COURT OF APPEAL FOR ONTARIO DATE: 20231212 DOCKET: M54286 (C67526)

Fairburn A.C.J.O., Zarnett and George JJ.A.

BETWEEN

His Majesty the King Respondent/Respondent

and

Preston Darnell Scott Appellant/Applicant

Counsel: Myles Anevich, for the applicant Manasvin Goswami, for the respondent

Heard: June 30, 2023

Zarnett J.A.:

A. Overview

[1] The applicant seeks to reopen his appeal from a conviction for robbery. That appeal was dismissed in April 2022 by a different panel of this court.

[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.

B. Procedural Background

[7] In June 2019, after trial by judge alone, the applicant was convicted of robbery. He was found to have aided his co-accused in committing a violent home invasion. In September 2019 he was sentenced to 6.5 years in prison.

[8] The applicant’s appeal to this court, from conviction and sentence, was heard by a panel on April 12, 2022. The applicant raised five grounds of appeal against conviction, one of which was that the verdict was unreasonable, and the Crown responded to each ground.

[9] On April 25, 2022, the panel’s reasons were released: R. v. Scott, 2022 ONCA 317. The reasons addressed and rejected arguments against the conviction, and at one point stated that the applicant did not “…claim that the trial judge reached an unreasonable verdict.” The conviction appeal was dismissed. On consent the sentence appeal was allowed, and the sentence was reduced by 23 days.

[10] A formal order dismissing the conviction appeal and reducing the sentence was issued and entered in September 2022.

[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.

C. The Positions on Jurisdiction to Reopen

[14] The applicant acknowledges that this court’s jurisdiction to reopen an appeal is limited, but he argues this is a case in which the panel did not hear and decide the appeal on its merits, because it did not decide all of the merit-based arguments that had been advanced.

[15] In his facta and oral arguments for the original appeal, the applicant raised five grounds: (i) an error in the assessment of mens rea; (ii) erroneous conclusions about his participation in the home invasion; (iii) inadequate reasons; (iv) unreasonable verdict; and (v) misapprehension of evidence. [2]

[16] The Crown responded to all these grounds in its facta and in oral argument.

[17] But, according to the applicant, the reasons of the panel incorrectly identified the grounds for the conviction appeal by leaving out the unreasonable verdict ground, and then expressly and incorrectly stated that the applicant did not raise an unreasonable verdict ground of appeal. The reasons said the grounds were:

i. The trial judge made an improper assumption in finding that the [applicant] saw the two intruders put on their face masks as they left the vehicle; ii. The trial judge’s reasons were insufficient to convict the [applicant] of aiding in the commission of the offence, given his misapprehension of evidence, and that he failed to address the conflicting testimony as to whether the [applicant] was in the front driver seat and started and then stopped the vehicle when police arrived”.

And the reasons said that the applicant did not “…claim that the trial judge reached an unreasonable verdict.”

[18] The applicant concedes that at other points in the reasons, an argument that the verdict was unreasonable is indirectly addressed and rejected, but only in the sense of whether the trial judge had failed to consider inferences alternative to guilt, not in the sense that the verdict was illogical in that it rested on findings of fact incompatible with evidence that was neither contradicted or rejected by the trial judge. In other words, although the reasons may have indirectly addressed whether the verdict was unreasonable because there was a Villaroman error (referring to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000) it did not address whether the verdict was unreasonable because there was a Beaudry error (referring to R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).

[19] The Crown submits that there is no jurisdiction to reopen an appeal on the basis that the panel overlooked an argument or was incorrect in framing the issues. The Crown also argues that, read as a whole, the reasons deal with the substance of an argument that the verdict was unreasonable, whether viewed from the Villaroman or the Beaudry perspective. The panel held not only that the trial judge’s conclusion about the applicant’s participation was the “only reasonable inference” but also recognized the need for a “logical connection” between the verdict and its basis.

D. Analysis

(1) Preliminary Considerations

[20] Three preliminary points are apt.

[21] First, for the purpose of the jurisdictional question only, it is appropriate to proceed on the basis that the applicant’s proposition that the panel’s reasons for decision incorrectly overlooked an aspect of his unreasonable verdict argument is correct. If there is no jurisdiction to reopen even if that proposition is correct, it is unnecessary to decide whether the Crown is right that this aspect of the unreasonable verdict argument was indirectly addressed and rejected in the panel’s reasons.

[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] 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), 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, [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), 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.

[39] I would dismiss the application.

Released: December 12, 2023 “J.M.F.” “B. Zarnett J.A.” “I agree. Fairburn A.C.J.O.” “I agree. J. George J.A.”

Footnotes

[1] On the issuance of a formal order, a court is generally considered to be functus officio without power to return to the decision to correct it, except where there is statutory authority to do so, to correct slips or mistakes in drawing up the formal order itself, or where the matter was not heard on the merits: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at paras. 32-33.

[2] This is how the applicant parses his arguments from the original appeal in his factum on this application to reopen the appeal. The arguments in his original appeal factum were organized slightly differently but are substantively identical.

[3] Another post-Rhingo example is where, due to an administrative error, the court disposed of an in-writing appeal without receiving the appellant’s written submissions: R. v. Jonas (1999), 139 C.C.C. (3d) 136 (Ont. C.A.).