



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Howdle v. Mission Medium Institution (Warden),









2021 BCCA 44




Date: 20210202

Docket: CA45781

Between:

Clifford Barry
Howdle

Appellant

(Petitioner)

And

The Warden of
Mission Medium Institution

Respondent

(Respondent)




Before:



The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Abrioux




Supplementary Reasons
to
Howdle v. Mission Medium Institution (Warden)
,
2020 BCCA 334, Vancouver CA45781.




Counsel for the Appellant, on September 14, 2020:



N. Gilewicz





The Appellant, appearing in person, for written
  submissions only:



C.B. Howdle





Counsel for the Respondent:



C. De Los Reyes





Place and Date of Hearing:



Vancouver, British
  Columbia

September 14, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

November
  27, 2020





Written Submissions Received:



January 7,
  2021; January 12, 2021;
January 18, 2021





Date of Supplementary
  Judgment:



February
  2, 2021









Supplementary Reasons of the Court








Summary:

Application to reopen appeal
dismissed.

Supplementary Reasons for
Judgment of the Court:

[1]

Mr. Howdle applies to reopen his appeal. The appeal, which engaged
issues arising out of his application for
habeas corpus
, was dismissed
by this division in reasons indexed as 2020 BCCA 334.

[2]

The order dismissing the appeal has not yet been entered. The Court has
the jurisdiction to reopen the appeal if the test for doing so is met. That
jurisdiction is rooted in the courts ability to control its own process to
prevent an injustice. It is, however, an extraordinary power to be exercised
rarely and only where it is necessary to do so in the interests of justice. The
onus on the applicant is to demonstrate a clear and compelling case that a
miscarriage of justice will likely occur if the appeal is not reopened: see,
R.
v. Chow
, 2003 BCCA 248 at para. 11. The factors relevant to
reopening an appeal were discussed in
R. v. Hummel
, 2003 YKCA 4
at para. 24:

1. Finality is a primary but not always determinative factor.

2. The interests of justice include finality and the risk of
a miscarriage of justice.

3. The applicant must make out a clear and compelling case to
justify a re‑opening.

4. If the case has been heard on the merits the applicant
must show that the court overlooked or misapprehended the evidence or an
argument.

5. The error must go to a
significant aspect of the case.

[3]

The jurisdiction to reopen an appeal is not exercised to permit a party
to re‑argue the appeal or to argue issues that ought to have been dealt
with on appeal, but were not.

[4]

We have reviewed the written materials submitted by the parties. We are
satisfied that this matter may be disposed of on the basis of those materials
and that it is unnecessary to hear oral argument.

[5]

Mr. Howdle, who represents himself on this application, alleges
that the reasons for judgment dismissing his appeal demonstrate a flagrant
injustice and an abuse of authority. He contends that the Court exceeded its
jurisdiction, was biased, predetermined the outcome, and that the justices
involved in the decision were covering for and protecting the Correctional
Service of Canada. He also suggests that the Court relied on case law that was
not open and transparent and should have been considered moot and invalid.

[6]

In so far as Mr. Howdles argument touches on the substance of the
appeal, we consider that the points he raises amount to a suggestion that the
Court misapprehended the evidence and the significance of certain documents in
the record. We see no merit in this argument and, in our view, Mr. Howdle
is simply attempting to reargue issues on the appeal.

[7]

In our view, Mr. Howdles application to reopen the appeal is both
without merit and is frivolous. In the circumstances, we dispense with his
signature to endorse the order dismissing the appeal.

The
Honourable Mr. Justice Harris

The
Honourable Madam Justice Dickson

The Honourable
Mr. Justice Abrioux


