be instances where pre-sentence custody cannot ultimately be applied to any sentence, in this case, the applicant's domestic assault conviction was overturned and no new trial was ordered, in light of the fact that he had served his eight month sentence. In the circumstances of this case, the time the applicant served on the domestic assault charge led the court to conclude that it was not in the best interests of justice to order a new trial, the remedy which would ordinarily flow from a conviction being quashed.
(ii) The trial judge's use of domestic assault conviction
34Finally, while there can be no question that the trial judge at least considered the domestic assault conviction when assessing a fit sentence for the applicant, it cannot be said that any aggravating factor the trial judge considered did not exist without the domestic assault conviction. For example, he noted in his Reasons for Sentence that the sexual assault/voyeurism charges were not an isolated incident and referred to the May 2011 domestic assault. However, the evidence to support this conclusion (that this was not an isolated incident) did not rest solely on the May 2011 domestic assault conviction. In particular, and as the trial judge reviewed in his reasons, the applicant sexually assaulted and confined a co-worker. He threatened that complainant with death and punched her in the abdomen to force sexual intercourse. He surreptitiously recorded another woman in 2008 and breached court orders in relation to using a computer to communicate with two other girls. He received a global sentence, after a plea, of seven years. He was sentenced to 21 months jail in 2010 for assault causing bodily harm when he punched a domestic partner in the abdomen, fracturing her renal cortex, and a further month in jail for failing to comply with a probation order. There was significant evidence that the applicant's conduct in the case before the court was not an "isolated incident".
35The trial judge's conclusion that the applicant was a "repeat offender" with "multiple victims all of whom remain fearful of him" was fully supported on the information provided to him in the pre-sentence report, quite apart from the domestic assault conviction. The trial judge's conclusion that the applicant was a high risk for recidivism, necessitating a six year sentence, was entirely appropriate, even when the domestic assault is removed from consideration. The applicant's criminal antecedents, and in particular, the similar level of severity between this sexual assault and the earlier sexual assault which attracted a seven year jail sentence, fully support the trial judge's conclusion on sentence.
(iii) Conclusion on interests of justice
36It would not be in the interests of justice, even if the court had jurisdiction to reopen the applicant's sentence appeal on the sexual assault/voyeurism conviction, to reopen the appeal. The basis of the appeal, that the applicant should be given credit for pre-sentence custody served on another charge the conviction for which was ultimately overturned, is not supported by the case law. A fair reading of the trial judge's reasons reflects that he relied quite minimally on this conviction in any event. It did not materially impact his assessment of the appropriate sentence in this case.
D. Disposition
37For the reasons given, the application to reopen the sentence appeal heard and dismissed by this court on July 29, 2015 is dismissed.
Released: February 22, 2017
"G.R. Strathy C.J.O."
"J.C. MacPherson J.A."
"M.L. Benotto J.A."
1The applicant appealed both his conviction and sentence. Both were dismissed.
