COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smithen-Davis, 2020 ONCA 759

DATE: 20201201

DOCKET: M51636 (C65661)

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Applicant)

and

Haldane Smithen-Davis

Appellant

(Respondent)

Susan Reid and Megan Petrie, for the applicant

Alan D. Gold, for the respondent

Heard: October 1, 2020 by videoconference

Watt J.A.:

Background

[1] Three men invaded a home. The home was occupied by its owners, a married couple, and their two small sleeping children.

[2] The invasion did not go as planned. The invaders encountered resistance. One died. The other two fled. Left at the scene were a pair of gloves and a pair of shoes. DNA testing of the gloves and shoes led to two arrests.

[3] Haldane Smithen-Davis (the respondent) and Jason Hamilton were each charged with a single count of break and enter with intent arising out of the home invasion. After a joint trial before a judge of the Ontario Court of Justice, each was convicted and sentenced to imprisonment for a term of nine years. Each appealed conviction and sentence.

[4] About a year ago, after hearing argument on the merits, this panel dismissed both appeals.

[5] The appellant has applied to the same panel to re-open his appeal against conviction. He proposes to adduce evidence that, if believed, denies his participation in the home invasion of which he stands convicted.

[6] By this application, the Crown asks us to quash the respondent's application. The Crown says that we have no jurisdiction to re-open an appeal which has been heard and decided on the merits, or if we have any jurisdiction to do so, we should not exercise it in favour of the respondent in this case.

[7] These reasons explain why I would dismiss the Crown's application. I would permit the respondent to proceed with his application to re-open in accordance with a schedule to be established by the appeal management judge.

The Background Facts

[8] A brief overview of the case as it was presented at trial and the procedural history preceding the respondent's application to re-open and this response by the Crown will provide a frame of reference for the discussion that follows.

The Circumstances of the Offence

[9] Shortly after midnight one December evening, three men broke into a house. The residence was home to a family including their two young children who were asleep in their bedrooms. The intruders had at least one firearm with them.

[10] During the invasion, the male homeowner resisted the three intruders. During the struggle, he shot one of the intruders who subsequently died of his wounds. The other two intruders fled. One left behind a pair of gloves, the other, a pair of white shoes.

[11] None of the occupants of the home could identify either of the fleeing intruders.

The Case Against the Respondent

[12] The case for the Crown at trial consisted of several strands of circumstantial evidence. There were BlackBerry Messenger messages to support the inference that the respondent was involved in the planning of the home invasion in association with others including the man who was shot by the homeowner. The respondent's DNA was found on a pair of gloves located outside the residence where the home invasion occurred. Shortly after the offence, the respondent left Canada on a flight to the U.K. At Canada's request, he was extradited to Canada to face trial with his co-accused, Hamilton.

[13] Neither the respondent nor Hamilton testified or called a defence at trial.

The Appellate Proceedings

[14] On October 24, 2019, the appeals of the respondent and Hamilton were heard by this panel. At the conclusion of argument, the appeals from conviction and sentence were dismissed with reasons to follow. Those reasons were released on November 21, 2019.

[15] On January 17, 2020, the respondent changed lawyers. His new counsel, Mr. Gold, inquired of the Registrar’s office whether the formal order dismissing the appeals from conviction and sentence had been entered. Advised that the order had been issued in connection with Hamilton, but not the respondent, Mr. Gold asked that the formal order not be issued so that he could apply to re-open the appeal.

[16] No formal order dismissing the respondent’s appeals was entered.

The Application to Re-open

[17] On April 27, 2020 counsel for the respondent filed an application to re-open his appeal against conviction. If permitted to re-open the appeal, the respondent will seek to have new evidence of his innocence admitted. The proposed evidence consists of affidavits from the respondent and the co-accused Hamilton. Each asserts that the respondent is innocent of the offence of which he has been convicted.

[18] The application to re-open the appeal from conviction is grounded on the principle that the court is not functus officio since the final order dismissing the appeal has not been issued. It follows that the court has the authority to re-open the appeal and should exercise it in these circumstances to prevent a miscarriage of justice.

This Application

[19] Rather than simply contest the merits of the application, the Crown applies to quash the application to re-open. It is that application to which these reasons respond. The Crown advances two grounds:

i. the court lacks jurisdiction to permit re-opening because it is functus officio with the issuance of reasons, the failure to enter a formal order being irrelevant to the application of the doctrine; and

ii. in the alternative, if the court has jurisdiction to permit re-opening because it is not functus officio in the absence of issuance of a formal order, it is not in the interests of justice to do so in the circumstances of this case.

Ground #1: Functus Officio as a Bar

[20] The principal basis upon which the Crown relies to deny re-opening invokes the doctrine of functus officio. The competing arguments may be summarized briefly.

The Positions of the Parties

[21] The Crown contends that a court of appeal has no jurisdiction to permit re-opening an appeal that has been heard and decided on the merits. Appeals are exceptional. They are wholly creatures of statute. The Criminal Code provides neither express nor implied authority to permit re-opening. This court, as a creature of statute, has no inherent jurisdiction to permit re-opening. Nothing statutory. Nothing inherent. Therefore, no jurisdiction.

[22] The doctrine of functus officio, the Crown says, becomes engaged and erects a bar to re-opening once the court of appeal has provided reasons for its decision. The authorities from other provinces holding that the doctrine of functus officio does not become engaged until the formal order dismissing the appeal is entered have not been followed in Ontario and are wrong in law. No Ontario authority requires issuance of a formal order as a condition precedent to the operation of the doctrine of functus officio as a bar to re-opening appeals decided on their merits.

[23] In any event, the Crown continues, the authorities that permit re-opening despite the absence of a formal order are limited to cases in which the decision has been based on a misapprehension of the trial record, or where re-opening is necessary to avert a miscarriage of justice. That is simply not this case. All that said, in this province, the dispositive factor in the engagement of the doctrine of functus officio is the issuance of reasons disposing of the appeal on its merits. The issuance or entry of the formal order is of no moment.

[24] The respondent rejects the Crown's analysis. The single event which engages the application of the doctrine of functus officio to bar the remedy he seeks is issuance of the formal order dismissing the appeal. Without more, the issuance of reasons imposes no bar. No Ontario authority denies the significance of entry of the final order. What is more, entry of the final order provides a bright line point of demarcation.

[25] In this case, it was perfectly proper to inquire of the Registrar whether the formal order dismissing the appeals had issued. In its absence, as the authorities that have examined the issue make clear, it remained open to the respondent to apply to re-open the appeal from conviction based on new evidence which had not been tendered for admission before the court on the hearing of the appeal. The application to quash the application to re-open should be dismissed.

The Governing Principles

[26] The parties occupy common ground that this Court has jurisdiction to permit re-opening of an appeal. They disagree about the scope of that jurisdiction; whether it extends to appeals heard and decided on the merits, and if it does, when that jurisdiction ends. Upon delivery of reasons for the decision? Or only when the formal order recording the disposition is entered?

[27] As a matter of first principle, appellate rights, procedures on appeal, and jurisdiction of appellate courts are wholly creatures of statute. From this principle, it follows that, if a power to re-open appeals exists, it must be anchored in some statutory authority, whether expressly stated or arising by necessary implication: Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), [1993] 2 S.C.R. 53, at pp. 69-70; R. v. H. (E.F.); R. v. Rhingo (1997), 1997 CanLII 418 (ON CA), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256.

[28] The statutory rights of appeal for which the Criminal Code makes provision furnish no authority for re-opening appeals, whether heard and decided on the merits or otherwise. Nor does the rule-making authority of ss. 482 and 482.1. The power to make rules is limited to matters which are already within the jurisdiction of the court. Likewise, the referential incorporation by s. 683(3) of the powers exercisable in civil appeals is of no service on this issue. Nor is it advanced as such by either party in this case: H. (E.F.); Rhingo, at pp. 97-100.

[29] A potential source of authority to permit re-opening inhabits the inherent or ancillary jurisdiction of a court, including a statutory court like the court of appeal, to control its own process. This jurisdiction includes the authority to regulate the manner in which the parties exercise any statutory right of appeal: H. (E.F.); Rhingo, at pp. 100-101.

[30] The jurisdiction of an appellate court to re-open an appeal has been authoritatively recognized. The scope of that authority, however, less clearly marked out.

[31] In H. (E.F.); Rhingo, two unrelated parties sought to have their appeals re-opened. Each appeal had been argued on the merits and decided. Formal orders dismissing each appeal had been issued. This court concluded that the jurisdiction to re-open an appeal was limited to appeals that had not been heard on their merits. The jurisdiction did not extend to permit re-opening of appeals that had been heard and decided on the merits: H. (E.F.); Rhingo, at pp. 106-107.

[32] In a footnote, the court in H. (E.F.); Rhingo, appears to accept that a court is not functus officio when it delivers its reasons for decision, but only when the order recording the court’s disposition has been entered: H. (E.F.); Rhingo, at footnote 10, p. 106. In other words, for the purpose of determining whether a court is functus officio, there is a difference between giving reasons for decision and entering the formal order reflecting the disposition of the appeal: R. v. Hummel, 2003 YKCA 4, 175 CCC (3d) 1 at para. 11, leave to appeal refused, [2002] S.C.C.A. No. 434.

[33] In courts that have considered the issue, the prevailing view is that the defining event for the purposes of the application of the doctrine of functus officio is the entry of the order disposing of the appeal not the giving or release of reasons for the decision: Hummel, at para. 11; H. (E.F.); Rhingo, footnote 10 at p. 106; R. v. Chudley, 2015 BCCA 391, 125 W.C.B. (2d) 129 at para. 9; R. v. Villeda, 2010 ABCA 410, 44 Alta. L.R. (5th) 300 at para. 7; R. v. Moura (2003), 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at para. 20.

[34] Where an appellate court hears an appeal on its merits and issues reasons for its dismissal of that appeal, but does not issue a formal order recording that dismissal, the court is not functus officio. Thus, functus officio does not erect a bar to re-opening. The authorities support the existence of a discretion in those circumstances to permit re-opening: Hummel, at paras. 3, 14-15; Chudley, at para. 7; R. v. Chow, 2003 BCCA 248, 57 W.C.B. (2d) 297 at para. 10; R. v. Blaker (1983), 1983 CanLII 308 (BC CA), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also, R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 29.

[35] The circumstances in which a court may exercise its authority to permit re-opening are closely circumscribed. The core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening. This requires a searching evaluation of the importance of the issues the applicant seeks to raise on the re-opening: Chow, at para. 11; Villeda, at para. 11.

[36] Among the relevant factors a court might consider in deciding whether to permit re-opening of an appeal previously argued and decided on the merits are:

i. the principle of finality;

ii. the interests of justice including finality and the risk of a miscarriage of justice;

iii. whether the applicant has established a clear and compelling case to justify a re-opening;

iv. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and

v. whether the error alleged concerns a significant aspect of the case.

See, Hummel, at para. 24; Chow, at paras. 9, 11.

[37] What emerges from the authorities is a rule prohibiting re-opening of an appeal when the court is functus officio. The court is functus officio when:

i. the appeal has been argued and decided on the merits;

ii. the court has issued reasons for its decision; and

iii. a formal order has been entered or issued recording the disposition of the appeal.

This principle is consistent with the Ontario cases of H. (E.F.); Rhingo; Moura; R. v. Dennis (2005), 2005 CanLII 44168 (ON CA), 208 O.A.C. 8 (C.A.); and R. v. Perkins, 2017 ONCA 152, 347 C.C.C. (3d) 58.

[38] What remains less clear in this province is whether, absent a formal order recording the disposition of an appeal, the court has jurisdiction to permit re-opening where the appeal has been argued and decided on the merits.

The Principles Applied

[39] As I will explain, I would not quash the application to re-open the appeal on the basis that we lack jurisdiction to do so because the appeal has been heard and decided on the merits.

[40] My analysis is grounded on the fundamental principle that a court has a limited power to reconsider its judgment disposing of a case as long as the court is not functus officio: Adams, at para. 29. A court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered: Adams, at para. 29.

[41] Consistent with this fundamental principle that a court is not functus until a formal judgment has been drawn up and entered, courts in other provinces and territories have held that a court of appeal has authority to permit re-opening of an appeal heard and decided on the merits until the formal order has been issued: Hummel, at paras. 3, 15; Chow, at paras. 10-11; Villeda, at paras. 6-8. The source of the authority to re-open is the inherent jurisdiction of the court, even a statutory court like a court of appeal, to control its own process and to prevent an injustice: Hummel, at para. 14.

[42] At first light, it may appear that my conclusion is at odds with some of the language in the prior decisions of this Court in H. (E.F.); Rhingo, and more recently in Perkins. In my view, neither is controlling in the circumstances of this case.

[43] In H. (E.F.); Rhingo, the order dismissing the appeals had been entered. The court was functus officio as a result. The all-encompassing statement that re-opening was confined to appeals not argued on the merits is contradicted by footnote 10, in which the court endorsed the view that a panel is not functus when the judgment is released, but only upon formal entry of the order. Further, the all-encompassing statement is inconsistent with the earlier decision of the Supreme Court of Canada in Adams, to which reference does not appear to have been made. Finally, the court in H. (E.F.); Rhingo did not have the benefit, unlike this court, of the later authorities from other courts of appeal considering the issues raised here.

[44] In Perkins, there are unqualified statements that there is no jurisdiction to re-open an appeal heard on the merits: for example, at paras. 11-13. Yet in para. 12, the court refers to the bar against re-opening operating when “all appeal rights have been exhausted and the final court is functus officio ". In support of its unqualified statement that "there is no jurisdiction to re-open an appeal heard on its merits", the court cites, R. v. Purdy, 2010 BCCA 413, 261 C.C.C. (3d) 33, leave to appeal refused, [2011] S.C.C.A No. 431; R. v. Widdifield, 2016 BCCA 412, 134 W.C.B. (2d) 9, leave to appeal refused, 2017 CarswellBC 978; and R. v. Akinbiyi, 2008 SKCA 92, 78 W.C.B. (2d) 694. Purdy at para. 30 makes it clear that the bar only applies “if the appeal has been decided on its merits and the order entered" [Emphasis mine.] Widdifield and Akinbiyi are distinguishable as, in those cases, a formal order had already been entered.

[45] In the result, I am satisfied that the jurisdiction to permit re-opening an appeal heard and determined on the merits remains until the order reflecting the disposition has been entered. In other words, the jurisdiction remains until the court is functus officio.

Ground #2: The “interests of justice” Test

[46] The Crown advances an alternative argument in support of its motion to quash the application to re-open the hearing. This submission focuses on the interests of justice which, the Crown says, warrant the order it seeks.

[47] A brief reference to the circumstances in which the application to re-open arises provides a helpful frame for the submissions of counsel and an assessment of their merits.

The Evidentiary Foundation

[48] If permitted to pursue his application, the respondent seeks to introduce the evidence of his former co-accused Hamilton, together with his own evidence. The essence of the proposed evidence is that the respondent was not present at the scene of the home invasion and did not participate in it. Hamilton acknowledges that he was in the immediate vicinity of the home but says that he did not enter it or participate in what occurred inside.

The Positions of the Parties

[49] The Crown contends that the discretion to permit re-opening is limited to cases in which it is warranted by the interests of justice. The interests of justice require balancing the interest of an accused in having an adjudication of their potential guilt determined on the basis of all available evidence against the public interest in finality and the integrity of the criminal justice process. In addition, since the application to re-open is grounded on the proposed introduction of fresh or new evidence, the court must consider, and the respondent meet the requirements for the introduction of fresh evidence on appeal. Those requirements – admissibility, cogency, and due diligence – can be assessed in a preliminary way on this motion to quash.

[50] In this case, the Crown continues, the interests of justice favour quashing the application. To permit re-opening would be to allow the respondent to revisit and reverse tactical decisions made by very experienced counsel on the basis of evidence that is patently self-serving and incredible. Although the proposed evidence would be admissible if tendered at trial, it beggars belief, thus lacking cogency. It is both riddled with implausibilities and of dubious origin.

[51] The respondent says that the interests of justice warrant a hearing of his application to re-open. Two persons attested to the respondent's innocence of the offence of which he stands convicted. A hearing is required to avoid a potential miscarriage of justice.

[52] The respondent says that scepticism about the legitimacy of the affiants’ claims warrants investigation by the Crown and searching cross-examination on the affidavits. This will provide a fulsome record for review and a determination on the merits. That the respondent is unaware of his precise whereabouts at the time of the home invasion is scarcely remarkable. The extraordinary, for example, involvement in a home invasion in which a person was killed, is memorable. The mundane, another day indistinguishable from the next, is not.

[53] This is not a case, the respondent continues, in which the affiants have nothing to lose by swearing false affidavits. Neither is serving a life sentence. A conviction of perjury or obstructing justice would attract a substantial penitentiary sentence delaying their release from custody for a considerable time. Nor is the absence of an affidavit from trial counsel of any consequence since it could add nothing of importance on the issues to be decided.

The Governing Principles

[54] The basis upon which the respondent seeks to have the appeal re-opened is to permit the introduction of new evidence. That evidence, if believed, tends to show that the respondent was not a party to the offence of which he stands convicted.

[55] The principles which control our decision in these circumstances fall into two discrete groups. Some are concerned with the standard to engage the discretion to permit re-opening. Others have to do with the basis upon which new evidence may be received on appeal. Common to each discretionary exercise is “the interests of justice", a phrase of frequent incidence in statutory provisions and one that, like a chameleon, takes its colour from its surroundings.

The Decision to Permit Re-Opening

[56] The re-opening decision requires consideration of all the circumstances. Two competing principles are at work. The need for finality in criminal litigation favours a restrictive approach. Prevention of potential miscarriages of justice, on the other hand, supports a more expansive approach: Hummel, at para. 17. The “interests of justice” includes both the interest of the accused in having their guilt adjudicated on the basis of all the available evidence, and that of the state in the integrity of the criminal justice process including its finality and order: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401 at para. 200, leave to appeal refused, [2016] S.C.C.A. No. 513.

[57] The “interests of justice" standard to permit re-opening of an appeal heard and determined on its merits requires a case-specific examination of all the circumstances. An all-inclusive list of relevant factors eludes composition, but among those a court might consider are these:

i. the principle of finality;

ii. the risk of a miscarriage of justice;

iii. the cogency of the case for re-opening;

iv. the nature of the error or omission alleged to require re-opening; and

v. the significance of the error to the disposition of the appeal.

See, Hummel, at para. 24; Chow, at para. 9.

The Admissibility of Fresh Evidence

[58] Under s. 683(1)(d) of the Criminal Code, a court of appeal may receive the evidence of any witness if the court considers it in the interests of justice to do so. Where the proposed new evidence relates to an issue of fact contested at trial, in this case, the respondent's participation in the events charged, three factors govern the decision:

i. admissibility;

ii. cogency; and

iii. due diligence.

See, Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Manasseri, at para. 203.

[59] Admissibility and cogency are conditions precedent which a proponent must meet before the proposed new evidence may be received. The new evidence must be admissible under the governing rules of evidence. To satisfy the cogency requirement, the new evidence must be:

i. relevant, in that it bears upon a decisive or potentially decisive issue at trial;

ii. credible, in that it is reasonably capable of belief; and

iii. probative, such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See, Truscott, at para. 99; Manasseri, at para. 205.

[60] Due diligence is not a precondition to the reception of new evidence tendered on appeal. Rather, it exists to ensure finality and order. It only enters the analysis when the admissibility and cogency conditions have been satisfied. The due diligence inquiry requires the court to consider why the evidence was not adduced at trial. It yields where its rigid application might lead to a miscarriage of justice but remains an important factor in the totality of the circumstances in each case: R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 64; Manasseri, at paras. 206, 219-222.

The Principles Applied

[61] I would not quash the respondent’s application for re-opening on the basis that it is not in the interests of justice that it be permitted to proceed.

[62] As I have already concluded, the respondent's application for re-opening is not barred by the application of the doctrine of functus officio. This court has the authority to permit the appeal previously heard, determined, and dismissed to be re-opened if it is in the interests of justice to do so. In this case, whether re-opening may be permitted, for all practical purposes, depends upon whether the court decides to receive the new evidence the respondent tenders for admission.

[63] In principle, it should be open to the opposing party to quash an application to re-open an appeal heard, decided, and dismissed on the merits where the application to re-open has no reasonable prospect of success. A similar authority exists at the trial level. For example, where the presiding judge may dismiss any pre-trial or other application on the basis of the materials filed, without further hearing or inquiry, if satisfied that there is no reasonable prospect that the application could succeed. See, r. 34.02 of the Criminal Proceedings Rules of the Superior Court of Justice.

[64] In this case, the motion to quash seeks to abrogate the re-opening of an appeal in which evidence from two persons will be tendered purporting to show that the respondent did not participate in the offence of which he stands convicted. The proposed evidence relates to the single controverted issue at trial – the identity of the respondent as one of the persons responsible for the home invasion.

[65] The re-opening application is inextricably bound up with the tender of new evidence for reception on the rehearing. The determination of whether new evidence will be received is made by the panel hearing the re-opening application. That panel determines whether the interests of justice warrant reception of that evidence.

[66] In this case, there is no doubt that the new evidence is admissible under the governing rules of evidence. If believed, it tends to show that the respondent was not present and did not participate in the home invasion charged in the indictment. The cogency of the new evidence is controversial, especially in light of the expert evidence about DNA identified at the scene of the home invasion. Also controversial is the influence of the due diligence factor.

[67] As we have already seen, whether new evidence proposed for reception will be admitted is an issue to be decided by the panel before whom the evidence is tendered. Further, this determination is made on the basis of a mature record, including cross-examination of the affiants and, in many instances, other evidence.

[68] To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success. On this issue, the Crown fails, as it did in advancing a similar argument in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, leave to appeal refused, [2018] S.C.C.A. No. 258.

Disposition

[69] For these reasons, I would dismiss this application. The application for a re-opening of the appeal is not barred by the doctrine of functus officio. Nor is quashing it in the interests of justice on the ground that it lacks any reasonable prospect of success.

[70] The application to re-open the respondent's appeal may proceed in accordance with the schedule to be set by an appeal management judge.

Released: “JS” December 1, 2020

“David Watt J.A.”

“I agree. Janet Simmons J.A.”

“I agree. B.W. Miller J.A.”