Ontario Court of Appeal

Citation: R. v. Codina, 2009 ONCA 907

Date: 2009-12-21

Docket: CA M37362-C28830

Judges: Doherty J.A., E.E. Gillese J.A., J.C. MacPherson J.A.

Counsel:

Angelina Marie Codina, for herself.

Benita Wassenaar, for Respondent.

[1] The applicant has applied to reopen her appeal. At the conclusion of oral argument, the court dismissed the application with reasons to follow. These are those reasons.

[2] The procedural history of this application is unimportant given the approach we have taken to the merits. There is no doubt that the ultimate determination of whether an appeal should be reopened in this court lies with a panel of this court. Having regard to the massive material placed before the panel, the 66 page factum of the applicant, and her lengthy submissions, we were satisfied that the interests of justice were best served by addressing the merits of the application to reopen rather than the collateral procedural issues raised by the applicant.

[3] The applicant was convicted of defrauding Legal Aid in January 1998. Her appeal from conviction and sentence to this court was argued and dismissed in December 2000. An application for leave to appeal from the order of this court was dismissed by the Supreme Court of Canada in May 2001. The applicant was represented by counsel at all levels.

[4] The application to reopen the appeal was made in the fall of 2008, more than 7 years after the application for leave to appeal to the Supreme Court of Canada was dismissed.

[5] The appeal from conviction and sentence in 2000 was heard and dismissed on its merits by a panel of this court. The endorsement clearly addresses both conviction and sentence. There is no merit to the suggestion that the reference to an appeal from sentence in the recital that precedes the body of the endorsement somehow demonstrates that the appeal was limited to sentence only.

[6] We must address the merits of this application to reopen on the basis that the appeal was disposed of on its merits. In R. v. H. (E.F.) (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), leave to appeal to S.C.C. refused September 18, 1997 [[1997] S.C.C.A. No. 256 (S.C.C.)], Charron J.A. said at p. 106;

This court has jurisdiction to reopen an appeal where an order has been issued dismissing the appeal. That jurisdiction is a facet of the ancillary powers of the court and is limited to cases which have not been heard on the merits.

[Emphasis added.]

[7] In addition to holding that the court's ancillary jurisdiction to reopen an appeal was limited to appeals that had not been heard on the merits, Charron J.A. left open the possibility that this court could, through s. 683(3) of the Criminal Code, resort to rule 59.06 of the Civil Rules to permit the reopening of an appeal that has been heard on its merits in the limited circumstances contemplated by that rule.

[8] We seriously doubt that s. 683(3) can be read as extending the statutory criminal jurisdiction of the Court of Appeal beyond the jurisdiction expressly granted in the Criminal Code. We will, however, assume for the purpose of disposing of this argument that rule 59.06 is available and can in the proper case provide the authority for the reopening of a criminal appeal.

[9] Rule 59.06(1) refers to the correction of orders or judgments that contain "an error arising from an accidental slip or omission". There is no error or omission in the order of this court. Nor, assuming there is any merit to the allegations, does the absence from the appeal file of the original notice of appeal or record of conviction constitute an "omission" for the purposes of rule 59.06(1).

[10] The only other possible applicable provision in rule 59.06 is rule 59.06(2)(a). The applicant contends that she did not receive effective legal assistance on the initial hearing of her appeal. She also argues that one of the counsel involved in the preparation of her appeal was in a conflict of interest arising out of an application for employment with the Law Society that was made very shortly before the applicant's appeal was heard in 2000. The Law Society is the victim of the applicant's fraud. As I understand it, the applicant submits that the allegations of ineffective assistance are all based on facts "arising or discovered" after the appeal was heard. She submits that this brings her within rule 59.06(2)(a).

[11] In her oral argument, the applicant went into great detail about the deficiencies in the evidence relied on by the Crown. She also claimed that counsel had failed to advance an argument based on s. 8 of the Charter, which in the applicant's submission should have been raised. None of these arguments arise out of facts discovered after the appeal.

[12] We are not satisfied that there is any merit to these arguments, or that they provide any basis upon which to question the effectiveness of the representation the applicant received on her appeal. They are merely additional arguments of no proven or apparent merit.

[13] We also see no merit in the conflict of interest argument. Junior counsel was involved in the preparation of the appeal before she decided to seek employment with the Law Society. She did not argue the appeal and, in our view, her subsequent employment with the Law Society does not raise any possible conflict of interest in respect of the appeal in 2000.

[14] Ultimately, the discretion to reopen a criminal appeal rests on a finding of a real concern that there has been a miscarriage of justice. We see no such concern here. We agree with the comments made by Moldaver J.A. in disposing of this motion at first instance:

... There is nothing extraordinary about the applicant's case and nothing to distinguish it from the hundreds, if not thousands of like-minded disgruntled litigants who would relish the opportunity of having a second or third bite at the appellate apple. Moreover, her allegations of incompetent counsel ring hollow; as do her serious, but speculative and unsubstantiated, allegations of conflict of interest on the part of a former counsel ...

[15] The application is dismissed.