



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smithen-Davis, 2020 ONCA 834

DATE: 20201218

DOCKET: M52031 (C65661)

Brown J.A.
    (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Haldane
    Smithen-Davis

Applicant (Appellant)

Alan D. Gold and Laura Metcalfe
, for the applicant

Samuel Greene
,
    for the respondent

Heard: December 11, 2020 by video conference

REASONS
    FOR DECISION

[1]

The applicant, Haldane Smithen-Davis, applies
    for bail pending appeal pursuant to s. 679 of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

On December 11, 2020, I granted bail on terms
    agreed to by the parties. Given the unusual procedural circumstances that gave
    rise to this application, I received submissions from the parties about the
    jurisdiction of a single judge of an appeal court to grant bail. This brief
    endorsement explains why I was satisfied that such jurisdiction exists.

[3]

The applicant and his co-accused, Jason
    Hamilton, were each charged with one count of break and enter with intent,
    arising out of a home invasion. Both were convicted and sentenced to
    imprisonment for a term of nine years. Both appealed. On October 24, 2019, this
    court dismissed both appeals.

[4]

Earlier this year, the applicant applied to the
    same panel to re-open his appeal against conviction. He seeks to adduce
    evidence that, if believed, denies his participation in the home invasion.

[5]

The Crown sought to quash the application to
    re-open. By reasons released December 1, 2020, the panel dismissed the Crowns
    application and has permitted the applicant to proceed with his application to
    re-open his appeal against conviction: 2020 ONCA 759.

[6]

This application for bail pending appeal was
    then brought before me. Section 679(1)(a) of the
Criminal Code
states:

A judge of the court of appeal may,
    in accordance with this section, release an appellant from custody pending the
    determination of this appeal if,

(a) in the case of an appeal to
    the court of appeal against conviction, the appellant has given notice of
    appeal or, where leave is required, notice of his application for leave to
    appeal pursuant to section 678.

[7]

Section 678(1) states:

An appellant who proposes to appeal
    to the court of appeal or to obtain the leave of that court to appeal shall
    give notice of appeal or notice of his application for leave to appeal in such
    manner and within such period as may be directed by rules of court.

[8]

In its reasons dismissing the Crowns
    application to quash, the panel stated that a court has a limited power to
    reconsider its judgment disposing of a case as long as the court is not
functus
    officio
. A court continues to be seized of the case and is not
functus
until the formal judgment has been drawn up and entered: at para. 40. Since no
    formal order had been issued or entered dismissing the applicants appeal, the
    panel concluded that it had the jurisdiction to permit re-opening his appeal:
    at para. 45. It directed that the application to re-open the respondents appeal
    could continue: at para. 70.

[9]

In the circumstances of the present case, this
    court retains the jurisdiction to consider and modify its prior judgment
    regarding the applicants conviction. Pending that determination, the court
    also continues to have jurisdiction under s. 679(1)(a) of the
Criminal Code
to entertain the applicants request for bail. As a practical matter, the
    applicants original notice of appeal remains operative, with the result that
    the applicants request for bail falls within the language of s. 679(1)(a) of
    the
Criminal Code
.

[10]

On that basis, I was
    satisfied that I possessed the jurisdiction to consider the applicants bail
    request, which I granted.

David Brown J.A.


