Decision focuses on reopening abandoned appeal

By John L. Hill

Law360 Canada (March 14, 2023, 9:49 AM EDT) --
John Hill
John L. Hill
During the first three months of 2009, S.M.J. amassed a sizable criminal record in abusing his former common law partner and her daughter. Charges included two counts of criminal harassment, three counts of failing to comply with probation, one count of threatening death and threatening an animal.

He was convicted of these offences in January 2010 and instead of sentencing in the usual course, the Crown sought a dangerous offender application. On July 5, 2011, Justice Leslie C. Pringle designated S.M.J. as a dangerous offender and in the sentencing phase imposed a three-year term of imprisonment and a long-term supervision order to last four years upon release. S.M.J. sought to appeal the designation but abandoned that appeal in 2014. In October of 2022, S.M.J. moved to reopen his appeal. That motion was dismissed on March 8, 2023, in a unanimous judgment of a three-judge panel of the Ontario Court of Appeal (R. v. S.M.J. 2023 ONCA 157).

Despite being dismissed, the case touches upon two issues that can be of assistance to counsel in considering the merits of reopening a case after the appeal period has lapsed. After all, the presumption is that criminal cases must have some finality, and we cannot reopen cases after extensive delay without good reason. Further, since this dangerous offender designation was made before the Supreme Court had spoken in the case of R. v. Boutilier 2017 SCC 64, could there be aspects of the trial judge’s reasoning that would now be in error in light of Boutilier?

The appeal abandonment issue, in essence, was based on an allegation that duty counsel had misled S.M.J. into signing a Notice of Abandonment of Appeal by telling him he did not have a chance of success. This issue was fairly easy to resolve since the duty counsel who had assisted S.M.J. swore that no such advice was given and duty counsel commented it would have been an ethical breach had he done so. S.M.J. had to resile since he had no clear memory of the conversation he had with duty counsel at the time.

Since the onus was on S.M.J. to establish the facts to warrant reopening an abandoned appeal, and he could not do so, the interests of justice did not compel a re-examination. S.M.J. did not have the factual basis to show he had been given improper advice. But this did not put an end to the matter. The Appeal Court noted that the case of R. v. Simmons 2012 ONCA 94 required the court to look deeper to ensure that even in abandoned appeals there is no miscarriage of justice.

Now that Boutilier has taught that at both the designation stage and in determining sentence, the trial judge must have considered both that the offender’s conduct was intractable and decide if future treatment will curb the offensive conduct. In reviewing a dangerous offender designation, an appeal court must look to ensure there have been no legal errors (R. v. Sipos 2014 SCC 47). Even though the sentencing judge is entitled to deference in findings of fact and issues of credibility, the examination in a dangerous offender appeal is more robust than on a “regular” sentence appeal (Sipos and R. v. Currie [1997] 2 S.C.R. 260).

This Appeal Court found that even though the sentencing court made the designation and imposed a sentence and long-term supervision order before the Boutilier case had been handed down, the principles enunciated in Boutilier had been substantially met.

However, in sentencing S.M.J. under s. 753(4.1) of the Code, the sentence and duration of the long-term supervision order was imposed on the basis that there was a “reasonable possibility of controlling [S.M.J.’s] risk in the community.” The standard to be imposed is not “reasonable possibility”; rather it is “reasonable expectation,” a more stringent standard (R. v. Straub 2022 ONCA 47). Even though this may seem harsher, it is a signal that the court is using recent concepts rather than allowing past errors to live on.

Nonetheless, the trial judge’s assessment of treatability did not undermine the foundation for her finding that S.M.J. should be designated as dangerous. An error was technically made but not sufficient to invoke the curative proviso of the Code.

It is significant and heartening that the Ontario Court of Appeal is in effect giving retroactive application of the law as it is now understood to a case decided before Boutilier. In the case of R. v. Milne [1987] 2 S.C.R. 512, the Supreme Court of Canada was unwilling to drop a dangerous offender designation for a man convicted of gross indecency even though “gross indecency” had later been excluded from the definition of “serious personal injury” that could trigger a dangerous offender application. S.M.J. may signal our courts are more willing to consider and understand the benefit of long-term rehabilitation instead of long-term punishment.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

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