Court of Appeal for Ontario

Citation: R. v. Hepfner, 2023 ONCA 581

Date: 20230907

Docket: M54323 (COA-22-OM-0087)

Before: Hoy, Thorburn and Favreau JJ.A.

Between

His Majesty the King

Responding Party

and

Marcos Hepfner

Moving Party

Counsel:

Adam Little, for the moving party

Davin Michael Garg and James V. Palangio, for the responding party

Heard: in writing

REASONS FOR DECISION

[1] The moving party was convicted of impaired driving. He was sentenced to a fine and a driving prohibition. His appeal to the Summary Conviction Appeal Court was dismissed and he brought an application for leave to appeal and for a stay of the driving prohibition (the “Application”) to this court.

[2] On March 20, 2023, this panel granted the moving party leave to appeal on one of the four grounds of appeal advanced in the Application and stayed the driving prohibition imposed by the trial judge pending determination of the appeal.

[3] The moving party now applies to this panel for an order re-opening the Application on the ground that due to an administrative error the panel was not provided with all the material filed in relation to the Application. A formal order has not been entered and the responding party, the Crown, concedes that the court has jurisdiction to hear this motion to re-open the Application.

[4] We are not persuaded that it is in the interests of justice to re-open the Application.

[5] As counsel for the moving party explains, he also filed applications for leave to appeal from the Summary Conviction Appeal Court on two other impaired driving matters: R. v. Kim (M53464) and R. v. Raswan (M53276). Stays of driving prohibitions were not sought in those applications. It appears that counsel had requested court staff to forward all three applications to a single judge, together with a motion seeking directions that the applications could be heard together, by a single judge (rather than a panel) and indicated some urgency to the applications. However, the motion for directions was overlooked and consequently not filed.

[6] The Application was directed to this panel, which promptly heard and determined it.

[7] The essence of the moving party’s argument is that the Application and the Kim and Raswan applications involve overlapping issues, and, on some of the grounds of appeal advanced by the moving party he indicated in his factum that he relied on arguments in the Kim and Raswan factums.

[8] The moving party appears to be under the misapprehension that the panel did not review the arguments in the Kim and Raswan factums relied on in his factum in deciding the Application. That was not the case. While not initially delivered to the panel by court staff, the panel obtained and reviewed those factums before determining the Application.

[9] The circumstances in which a court may permit the re-opening of an appeal are closely circumscribed: R. v. Smithen-Davis, 2022 ONCA 832, 421 C.C.C. (3d) 56, at para. 31. The moving party has not established a clear and compelling case that a miscarriage of justice will likely occur absent a re-opening. Finality is an important principle and prevails in this case.

[10] Accordingly, this motion is dismissed.

“Alexandra Hoy J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”