In R v. Perkins, the Court of Appeal for Ontario held that it did not have the jurisdiction to re-open a sentence appeal that had been heard on the merits.

Background and the Application

The applicant’s sentence appeal was dismissed on July 29, 2015. A year later, his appeal from convictions for domestic assault and breach of probation was allowed. The applicant asked the Court of Appeal to re-open his sentence appeal, admit the fresh evidence of his convictions being quashed, and credit him with a further eight months of pre-sentence custody.

The Court of Appeal dismissed the application, concluding that it did not have jurisdiction to re-open an appeal that had been heard on the merits. In any event, the Court added, it would not have been in the interests of justice to re-open the applicant’s appeal even if the Court had the jurisdiction to do so.

Prior Case Law: No Jurisdiction to Re-Open Appeal Heard on the Merits

The Court noted that it “is well-settled that this court’s jurisdiction to re-open an appeal is limited to cases which have not been heard and decided on the merits.” In particular, the Court referred to R. v. Rhingo, where Charron J.A. (as she then was) held that there is no statutory authority to re-open an appeal that has been heard on the merits, and that such a power cannot be found in the inherent or ancillary powers of the court to control its own process.

The applicant tried to distinguish Rhingo by arguing that the decision was confined to its unique facts, and that his case was an unusual one because the order in which his appeals were heard resulted in the sentencing judge taking into account a conviction that was ultimately quashed.

The Court rejected the applicant’s arguments. It concluded that Rhingo was not confined to the particular facts before the Court, and that it “applies across all appeal matters, including appeals of sentence, which have been determined on their merits”. The Court also held that the order in which the applicant’s appeals were heard was not a procedural irregularity or a unique circumstance, and could not justify re-opening his sentence appeal.

Section 683(3) of Criminal Code did not Provide Jurisdiction to Re-Open Appeal

The applicant also relied on s. 683(3) of the Criminal Code, which provides that a court of appeal can exercise any power “that may be exercised by the court on appeals in civil matters”. The applicant argued that this allowed the Court to import the power provided in Rule 59.06(2)(a) of the Rules of Civil Procedure to re-open an appeal on the basis of facts arising or discovered after an order was made.

The Court rejected this argument as well. It noted that none of the provisions in the Criminal Code setting out rights of appeal contemplated a court of appeal reviewing the dismissal of an appeal, and held that reading s. 683(3) and Rule 59.06(2)(a) in the manner suggested by the applicant would “[encroach] on Parliament’s exclusive jurisdiction to determine rights of appeal of convicted persons.”