



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 Registrars 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 respondents
    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] 2 S.C.R.
    53, at pp. 69-70;
R. v. H. (E.F.); R. v. Rhingo
(1997), 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 courts
    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), 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), 6 C.C.C. (3d) 385 (B.C. C.A.), at p. 387. See also,
R.
    v. Adams
, [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)
, 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), 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 respondents 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.


