COURT OF APPEAL FOR ONTARIO

DATE: 2003-02-18

DOCKET: M29380 (C32578)

MORDEN, AUSTIN and GOUDGE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

DOMINGOS MANUEL MOURA

Appellant

• and -

ATHANASIOS THOMAS BOGIATZIS, THOMAS CHRISTODOULOU, REGINALD JAMES CHURCHILL and PAUL THOMAS CUSATO

Applicants/Interveners

Counsel:

Delmar Doucette for the applicant Cusato

John L. Hill for the applicants Moura and Christodoulou

W. Glen Orr Q.C. for the applicant Bogiatzis

Marie Abraham for the applicant Churchill

D.D. Graham Reynolds Q.C. and Moiz Rahman for the respondent

Heard: January 15, 2003

MORDEN J.A.:

[1] This is an application to re-open an appeal that this court decided on August 10, 2000. The court’s reasons, under the title of R. v. Babes, are reported at 2000 16820 (ON CA), 146 C.C.C. (3d) 465. The formal judgment was signed and entered. Leave to appeal from the judgment to the Supreme of Canada was refused: 151 C.C.C. (3d) vi.

[2] The applicants are an appellant in the appeal (Domingos Manuel Moura) and four interveners in the appeal who, as a condition of participating in the appeal, are bound by its result.

[3] At the conclusion of these reasons I express my opinion that the application should be dismissed because the forum with jurisdiction to grant the relief sought is the Superior Court and not this court. However, because of some of the issues raised by the Crown, I have dealt with the application at greater length than would otherwise be the case.

The Proceedings to the Present

[4] The history of the proceedings to and including the judgment of August 10, 2000 is set forth in the court’s reasons and need not be repeated in detail. It is sufficient to note at this point that the judgment was given in an application commenced by the federal Crown under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 for “an order sustaining the objections by the Crown made at the preliminary hearing of the respondents before the Honourable Judge Bassel on April 14, 1999 concerning questions which may reveal the identity of the police informant” and “an order allowing this application and declaring that the information sought is privileged”. The application succeeded before Humphrey J. on July 20, 1999. He concluded that “the order will go as requested”. On August 10, 2000 this court dismissed the appeal of the respondent Moura and others from this decision.

[5] As may be seen from this brief outline, the issue was whether the Crown was obliged to disclose the identity of an individual. This individual was referred to in the evidence at the preliminary inquiry as “Informant #1”. The issue turned squarely on whether this person was a police agent, in which case the Crown would be obliged to disclose his or her identity, or a police informer, in which case the Crown would be under a duty not to disclose the person’s identity.

[6] The preliminary inquiry judge, Bassel J., had ruled that Informant #1 was a police agent. This ruling was the basis of the Crown’s decision to apply under s. 37 of the Canada Evidence Act. As indicated, both Humphrey J. and this court came to the opposite conclusion from that of Bassel J. and held that the Crown was entitled to the relief it sought in the application.

[7] The evidence in the application included affidavits of Detective Cavanaugh of the Ontario Provincial Police, which had been sworn in support of applications for authorizations to intercept private communications, and transcripts of the cross-examination of Detective Cavanaugh at the preliminary inquiry. It is not necessary for the purpose of these reasons to set forth this evidence at any length. It is sufficient to say that the evidence upon which Humphrey J. and this court relied was unequivocally to the effect that Informant #1 was a police informer and not a police agent. As I shall indicate in the next part of these reasons, the Crown has subsequently disclosed evidence which contradicted the evidence on which we relied. This is not disputed by the Crown.

The Current Proceedings

[8] The proceedings are now at the trial stage before Justice John Macdonald. Several pre-trial motions were made before him. One of them related to outstanding disclosure to be made by the Crown, a Stinchcombe application. This motion became unnecessary because prosecuting counsel voluntarily provided the disclosure sought.

[9] From this disclosure, defence counsel learned two important pieces of information.

[10] First, it learned that Detective Cavanaugh had destroyed the investigative file that had been used to draft the affidavits that he swore in order to obtain the authorizations. Based on this information, the appellant brought an application for a stay of proceedings, the Carosella application.

[11] Second, the applicants learned that Informant #1, contrary to Detective Cavanaugh’s testimony on which Humphrey J. and this court relied, had been a police agent in relation to matters relevant to the proceedings before the preliminary inquiry judge and to the s. 37 application. This was revealed in a summary of those portions of his affidavits that had been edited (i.e., blacked out) when first disclosed to the defence. As indicated earlier, it is not necessary to set forth this evidence. The Crown concedes that it contradicted the evidence on which Humphrey J. and this court relied and that, as a result, our judgment is “not binding”. It does not concede, however, that our conclusion is wrong.

[12] Based on the new information, the applicants brought another application for stay of proceedings which was called the “Babes application”.

[13] The argument on these two applications began near the end of August 2002. At that time, Macdonald J. ruled that he would reserve judgment on each of them until the evidence had been heard on a third application, a Garofoli application. It was at this point that counsel for the applicants, in response to an earlier question by the judge related to seeking relief from this court, informed him that they would apply to this court to re-open the matter. This has now been done.

[14] The stated ground in the notice of application to set aside our judgment is that “this Honourable Court was misled by false evidence in its original decision in this matter”.

The Issues Raised and their Resolution

[15] It is convenient to begin with the statement of the Crown’s response to this application. The Crown’s “principal position” is that this application is unnecessary because there is another forum in which the applicants may seek relief. This forum is the trial court and before this court the Crown will take the position that our order is not binding because it is “based on an incomplete and inaccurate record”. Accordingly, the Crown submits that the question of the true status of Informant #1 can be “re-litigated”.

[16] The Crown’s next position is that this court lacks the jurisdiction to set aside the order because the appeal was “heard on its merits”, citing R. v. H (E.F.); R. v. Rhingo (1997), 1997 418 (ON CA), 115 C.C.C. (3d) 89 at 101 (Ont. C.A.).

[17] It may be noted at the outset that the Crown’s primary position does not involve the assertion that the court lacks jurisdiction to set aside the judgment. It is merely that, if the court has jurisdiction, it should decline to exercise it because there is another forum which can deal with the matter.

[18] I do not think that this submission has merit. It pays no recognition to the fact that the court has an interest in the integrity of its process. I shall say more on this shortly. Related to this, it fails to recognize that the Crown itself decided that the s. 37 application was the proper proceeding to resolve the question of its duty to disclose the identity of Informant #1 for the purposes of the proceeding as a whole and not just the preliminary inquiry. All parties, including the interveners, were to be bound by the decision made on it, even though the interveners were not “parties” before the preliminary inquiry judge. No doubt, if the Crown, through its action or inaction (I need not characterize its conduct more precisely), had not rendered the order made “not binding”, it would, rightly, have taken the position that the s. 37 decision was binding on all parties throughout the proceeding. It is not right that it should now take the position that the question should be re-litigated from the start in a different forum as part of the trial which is now in progress, and that the s. 37 proceeding, including the appeal to this court, can simply be forgotten, as if it never happened.

[19] Accordingly, I turn now to the Crown’s second position which relates to the jurisdiction of the court to re-open the appeal, more specifically, to the first step in this process, to set aside its order. (I am now using the term “the court” in an inclusive sense. As indicated in paragraph 3 above and explained in paragraph 24 below, in this case the particular court that has the jurisdiction to grant the relief sought is the Superior Court.) The court has an inherent jurisdiction to guard against the abuse of its process and to rectify miscarriages of justice. Specifically, the court has the power to set aside a judgment obtained by fraud or perjured evidence or where the judgment cannot stand in the light of newly discovered evidence. I refer to the following passage in the reasons of Estey J.A. in 100 Main Street East Ltd. v. Sakas (1975), 1975 381 (ON CA), 8 O.R. (2d) 385 (C.A.) at 389 respecting what must be shown to have a judgment set aside on these bases:

The important distinction between the consequences in law of the discovery of new evidence generally, and new evidence or circumstances revealing fraud, is the subject of an observation by Lord Buckmaster in Hip Foong Hong v. H. Neotia & Co., [1918] A.C. 888 at 894:

… the applicant must go further and show that the [new] evidence was of such a character that it would, so far as can be foreseen have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail;

These authorities make it clear that new evidence of fraud must related to the “foundation” of the decision or be “material” to the claim or defence, but need not necessarily amount to a “determining factor in the result”.

[20] Before returning to the inherent jurisdiction of the court, I should say something about the Crown’s reliance on the statement in R. v. H. (E.F.); R. v. Rhingo, supra, to the effect that the court lacks jurisdiction to set aside an order made on an appeal “heard on its merits”. I do not think that this decision is applicable to the present case. It was concerned with appeals from convictions. With respect to convictions (and acquittals for that matter), I am unaware of any 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.[^1] In fact, in R. v. Liscomb (1961), 1961 483 (AB SCAD), 131 C.C.C. 418 (Alta. Sup. Ct. App. Div.), an authority referred to in R. v. H. (E.F.); R. v. Rhingo at p. 106, note 10, the court held that it did not have jurisdiction to re-open an appeal on the ground of discovery of new evidence after the appeal had been dismissed. What right of recourse there may be in the circumstances lies in an application to the Minister of Justice under s. 690 of the Criminal Code. In the United States, it appears that there is direct recourse by applying to the trial court in cases of newly discovered evidence. See Federal Rules of Criminal Procedure, Rule 33 and M. Friedland, Double Jeopardy (1969), at 276-77.

[21] I see no reason why the lack of jurisdiction to set aside a conviction after appeal should be equally applicable to setting aside an order made under s. 37 of the Canada Evidence Act, even in cases in which the application is made in a criminal context. Accordingly, I think that recourse could be had to the inherent jurisdiction of the court with respect to a s. 37 order that has been upheld on appeal.

[22] On the assumption that there is jurisdiction to set aside a judgment based on perjured evidence, the Crown has submitted that the alleged fraud is not supported by the evidence, that is, that it is not shown that Detective Cavanaugh intentionally misled the court. In this regard, it refers to an observation of Macdonald J. in his ruling on the Carosella and Babes motions:

In his testimony in respect of the stay applications several days ago, Detective Cavanaugh was not confronted with the suggestion that he had lied in this regard at the Preliminary Inquiry. He was not questioned on these serious assertions. He has therefore not had the opportunity under oath in court to respond to the allegation that he lied, and to be tested by cross-examination upon any explanation which he may offer.

[23] The Crown also states that none of the Crown counsel involved in this matter (either at the appeal or trial level) was actually aware of the previously edited passage disclosed in May 2002. The Crown does acknowledge, however, that since it had access to this material, it ought to have known of it.

[24] I have dealt, generally, with the jurisdiction to grant the relief of setting aside the judgment of August 10, 2000 on the basis of newly discovered evidence, by which term I include evidence of fraud or perjury. Accepting that this jurisdiction exists, it appears that the relief must be sought in the court of first instance, even if the judgment in question has been affirmed by an appellate court. See Boswell v. Coaks (1894), 6 R. 167 (H.L.); Jeannette v. Michigan Central R.R. Co. (1919), O.W.N. 137 (H.C.); McGuire v. Haugh, 1933 166 (ON CA), [1934] O.R. 9 (C.A.); Reeder v. George E. Shiner, [1948] O.W.N. 501 (C.A.) affirmed [1949] S.C.R. viii, leave to appeal to the P.C. granted [1949] S.C.R. vii; and International Corona Resources Ltd. v. LAC Minerals Ltd. (1988), 1988 4534 (ON SC), 66 O.R. (2d) 610 (H.C.). In Royal Trust Co. v. Jones, 1961 50 (SCC), [1962] S.C.R. 132 at 145-46 Cartwright J. said:

An examination of the authorities leads me to the conclusion that it has long been settled in England that the proper method of impeaching a judgment of the High Court on the ground of fraud or of seeking to set it aside on the ground of subsequently discovered evidence is by action, whether or not the judgment which is attacked has been affirmed or otherwise dealt with by the Court of Appeal or other appellate tribunal.

In Re Bell Estate, [1947] O.W.N. 801 (C.A.), this court did set aside an order made by it “without prejudice … to … the parties … to move before a single Judge in Court, for an order referring to the whole matter back to the Master for inquiry …” but it seems clear that this order was made on the consent of the parties.

[25] This allocation of jurisdiction makes sense because its exercise will frequently entail fact finding. No doubt, if the serious findings sought by the applicants are to be made, they can be much more properly made in the Superior Court after an appropriate hearing.

[26] For these reasons I would dismiss the application without prejudice to the right of the applicants to seek the relief sought by a proceeding in the Superior Court.

“ J.W. Morden J.A.”

“I agree A.M. Austin J.A.

“I agree S.T. Goudge J.A.

Released: February 18, 2003

[^1]: This question seems to have been left open in R. v. R.F., [2000] B.C.J. No. 498 (C.A.) para. 5 but not left open in R. v. Garcha, [2000] B.C.J. No. 2025 (C.A.), which referred to R. v. R.F. and other decisions and then said:

> We are all of the view that, in the circumstances of this case, when the conviction appeal was heard and dismissed on the merits and the order dismissing the appeal has been entered, this Court does not have jurisdiction to re-open the appeal.