DATE: 20050826

DOCKET: C40788

M32739

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOPHER WARREN BONIN (Appellant/Applicant)

BEFORE:

BLAIR and LANG JJ.A. and KOZAK J. (ad hoc)

COUNSEL:

Christopher Bonin in writing and in person

Jane C. Arnup in writing

for the respondent

HEARD:

August 23, 2005

E N D O R S E M E N T

[1] Mr. Bonin moves in writing for an order permitting him to re-open his appeal to argue a point that he submits the panel did not consider. The appeal was heard and dismissed on September 15, 2004. Mr. Bonin unsuccessfully sought leave to appeal to the Supreme Court of Canada. The Crown has moved to quash Mr. Bonin’s motion on the ground that he has already sought, and failed, to obtain leave to appeal to the Supreme Court on the same basis that he is now seeking to re-open the appeal.

[2] In our view, Mr. Bonin’s motion must be dismissed. It is therefore unnecessary to deal with the Crown’s cross-motion.

[3] Mr. Bonin argues that the panel failed to determine the question whether the curative proviso could or should be applied despite an error of law on the part of the trial judge in failing to consider the first two prongs the test articulated in R. v. W (D.), (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Consequently, he submits, the appeal has not been determined on its merits, and the court therefore has jurisdiction to re-open the argument.

[4] We disagree.

[5] If the panel failed to deal directly with the W.(D.) argument it was because the argument was not raised as one of “issues to be considered” as set out in the appellant’s materials. The reasons of the panel canvassed and disposed of all six grounds set out by the appellant in his written argument. In any event, the W.(D.) issue was raised directly upon the leave application to the Supreme Court of Canada. Leave to appeal was refused.

[6] In our view, Mr. Bonin’s appeal was dealt with on the merits and there is no basis for re-opening it for further argument. He has had a full appeal at two levels and his recourse to the Supreme Court was unsuccessful. He cannot now seek to start anew.

[7] The motion to re-open the appeal is dismissed. In the circumstances, the motion to quash is dismissed as well.

“R.A. Blair J.A.”

“S. Lang J.A.”

“L.C. Kozak J.