R v Jonas

Re Jonas and The Queen

139 C.C.C. (3d) 136
Ontario Court of Appeal — Brooke, Rosenberg and Feldman JJ.A. | October 7, 1999

Background

Jonas was convicted of perjury on January 22, 1997, and filed an inmate notice of appeal indicating he wanted his appeal dealt with "in writing." The Crown filed written submissions, which were sent to Jonas with an invitation to make his own written submissions. Jonas contacted the Queen's University Correctional Law Project for help preparing his submissions. Robert Goddard, the Project's Director, contacted the Court of Appeal office and was assured that Jonas's appeal would not be processed until the court received his submissions.

However, due to an administrative oversight, this assurance was not communicated to the panel considering the appeal. When no submissions from Jonas were received, the panel dismissed the appeal in writing. When Goddard learned the appeal had been dismissed, he immediately completed Jonas's submissions, sent them to the court, and applied to reopen the appeal.

Issues

1. Does the Court of Appeal have jurisdiction to reopen an appeal that has already been dismissed?
2. Should the appeal be reopened when the dismissal resulted from an administrative oversight that prevented the appellant from filing submissions?

The Power to Reopen Appeals

The Crown argued the court had no power to reopen the appeal, citing R. v. H. (E.F.), which held that courts cannot reopen appeals that have been "heard on their merits." However, the Court of Appeal distinguished this case, finding that Jonas's appeal was not heard on its merits because the court never received his submissions due to the administrative error. As the court explained, "this applicant seeks to present his substantive arguments for the first time. He did not... have a full opportunity to challenge his conviction."

The court emphasized that procedural fairness required Jonas to have the opportunity to make submissions, especially since he had been assured his appeal wouldn't be processed until those submissions were received. The court rejected the Crown's argument that reopening was pointless because Jonas's submissions "might not have changed the result" — the right to be heard was more important than the potential outcome.

Key Takeaway

Courts will reopen appeals when administrative errors prevent an appellant from having their case properly heard, regardless of whether the submissions would have changed the outcome.

If you're promised that your case won't proceed until you file certain documents, and the court processes it anyway due to an internal miscommunication, you have grounds to seek reopening based on procedural fairness. Act quickly when you discover such an error — Goddard's prompt response after learning of the dismissal was crucial to the successful application.