Court File and Parties

Court of Appeal for Ontario Date: 20240514 Docket: COA-23-CR-1105

Before: Trotter, Harvison Young and Copeland JJ.A.

Between: His Majesty the King Respondent

And: Nicholas Doering Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Jamie Klukach and Samuel Greene, for the respondent

Heard: April 19, 2024

On appeal from the conviction entered on October 6, 2023 by Justice Renee M. Pomerance of the Superior Court of Justice, with reasons reported at 2023 ONSC 5603.

By the Court:

[1] The appellant appeals his conviction for failing to provide the necessaries of life, contrary to s. 215 of the Criminal Code, R.S.C. 1985, c. C-46. As explained below, this is the appellant’s second appeal from the same decision of the trial judge who found him guilty of this offence. The appellant attempts to raise a new ground that was not raised on his first appeal. The appeal was dismissed from the bench with reasons to follow. These are our reasons.

A. Background

[2] On November 1, 2019, after a judge alone trial, the appellant was found guilty of criminal negligence causing the death of Debra Chrisjohn (Criminal Code, s. 220) and failing to provide Ms. Chrisjohn with the necessaries of life (s. 215): R. v. Doering, 2019 ONSC 6360. The appellant was a police officer at the time; Ms. Chrisjohn was a woman in his custody.

[3] The appellant was sentenced to 12 months’ imprisonment for criminal negligence causing death; the failing to provide the necessaries count was conditionally stayed, pursuant to Kienapple v. R, [1975] 1 S.C.R. 729: see R. v. Doering, 2020 ONSC 5618.

[4] On July 28, 2022, this court allowed the appeal on the criminal negligence causing death count, quashed the conviction, and entered an acquittal: R. v. Doering, 2022 ONCA 559, 162 O.R. (3d) 161. With respect to the failing to provide the necessaries count, Doherty J.A. wrote, at paras. 147-148:

As the appellant had a full opportunity to challenge the Crown’s case on that charge and the trial judge’s reasons for finding the appellant guilty on that charge are unassailable, I would maintain the finding of guilt on that charge.

The sentence imposed on the criminal negligence charge is set aside. The appellant must be sentenced on the failure to provide necessaries charge. Counsel should arrange a conference call with me to discuss matters relating to sentencing, including the appropriate forum in which the sentencing should occur. [Emphasis added.]

[5] On August 6, 2022, the appellant copied the respondent Crown on an e-mail with a draft Notice of Application for Leave to Appeal to the Supreme Court of Canada on the failing to provide the necessaries count.

[6] A conference call was conducted by Doherty J.A. on August 15, 2022. This resulted in Reasons for Decision, dated August 16, 2022 (R. v. Doering, 2022 ONCA 593), which read:

Counsel for the appellant and the Crown agree that the matter should be remitted to the trial judge, Pomerance J., for sentencing on the failure to provide necessaries charge. So ordered. [Emphasis added.]

[7] The order of the court was entered the same day. The operative part of it reads:

THIS COURT ORDERS that the conviction appeal is allowed. The criminal negligence causing death charge is quashed and an acquittal is entered. The conditional stay on failure to provide the necessaries of life, is set aside, and the finding of guilt is maintained. The sentence imposed on the criminal negligence charge is set aside. The appellant must be sentenced on the failure to provide the necessaries charge. [Emphasis added.]

[8] On August 17, 2022, the appellant advised the Crown that he would not pursue his leave application in the Supreme Court of Canada. Meanwhile, the Crown sought leave to appeal to the Supreme Court of Canada to challenge the appellant’s acquittal on the criminal negligence count. Leave to appeal was refused on October 13, 2022: 2022 CarswellOnt 16050 (S.C.C.).

[9] The case eventually returned to the trial judge for sentencing, in accordance with this court’s Reasons for Decision and order. But the appellant had other ideas. He applied to re-open the case to present further submissions on why he should be acquitted on the failing to provide the necessaries count. He claimed that he was entitled to do so because, in remitting the case back to the Superior Court for sentencing, this court had only set aside the conditional stay that was imposed in accordance with Kienapple. It did not enter a conviction under s.686(3)(b) of the Criminal Code. He submitted that, in these circumstances, the trial judge retained the discretion not to enter a conviction on this count, and a corresponding discretion to re-open the case.

[10] The trial judge determined that she had no jurisdiction to re-open the case: at paras. 20-27. She entered a conviction on the failing to provide the necessaries count and sentenced the appellant to an 18-month conditional sentence order, in addition to other ancillary orders.

B. The appellant’s second appeal

(1) The Positions of the Parties

[11] The appellant submits that he is entitled to appeal to this court from the conviction entered by Pomerance J. He contends that the trial judge erred in not re-opening the case to allow him to present new legal arguments on his conviction for failing to provide the necessaries of life. He does not challenge the sentence imposed by the trial judge.

[12] The Crown submits that the appeal should be quashed for want of jurisdiction or otherwise dismissed. It contends that the appeal of the trial judge’s refusal to re-open the case does not fit within the parameters of the rights of appeal in s. 675 of the Criminal Code. The Crown also submits that the attempt to re-open the appeal before the trial judge was a collateral attack on the earlier decision of this court, which affirmed his guilt on the failure to provide the necessaries charge. It further submits that the appeal is barred by doctrine of res judicata and that this court is functus officio.

(2) Discussion

[13] We agree with the trial judge’s reasons for concluding that she had no jurisdiction to re-open the proceedings. As she noted, she was being asked to sit in review of this court’s reasons for dismissing the conviction appeal on the failure to provide the necessaries count: at para. 25.

[14] Moreover, it is crystal clear from both of this court’s decisions referenced above, and the final order, that the case was being remitted to the trial judge for sentencing purposes only. This court could have exercised its jurisdiction to impose the appropriate sentence on the failing to provide the necessaries count: see Criminal Code, s. 686(3)(b). Instead, it gave effect to the wishes of both parties that sentencing take place in the trial court.

[15] It is not necessary to ascertain the reasons for the parties’ choice of forum. However, by returning the case to the trial court for sentencing, it allowed for a subsequent appeal to this court, by either party, from the sentence imposed.

[16] The appellant places great emphasis on the fact that this court set aside the conditional stay but did not enter a conviction. He submits that, by doing so, this court gave the trial judge the discretion not to enter a conviction on the failing to provide the necessaries of life count.

[17] This court may have chosen to proceed in this manner in order to preserve for the trial judge the full range of sentencing options, including a discharge under s. 730 of the Criminal Code. However, any ambiguity on why this manner was chosen is inconsequential. This court clearly directed the trial judge to sentence the appellant. Unless she imposed a discharge, which she did not, she was required to enter a conviction, which she did: R v. Boon, 2020 ONCA 154, 149 O.R. (3d) 513, at para. 4.

[18] We agree that the appeal technically comes within the ambit of s. 675(1)(a) of the Criminal Code, which provides that “a person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal…against his conviction”. The trial judge’s decision to refuse to re-open the case is absorbed in the conviction she subsequently entered on the failing to provide the necessaries count.

[19] Nonetheless, this appeal must be dismissed. This court has already decided this appeal fully on its merits. It affirmed the trial judge’s finding of guilt on the failing to provide the necessaries count in unequivocal language, characterizing her reasons as “unassailable.” After determining the parties’ preferred choice of forum for sentencing purposes only, the court issued its final order. This step having been taken, any attempt by the appellant to re-open his appeal would have failed, because this court was functus officio in the circumstances: R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at para. 33.

[20] In an attempt to circumvent this jurisdictional barrier, the appellant tried to re-open his case before the trial judge. The application to re-open, and this appeal, are impermissible collateral attacks on this court’s order affirming the trial judge’s findings of guilt on the failing to provide the necessaries count, and this court’s order that the appellant be sentenced for this offence: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 21.

[21] The appellant essentially asks this panel to sit in review of the panel that heard the original appeal. We decline to do so. A challenge to the appellant’s guilt on the failing to provide the necessaries count is res judicata.

[22] As the trial judge said in her reasons, the obvious route to challenge the trial judge’s findings on the failing to provide the necessaries count, and this court’s affirmation of those findings, was by way of an application for leave to appeal to the Supreme Court of Canada: R. v. H. (E.) (1997), 33 O.R. (3d) 202 (C.A.), leave to appeal refused, 107 O.A.C. 400 (note) (S.C.C.). The appellant took the first step towards that goal by sharing a draft application for leave to appeal, one that raised similar arguments that were newly advanced before the trial judge. However, he changed his mind. He explained to the trial judge that it would have been difficult to obtain leave to appeal in the circumstances. While that may well be true, it does not create any greater jurisdiction in this court to hear his appeal – again.

[23] As Charron J.A. (as she then was) said in H. (E.), at p. 214: “The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.” See also R. v. Scott, 2023 ONCA 820, 432 C.C.C. (3d) 384, at para. 31.

[24] The principle of finality must prevail in the circumstances. As far as the Ontario courts are concerned, any issue about the appellant’s guilt, conviction, or sentence on the charge of failing to provide the necessaries of life to Debra Chrisjohn is at an end.

C. Disposition

[25] The appeal is dismissed.

Released: May 14, 2024 “G.T.T.” “Gary Trotter J.A.” “A. Harvison Young J.A.” “J. Copeland J.A.”