



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Perkins, 2017 ONCA 152

DATE: 20170222

DOCKET: M47113 (C57985)

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Perkins

Appellant

(Applicant)

Jennifer Penman and Karen Heath, for the appellant/applicant

Christine Bartlett-Hughes, for the respondent

Heard: In writing

On application seeking leave to reopen sentence appeal
    dismissed on July 29, 2015, with reasons reported at 2015 ONCA 521.

BY THE COURT:

A.

Overview

[1]

The applicant seeks leave to reopen his sentence appeal in relation to
    his conviction for sexual assault, voyeurism and breach of probation x2
[1]
(the sexual assault/voyeurism conviction), which was heard and dismissed by
    this court on July 29, 2015:
R. v. Perkins
,
2015
    ONCA 521, 2015 CarswellOnt 10349
(Ont. C.A.). The applicant
    seeks to reopen the sentence appeal on these charges on the basis of a change
    in circumstances that occurred a year after the appeal was adjudicated on the
    merits. Specifically, the applicant was successful in having convictions for
    domestic assault and breach of probation x2 overturned in July 2016 (the
    domestic assault conviction):
R. v. Perkins
,
2016
    ONCA 588, 2016 CarswellOnt 12019
(Ont.
    C.A.).

[2]

The applicant argues that this court should find that it has
    jurisdiction to reopen his sentence appeal on the sexual assault/voyeurism
    conviction and that it is in the interests of justice to reopen his sentence
    appeal, based on the fresh evidence of his domestic assault conviction having
    been quashed. He argues that he should be credited a further eight months of
    pre-sentence custody toward his sentence on the sexual assault/voyeurism
    conviction, the portion of his pre-sentence custody which was used up on the
    domestic assault conviction. He further argues that the trial judge on the
    sexual assault/voyeurism case considered the domestic assault conviction as an
    aggravating factor in determining sentence on the sexual assault/voyeurism
    conviction and would have come to a different result, had the domestic assault
    conviction not been considered.

[3]

For the reasons set out below, we would dismiss the application to
    reopen the sentence appeal.

B.

Facts

[4]

The applicant was arrested for domestic assault and two counts of breach
    of probation on May 12, 2011 (the domestic assault charge). On June 8, 2011,
    while in custody, he was charged with sexual assault, voyeurism, choking with
    intent and two counts of breach of probation, in relation to a different
    complainant (the sexual assault/voyeurism charges). On August 23, 2011, the
    applicant was convicted of the domestic assault charge. He was sentenced on
    February 3, 2012 to eight months in jail. A little less than eight months of
    pre-sentence custody was taken into consideration in sentencing him on the
    domestic assault charge.

[5]

On March 18-20, 2013, the applicant had his trial on the sexual
    assault/voyeurism charges. He was convicted of the charges on May 8, 2013. On
    July 26, 2013, he was sentenced to six years in jail. The trial judge took into
    account 17 real months of pre-sentence custody, which did not include the
    eight months of pre-sentence custody previously credited on the domestic
    assault conviction.

[6]

On September 4, 2013, the applicant filed a Notice of Appeal appealing
    both conviction and sentence on the domestic assault conviction. On November
    28, 2013, he filed a Notice of Appeal appealing both conviction and sentence on
    the sexual assault/voyeurism charges.

[7]

On July 10, 2015, this court dismissed the applicants sexual assault/voyeurism
    conviction appeal and allowed the sentence appeal only to the extent of
    increasing the credit that he received for the 17 months of pre-sentence
    custody served up to the full 1.5:1 credit as required by
R. v. Summers
,
2014
    SCC 26, 2014 CarswellOnt 4479, 2014 CarswellOnt 4480
(S.C.C.).

[8]

On July 22, 2016, this court allowed the applicants conviction appeal
    on the domestic assault charge and concluded that it would not be in the best
    interests of justice to order a new trial, in light of the fact that the
    applicant had already served his sentence of eight months in jail.

C.

issues

(1)

Does the court have jurisdiction to reopen the sentence appeal on the
    sexual assault/voyeurism conviction?

(a)

Parties Positions

[9]

The applicant recognizes that he has already had his sentence appeal
    decided on its merits and, pursuant to
Rhingo

(1997), 115 C.C.C. (3d) 89
(Ont. C.A.), leave to appeal to S.C.C. refused September 18, 1997, his appeal right
    has been exhausted. However, the applicant argues that the court should expand
    the scope of this courts jurisdiction to reopen an appeal beyond the limits
    set out in
Rhingo
because of what he describes as a procedural
    irregularity  the order in which his appeals were heard  resulting in the
    sentencing judge on the sexual assault/voyeurism conviction taking into account
    a conviction for domestic assault which was ultimately quashed. In the
    alternative, the applicant argues that s. 683(3) of the
Criminal Code
allows
    for the incorporation of civil powers into the criminal appeal context. Reading
    s. 683(3) together with Rule 59.06(2) of the
Rules of Civil Procedure
,

which allows a party to make a motion to have an order set aside or varied
    on the ground of fraud or facts arising or discovered after it was made, the
    applicant argues there is an alternative route to jurisdiction to reopen an
    appeal decided on its merits.

[10]

The respondent argues that once an appeal has been heard on
    its merits and a formal order entered, the court is
functus officio
.
    The remedy the applicant seeks, the reopening of his sentence appeal to take
    into account a change in circumstances which occurred a year after the appeal
    was determined on its merits, is inconsistent with the principles identified in
Rhingo
, ignores the courts status as
functus officio
, and
    usurps a function reserved for the Supreme Court of Canada or the Minister of
    Justice in limited circumstances. The respondent further submits that s. 683(3)
    cannot establish a statutory right to reopen an appeal that has been decided on
    its merits. The respondent argues that, when read in the context of the entire
    section, s. 683(3) serves only to expand the procedural powers of this court
    that are necessary to adjudicate appeals, but cannot expand the rights of
    parties to appeal. Interpreting s. 683(3) to permit an appeal of a final order
    of the court of appeal on the basis of a civil rule of procedure is
    inconsistent with Parliaments express grant of limited appeal rights set out
    in s. 675(1) and s. 691(1) of the
Criminal Code.

(b)

Analysis

(i)

The scope of the power to reopen an appeal as set out in
R. v. Rhingo

[11]

The
    case law is well-settled that this courts jurisdiction to reopen an appeal is
    limited to cases which have not been heard and decided on the merits. Charron
    J.A. recognized in
Rhingo
that there is no statutory authority to reopen
    an appeal that has been heard on the merits, nor can the power to reopen an
    appeal that has been heard and decided on the merits be found in the inherent
    or ancillary powers of the court to control its own process:
Rhingo,
at
    paras. 30-38. Charron J.A. set out the sound policy reasons for limiting the
    power to reopen appeals to those that have not been heard on the merits at
    para. 34:

[] An unlimited discretion to reopen appeals that have been
    heard on their merits is not only unjustifiable as an ancillary power of the
    court, but would do significant harm to the criminal justice system. Finality
    is an important goal of the criminal process. Statutory rights of appeal
    provide a carefully crafted exception to the general rule that trial decisions
    are final. By providing broad rights of appellate review in criminal matters,
    Parliament recognized that fairness and justice interests require that the
    accused have a full opportunity to challenge a conviction even through that
    opportunity will prolong the process. Once those broad appellate rights have
    been exercised and the merits of the appeal decided, then absent an appeal to a
    higher court, finality concerns must become paramount. [] The appellate
    process cannot become or even appear to become a never-closing revolving door
    through which applicants come and go whenever they propose to argue a new
    ground of appeal.

[12]

This
    court in
R. v. G.B (application by Gogiatzis, Christodoulou, Churchill,
    Cusato and D.M.)
,
(2003),
    169 O.A.C. 33, 172 C.C.C. (3d) 340, 2003 CarswellOnt 494
(Ont. C.A.), considered the decision in
Rhingo
and, while concluding
    that
Rhingo
did not apply in the context of that case, reiterated at
    para. 20 that there is no authority in Canada entitling a party to apply to a
    court to have a conviction set aside on the basis of newly discovered evidence
    after all appeal rights have been exhausted and the final court is
functus
    officio
.

[13]

Numerous
    other appellate courts have similarly recognized that there is no jurisdiction
    to reopen an appeal heard on the merits:
R. v. Widdifield
,
2016

BCCA

412,

2016

CarswellBC

2932
(B.C.C.A.);
R. v. Purdy
,
    2010 BCCA 43;
R. v. Akinbiyi
, 2008 SKCA 92, 2008 CarswellSask 486
    (S.K.C.A.).

[14]

The
    applicant argues that
Rhingo
defined the scope of the courts power to
    reopen an appeal narrowly because it was addressing only the facts at issue on
    the applications before the court (one which sought to reopen the appeal in
    order to supplement arguments advanced at the first appeal and the other to
    reopen to attack a procedural decision made at the first appeal). He argues
    that his circumstances are different than those addressed in
Rhingo,
in
    that they arise from a procedural irregularity - the order in which his
    appeals were heard. He also argues that the policy considerations in
Rhingo
that a revolving door or unlimited discretion to reopen appeals would
    erode the principle of finality are not in play in his case because of the
    unique facts of this case, where the effect of the timing of his appeals
    rendered his sexual assault sentence and appeal thereof to be based on
    inaccuracies.

[15]

A
    fair reading of
Rhingo
does not support the applicants position that
    the scope of the power to reopen appeals set out in that case was narrowly
    defined because it spoke only to the facts in issue on the applications before
    the court in that case. On the contrary, Charron J.A. approached her analysis
    in the broadest of terms, first canvassing the fundamental principle of the
    exceptional nature of an appeal, then conducting a comprehensive review of both
    the statutory provisions within the
Criminal Code
governing rights of
    appeal and the inherent and ancillary powers of the court to control its own
    process. She recognized that the power of the appellate court to control its
    own process includes the jurisdiction to reopen an appeal which has not been
    heard on the merits, but that there is no authority, either under express
    statutory terms under the
Criminal Code
or in the courts inherent
    powers, to reopen a case that has been heard on the merits. The specific basis
    upon which each applicant in
Rhingo
sought to reopen his case was
    largely irrelevant to the analysis because the decisive factor was that both
    were seeking to reopen their appeals after the appeals had been decided on the
    merits.

[16]

Second,
    it is noteworthy that Charron J.A., at paras. 49-53, reviewed this courts
    decision in
R. v. Logan
(1988), 27 O.A.C. 154 (Ont. C.A.), in which
    this court granted an application to reopen an appeal against sentence on the
    basis that the original appeal panel committed an error in its treatment of the
    applicants parole eligibility period. There, the court did not engage in a
    jurisdiction analysis, and the Crown took the position that the court had
    jurisdiction to reopen the appeal. As such, the decision has little
    precedential value on the question of jurisdiction, but Charron J.A.
    nevertheless stated, at para. 52:

There is no question but that the appeal from sentence had been
    disposed of on the merits at the time Logan and Dunbar applied to the court to
    have the matter reconsidered. However, in the end result, the judgment of the
    court was not changed and, strictly speaking, it was not necessary to decide
    the issue of jurisdiction. The appeal was reopened on consent of the Crown,
    and, although it is clear that consent can never serve to confer upon the court
    a jurisdiction it does not have, it may explain why the issue was not fully
    canvassed at the time.

In any event, I find it necessary, for the reasons stated
    earlier, to depart from the principle implied by the courts assumption of
    jurisdiction in Logan.
In my view, since the court did
    not have the jurisdiction to change its earlier decision pertaining to the
    appeal from sentence, the better course would have been to summarily dismiss
    the application for want of jurisdiction
. [Emphasis added.]

[17]

Therefore,
    it is clear that Charron J.A.s analysis applies across all appeal matters,
    including appeals of sentence, which have been determined on their merits.
    While there has been recognition by this court, subsequent to
Rhingo,
that
    the court has jurisdiction to reopen a sentence appeal where the court did not
    have all the information which existed at the time of the appeal to fully and
    properly adjudicate the issue on the merits, as in the cases of
R. v. De La
    Cruz
, 2003 ONCA 822 at para. 4 and
R. v. Edwards,

(2015),
    2015 ONCA 537, 2015 CarswellOnt 10844
(Ont. C.A.) at paras.
    4-5, it is an entirely different thing to suggest that the court should reopen
    an appeal to consider new events and circumstances which did not exist at the
    time, but which now exist. Therefore, there is no support in the jurisprudence
    for the applicants suggestion that the scope of the power to reopen appeals
    decided on the merits should be expanded.

[18]

The
    second thread of the applicants argument, that expanding the scope of the
    power to reopen would not erode the principle of finality or confer new
    substantive or procedural rights because of the unique factual scenario arising
    from the procedural irregularity which occurred, is also not persuasive. The
    order in which the applicants appeals were heard by this court does not
    constitute a procedural irregularity. The timing and order of proceedings in
    this court was within the control of the applicant and the applicant made no
    motion to have the matters heard in a particular order.

[19]

Further,
    the applicants case does not present a particularly unique circumstance. He
    was convicted of a crime, used up a portion of his pre-sentence custody on
    being sentenced for that crime, and his conviction for that crime was
    subsequently overturned. Virtually any applicant who finds success in
    overturning a conviction could make the very same argument the applicant
    advances now. There would be no finality if an applicant can come back, after
    the court has disposed of a sentence appeal, and request that the court reopen
    his appeal because a separate conviction on another matter has been overturned.
    The applicants requested remedy raises the exact concerns addressed in
Rhingo
about the erosion of finality if appeals which have been decided on their
    merits are reopened.

(ii)

Jurisdiction based on s. 683(3) of the
Criminal Code
and Rule
    69.06(2)(a) of the
Rules of Civil Procedure

[20]

As
    to the alternate route of jurisdiction through a combined reading of s. 683(3)
    of the
Criminal Code
and Rule 59.06(2)(a) of the
Rule of Civil
    Procedure
, the applicant argues that the quashing of his domestic assault
    conviction constitutes facts arising after the courts ruling on his sexual
    assault appeal. This court in
R. v. Codina,
2009 ONCA 970 at para. 8,
    already expressed a reservation about using the
Rules of Civil Procedure
to extend the statutory criminal jurisdiction of the court of appeal beyond the
    jurisdiction expressly granted in the
Criminal Code.
Indeed, when this
    court has resorted to using a Rule to reopen an appeal, it has been to correct
    an error. For example, in
R. v. Kohl
,
2009
    ONCA 254, 2009 CarswellOnt 1509,

(
sub nom.

R. v. K. (K.))

244
    C.C.C. (3d) 124
(Ont. C.A.) at
    para. 12, the court invoked s. 683(3) and Rule 59.06(1) to strike what it later
    concluded based on additional information, was an impermissible probation
    order.

[21]

We
    agree with the reservation the court expressed in
Codina
that s.
    683(3) of the
Criminal Code
can be read as extending the statutory
    criminal jurisdiction of the court of appeal beyond the jurisdiction expressly
    granted by Parliament in the
Criminal Code
. When the words of s.
    683(3) are read in the context of the entire section, it is clear that Parliament
    intended that the court of appeal have the same evidentiary and procedural
    powers necessary to adjudicate criminal appeals as it does for civil appeals.
    Section 683(1) sets out the powers of the court of appeal to make orders of a
    procedural nature in order to facilitate the adjudication of an appeal, where
    it is in the interests of justice to make such procedural orders. Section
    683(3) expressly expands the scope of the procedural orders the court of appeal
    can make, beyond those enumerated in subsection (1), to include any power which
    can be exercised in civil matters. Section 683(3) reads:

A court of appeal may exercise, in relation to proceedings in
    the court, any powers not mentioned in subsection (1) that may be exercised by
    the court on appeals in civil matters, and may issue any process that is
    necessary to enforce the orders or sentences of the court [].

[22]

Both
    subsection (1) and (3) have, as their clear intention, to give the court of
    appeal powers to make orders to facilitate the hearing of an appeal. Neither of
    the express provisions within the
Criminal Code
setting out the rights
    of appeal (s. 675 and s. 691(1)) contemplate an appeal to the court of appeal
    to review the dismissal of an appeal. Appeals from this courts decisions lie
    with the Supreme Court of Canada or, in limited circumstances, to the Minster
    of Justice for review on the grounds of a miscarriage of justice.

[23]

Reading
    s. 683(3), together with Rule 59.06(2)(a), to permit this court to reconsider
    its own decisions on the merits encroaches on Parliaments exclusive
    jurisdiction to determine rights of appeal of convicted persons. As the
    respondent notes, several appellate courts have recognized that jurisdiction in
    criminal matters cannot be grounded in provincial legislation: see
R. v. De
    Jong
,
[
1996
]

B.C.J
.
    No.
682
(B.C. C.A.) at para. 25;
R.
    v. Budgen
, [1992] N.J. No. 15 (C.A.) at pp. 4-5.

(iii)

Conclusion on jurisdiction

[24]

This
    court does not have jurisdiction to reopen the sentence appeal.

(2)

If the court had jurisdiction, would the interests of justice require
    the applicants sentence appeal be reopened?

(a)

Parties Positions

[25]

The
    applicant argues that with the fresh evidence of his domestic assault
    conviction having been quashed, it is likely that the sentencing hearing on the
    sexual assault/voyeurism conviction would have produced a different result. He
    asserts it would be unjust for him to remain incarcerated, given that he would
    now be eligible for release had the pre-sentencing custody which was used up on
    the domestic assault conviction been counted toward his sentence on the sexual
    assault/voyeurism conviction. The applicant submits that public confidence in
    the administration of justice would be undermined if he were not granted credit
    on the sexual assault/voyeurism conviction for the pre-sentence custody served
    on the now-quashed domestic assault conviction.

[26]

The
    appellant submits the quashing of the domestic assault conviction constitutes
    fresh evidence which satisfies the test set out in
R. v. Palmer,
[1980]
    1 S.C.R. 759, and that his sentence appeal has merit. If the court accepts that
    he is entitled to be credited the pre-sentence custody used on the domestic
    assault conviction, then he has served his time. Moreover, he argues that the
    trial judge on the sexual assault/voyeurism charges considered the domestic
    assault conviction in constructing a fit sentence on the sexual
    assault/voyeurism conviction. He notes Justice Rosenbergs
obiter
comments
    in
R. v. Wilson,
2008
    ONCA 510, 2008 CarswellOnt 3715, 240 O.A.C. 59, 236 C.C.C. (3d) 285
(Ont. C.A.), at para. 48: If the sentencing judge had taken the prior
    conviction into account as a serious aggravating circumstance, the fact that
    the accused was later found to be innocent of that offence would be a relevant
    consideration.

[27]

The applicant further argues that this courts recent decision in
R. v. Pammett,
2016 ONCA 979, has no application to this case because
    it is distinguishable on the facts. In
Pammett
,

the appellant
    sought to receive additional credit for pre-sentence custody deducted from his
    six year sentence for possession of cocaine for the purpose of trafficking,
    possession of proceeds of crime, and one count of failing to comply with a
    probation order because he accumulated pre-sentence custody on unrelated
    charges that were ultimately stayed. The applicant argues that the
    distinguishing feature in
Pammett
is that in that case, when the
    offender was being sentenced on his charges, he had not yet stood trial on the
    other charges (which were ultimately stayed). The sentencing judge did not
    consider the matters that had not yet been adjudicated as an aggravating factor
    in sentencing the offender
.

[28]

The
    respondent states that this courts decision in
Wilson
is dispositive
    of the applicants claim that he is entitled to reopen his appeal based on the
    position that he should be credited with the pre-sentence custody that was
    credited to his sentence on the quashed domestic assault conviction. This court
    recognized in
Wilson
that it will not always be the case that an
    accused will receive full credit for time spent in custody and that accused
    parties cannot be permitted to bank time spent in custody. Further, the
    respondent argues that the trial judge, while noting the domestic assault
    conviction when imposing sentence, clearly focused on the applicants prior
    sexual assault conviction and a voyeurism conviction, along with the
    information in the pre-sentence report, in arriving at a sentence. It cannot be
    said that the domestic assault conviction added significantly to the weight of
    circumstances that caused the trial judge to conclude that the applicant was a
    high risk to reoffend and that a sentence of six years was warranted.

[29]

The
    respondent further submits that this court in
Pammett
followed the
    decision in
Wilson
that time spent in custody by an offender on
    unrelated charges cannot be banked. In cases where the offender, on appeal,
    has been given credit for pre-sentence custody served in relation to another
    offence (such as
R. v. Reid,
2005 CanLII 14964 (ON CA)
, [2005] O.J. No. 1790 (C.A.) and
R. v. Tsui,
2005 ONCA 623), that time had not been credited to a
    sentence imposed following a conviction, and the withdrawal of the charges had
    taken place prior to the hearing of the appeal. Moreover, this court stated at
    para. 27 of
Pammett
that a sentencing judge is entitled to take into
    account time spent serving another sentence as part of the complete picture for
    understanding a particular offender.

(b)

Analysis

(i)

Pre-sentence credit for time spent on unrelated
    charges

[30]

This
    courts majority opinion in
Wilson
, together with the decision in
Pammett
,

is dispositive of this issue. As Justice Rosenberg noted at paras. 42-43
    of
Wilson,
to give effect to the submission that an accused is
    entitled to receive credit for time served on another matter which is
    ultimately dismissed, or for which he is acquitted, is tantamount to allowing
    offenders to bank time spent in custody. As he stated at para. 45:

But, at the end of the day, when it comes time to sentence an
    offender the court can only take into account the factors that relate to the
    particular offence under consideration. The fact that an offender, like the applicant,
    still happens to be in the appeal system when a flaw in relation to a totally
    unrelated conviction comes to light is not, in my view, a principled reason to
    give that offender credit for the time he or she spent serving the sentence for
    that unrelated conviction.

[31]

As
    noted earlier in this analysis, this case raises the exact concern about
    offenders banking pre-sentence custody which Justice Rosenberg commented on
    at para. 43 of
Wilson
.

[32]

Further,
    and as the respondent points out in its supplemental submissions, it is unclear
    from the record whether the applicant consented to his detention on the sexual
    assault/voyeurism charges, the domestic assault charge, or any of the other
    charges which he was apparently facing at the time. There is a lack of
    information as to why the applicant was detained and on which of his charges he
    was in custody. As such, it is unclear whether it can be said, conclusively,
    that the eight months in custody was time spent on both the sexual
    assault/voyeurism charges and the domestic assault charge. It cannot be said,
    as was the case in
Reid
and
Tsai,
that the accused was
    refused bail on the second set of charges (the charges that were later
    withdrawn) because he was already on bail for the first set of charges. Thus,
    in part, the time spent in custody for the withdrawn set of charges could be
    attributed to the first set of charges:
Wilson
at para. 50.

[33]

Further,
    while it is the unfortunate reality, as Justice Rosenberg recognized in
Wilson,
that there may be instances where pre-sentence custody cannot ultimately
    be applied to any sentence, in this case, the applicants domestic assault
    conviction was overturned and no new trial was ordered, in light of the fact
    that he had served his eight month sentence. In the circumstances of this case,
    the time the applicant served on the domestic assault charge led the court to
    conclude that it was not in the best interests of justice to order a new trial,
    the remedy which would ordinarily flow from a conviction being quashed.

(ii)

The trial judges use of domestic assault conviction

[34]

Finally,
    while there can be no question that the trial judge at least considered the
    domestic assault conviction when assessing a fit sentence for the applicant, it
    cannot be said that any aggravating factor the trial judge considered did not
    exist without the domestic assault conviction. For example, he noted in his
    Reasons for Sentence that the sexual assault/voyeurism charges were not an
    isolated incident and referred to the May 2011 domestic assault. However, the
    evidence to support this conclusion (that this was not an isolated incident)
    did not rest solely on the May 2011 domestic assault conviction. In particular,
    and as the trial judge reviewed in his reasons, the applicant sexually
    assaulted and confined a co-worker. He threatened that complainant with death
    and punched her in the abdomen to force sexual intercourse. He surreptitiously
    recorded another woman in 2008 and breached court orders in relation to using a
    computer to communicate with two other girls. He received a global sentence,
    after a plea, of seven years. He was sentenced to 21 months jail in 2010 for
    assault causing bodily harm when he punched a domestic partner in the abdomen,
    fracturing her renal cortex, and a further month in jail for failing to comply
    with a probation order. There was significant evidence that the applicants
    conduct in the case before the court was not an isolated incident.

[35]

The
    trial judges conclusion that the applicant was a repeat offender with
    multiple victims all of whom remain fearful of him was fully supported on the
    information provided to him in the pre-sentence report, quite apart from the
    domestic assault conviction. The trial judges conclusion that the applicant
    was a high risk for recidivism, necessitating a six year sentence, was entirely
    appropriate, even when the domestic assault is removed from consideration. The
    applicants criminal antecedents, and in particular, the similar level of
    severity between this sexual assault and the earlier sexual assault which
    attracted a seven year jail sentence, fully support the trial judges
    conclusion on sentence.

(iii)

Conclusion on interests of justice

[36]

It
    would not be in the interests of justice, even if the court had jurisdiction to
    reopen the applicants sentence appeal on the sexual assault/voyeurism conviction,
    to reopen the appeal. The basis of the appeal, that the applicant should be
    given credit for pre-sentence custody served on another charge the conviction
    for which was ultimately overturned, is not supported by the case law. A fair
    reading of the trial judges reasons reflects that he relied quite minimally on
    this conviction in any event. It did not materially impact his assessment of
    the appropriate sentence in this case.

D.

disposition

[37]

For
    the reasons given, the application to reopen the sentence appeal heard and
    dismissed by this court on July 29, 2015 is dismissed.

Released: JM FEB 22 2017

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.





[1]

The applicant appealed both his conviction and sentence. Both
    were dismissed.


