Court of Appeal for Ontario

CITATION: R. v. Smithen-Davis, 2020 ONCA 834

DATE: 2020-12-18

DOCKET: M52031 (C65661)

BEFORE: Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Haldane Smithen-Davis

Applicant (Appellant)

COUNSEL:

Alan D. Gold and Laura Metcalfe, for the applicant

Samuel Greene, for the respondent

HEARD: December 11, 2020 by video conference

REASONS FOR DECISION

[1] The applicant, Haldane Smithen-Davis, applies for bail pending appeal pursuant to s. 679 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] On December 11, 2020, I granted bail on terms agreed to by the parties. Given the unusual procedural circumstances that gave rise to this application, I received submissions from the parties about the jurisdiction of a single judge of an appeal court to grant bail. This brief endorsement explains why I was satisfied that such jurisdiction exists.

[3] The applicant and his co-accused, Jason Hamilton, were each charged with one count of break and enter with intent, arising out of a home invasion. Both were convicted and sentenced to imprisonment for a term of nine years. Both appealed. On October 24, 2019, this court dismissed both appeals.

[4] Earlier this year, the applicant applied to the same panel to re-open his appeal against conviction. He seeks to adduce evidence that, if believed, denies his participation in the home invasion.

[5] The Crown sought to quash the application to re-open. By reasons released December 1, 2020, the panel dismissed the Crown’s application and has permitted the applicant to proceed with his application to re-open his appeal against conviction: 2020 ONCA 759.

[6] This application for bail pending appeal was then brought before me. Section 679(1)(a) of the Criminal Code states:

A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of this appeal if,

(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678.

[7] Section 678(1) states:

An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.

[8] In its reasons dismissing the Crown’s application to quash, the panel stated that a court has a limited power to reconsider its judgment disposing of a case as long as the court is not functus officio. A court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered: at para. 40. Since no formal order had been issued or entered dismissing the applicant’s appeal, the panel concluded that it had the jurisdiction to permit re-opening his appeal: at para. 45. It directed that the application to re-open the respondent’s appeal could continue: at para. 70.

[9] In the circumstances of the present case, this court retains the jurisdiction to consider and modify its prior judgment regarding the applicant’s conviction. Pending that determination, the court also continues to have jurisdiction under s. 679(1)(a) of the Criminal Code to entertain the applicant’s request for bail. As a practical matter, the applicant’s original notice of appeal remains operative, with the result that the applicant’s request for bail falls within the language of s. 679(1)(a) of the Criminal Code.

[10] On that basis, I was satisfied that I possessed the jurisdiction to consider the applicant’s bail request, which I granted.

“David Brown J.A.”