



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



R. v. Schwartz,









2009 BCCA 44




Date: 20090206

Docket: CA026741

Between:

Regina

Respondent

And

Douglas Louie Schwartz

Appellant

BAN ON DISCLOSURE

Pursuant to s. 486(3) [now s. 486.4)
C.C.C.
]




Before:



The Honourable Mr. Justice
  Low





The Honourable Madam
  Justice Kirkpatrick





The Honourable Mr. Justice
  Groberman









In person



Appellant





A. Budlovsky, Q.C.



Counsel for the Respondent





Place and Date of Hearing:



Vancouver
, British Columbia






21 January 2009





Place and Date of Judgment:



Vancouver
, British Columbia






6 February 2009









Written Reasons by
:





The Honourable Mr. Justice
  Low





Concurred in by:





The Honourable Madam
  Justice Kirkpatrick
The Honourable Mr. Justice Groberman




Reasons for Judgment
of the Honourable Mr. Justice Low:

[1]

Mr. Schwartz is serving an
indeterminate sentence after being declared a dangerous offender on 12 January
2000.  The designation and the sentence were upheld by this court following a
hearing at which Mr. Schwartz was represented by counsel.  He now brings an
application to reopen his appeal.  The application originally came on before
Madam Justice Ryan in chambers.  She held that, to the extent this
court has the power to rehear a criminal matter, the decision to do so can be
made only by a division of the court.

[2]

Mr. Schwartz was convicted on 24
January 1997 of sexual assault, the predicate offence for the subsequent
dangerous offender proceedings.  His appeal from that conviction was dismissed
as abandoned three years later.  This court heard his appeal from the dangerous
offender designation on 24 October 2002 and gave written reasons dismissing it
on 18 November 2003:  see 2002 BCCA 616.

[3]

On 4 March 2004, the Supreme Court
of Canada dismissed an application brought by Mr. Schwartz for leave to appeal
the order of this court.

[4]

Mr. Schwartz subsequently brought
an application for
habeas corpus
in the Supreme Court of British
Columbia.  On 14 September 2004, Ross J. made an order dismissing that
application.  Mr. Schwartz did not appeal that order.

[5]

The next step he took was to seek
reconsideration in the Supreme Court of Canada of his leave application.  On 17
August 2006 the deputy registrar of that court ruled that his application did
not meet the required standard.

[6]

This court can reopen a criminal
appeal in very limited circumstances.

[7]

In
R. v. Hummel
,
2003 YKCA 4, [2003] Y.J. No. 36 the court held that there is a discretionary
power to reopen after the court has rendered judgment so long as the formal
order flowing from the judgment has not been entered.

[8]

In the very recent case of
R.
v. Henry
, 2009 BCCA 12, in a highly unusual situation, the court
reopened the appeal for consideration on its merits.  That was a conviction
appeal that had been dismissed as abandoned many years earlier.  The appeal had
not been heard on its merits.

[9]

Mr. Schwartz has exhausted his
remedies in this court.  The order dismissing his appeal of the dangerous
offender designation has long since been entered.  The court made that order
after a full hearing on the merits.  What Mr. Schwartz proposes to do now
essentially is to re-argue the issues canvassed on his appeal.  He contends
that the decisions of this court in
R. v. Johnson
(2001), 158
C.C.C. (3rd) 155 and
R. v. Edgar
(2001), 158 C.C.C. (3rd) 212, were
applied and that he should have the opportunity to argue their effect as later
modified by the Supreme Court of Canada on appeal of them to that court. 
However, those decisions in the Supreme Court of Canada were handed down by
that court before it heard Mr. Schwartzs leave application and he was still
denied leave.  In addition, his argument did not meet the test for
reconsideration of his leave application.

[10]

In any event, even if Mr. Schwartz
had not applied for leave to appeal to the Supreme Court of Canada, this court
would have no power to reopen his appeal.

[11]

In a case in which a convicted
person has exhausted all his appeal remedies and there is an argument that
there has been a miscarriage of justice, that person can apply to the Minister
of Justice under s. 696.1 of the
Criminal Code of Canada
for a
review of his case.  That section applies to a dangerous offender finding as
well as to a conviction.  If there is any merit to Mr. Schwartzs contention,
and I do not say there is, this is the only way he can now be heard.  In the
circumstances, this court has no power to rehear his appeal of the order
designating him a dangerous offender.

[12]

I would dismiss the application.

The Honourable
Mr. Justice Low

I agree:

The Honourable Madam Justice Kirkpatrick

I agree:

The Honourable Mr. Justice Groberman


