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Constitution - Criminal. R. v. Thangarajah [provincial civil appeal provisions n/a to criminal appeals, must be federal]
In R. v. Thangarajah (Ont CA, 2025) considered a civil CJA s.7(5) panel motion brought to set aside an earlier (criminal) single judge dismissal of a motion [under CCC 678(2)] to extend time to commence a criminal appeal. The issue was whether the court had jurisdiction to hear this civil appellate [CJA s.7(5)] set aside motion (or, for that matter, any appeal) of the refusal to extend time [under CCC 678(2)] - given that it was in a criminal context. The court clarifies that criminal appeals must, like any appeal, be legislated - and that, given the federal constitutional power over criminal matters, it must be federal legislation (which the CJA and RCP are not).
At para 8 the court plainly states: "... appeal rights in criminal matters must be created by federal criminal legislation.":[3] We agree with the Crown’s submission that this court does not have jurisdiction to review or hear an appeal from the order of the motion judge. In our view, the reasoning from R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, applies to the circumstances of this motion. In J.M., the court held that a panel of the court had no jurisdiction to review or hear an appeal from the order of a single judge dismissing a motion to appoint counsel under s. 684 of the Criminal Code. The court reasoned as follows. Rights of appeal are created only by statute. There is no inherent jurisdiction for appeals in criminal matters: J.M., at para. 20. Section 684 of the Criminal Code provides authority for a single judge or a panel of the court to appoint counsel to an accused on appeal where it is in the interests of justice and the accused does not have the means to obtain counsel. However, s. 684 contains no provision authorizing an appeal from a decision to grant or dismiss a motion to appoint counsel, nor does any other section of the Criminal Code: J.M., at para. 21.
[4] The court further held that s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, cannot create rights of appeal in criminal proceedings because the province does not have constitutional competence to legislate in relation to criminal law or procedure: J.M., at paras. 25-26; see also R. v. Scherba (2001), 2001 CanLII 4208 (ON CA), 155 C.C.C. (3d) 512 (Ont. C.A.), at paras. 10-11.
[5] The same reasoning applies here. The power to grant an extension of time is found in s. 678(2) of the Criminal Code. Section 678(1) provides that notice of appeal must be given “in such manner and within such period as may be directed by rules of court.” Section 678(2) provides that a single judge or a panel of the court may extend the time within which notice of appeal may be given. The structure of s. 678(2) is the same as s. 684 in that the jurisdiction to extend time to give notice of appeal may be exercised either by a single judge or by a panel of the court. It is also the same as s. 684 in that s. 678 does not provide for any right of review or appeal from a decision regarding an extension of time. Because criminal appeals must be created by legislation and there is no right of review or appeal in the Criminal Code from a decision in relation to an extension of time, there is no right of appeal or review from a decision of a single judge on a motion to extend time under s. 678(2) of the Criminal Code.
[6] Decisions of other provincial courts of appeal support the conclusion that a panel of a court of appeal does not have jurisdiction to review or hear an appeal from a decision of a single judge of the court dismissing or granting a motion for an extension of time under s. 678(2): Arcand c. R., 2009 QCCA 74, at para. 1; R. v. Harness, 2005 ABCA 245, 200 C.C.C. (3d) 431, at paras. 16-20, 33; R. v. O’Malley (1997), 1997 CanLII 3043 (BC CA), 119 C.C.C. (3d) 360 (B.C.C.A.), at paras. 9-19, leave to appeal refused, [1998] S.C.C.A. No. 94; R. v. Butchko, 2004 SKCA 159, 257 Sask. R. 41, at paras. 11-14; R. v. Aggek (D.I.) (1999), 1999 CanLII 32847 (NB CA), 209 N.B.R. (2d) 16, 535 A.P.R. 16 (C.A.); R. v. Giesbrecht (E.H.), 2008 MBCA 102, 237 C.C.C. (3d) 203, at paras. 9-21.
[7] Mr. Thangarajah referred the court to the recent decisions of R. v. Mohammad, 2024 ONCA 494, leave to appeal refused, [2024] S.C.C.A. No. 483, and R. v. Muirhead, 2025 ONCA 53, where panels of the court heard and dismissed motions to review a dismissal by a single judge of a motion for an extension of time to file an appeal. In both of those decisions, the court referred to decisions of the court under s. 7(5) of the Courts of Justice Act in explaining the standard of review. However, the panels dismissed both motions on the basis that the motion judge did not err in their decision to deny the request for an extension; neither panel decided the issue of jurisdiction.
[8] Because the issue of jurisdiction was not decided in Mohammad or in Muirhead, these cases are not determinative of jurisdiction: Heegsma v. Hamilton (City), 2024 ONCA 865, 174 O.R. (3d) 793, at para. 23; Singh v. Heft, 2022 ONCA 135, at para. 15; CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846, 342 O.A.C. 49, at para. 12. As explained above, appeal rights in criminal matters must be created by federal criminal legislation. Section 7(5) of the Courts of Justice Act cannot provide authority for a panel of the court to review a decision of a single judge on a criminal motion.
[9] Although the court in J.M. held that there is no jurisdiction for a panel of the court to review or hear an appeal from a decision of a single judge dismissing a motion to appoint counsel under s. 684 of the Criminal Code, the court also held that in appropriate circumstances, a panel of the court may exercise its jurisdiction under s. 684 of the Criminal Code to consider a motion to appoint counsel afresh even though a single judge has already denied such a motion. Section 684(1) provides that a motion to appoint counsel can be heard by a single judge or by the “court of appeal”. The effect of this language is that a panel of the court has concurrent jurisdiction with a single judge to hear a s. 684 motion. A panel of the court will consider exercising its concurrent jurisdiction to consider the motion afresh where circumstances have changed sufficiently since the motion judge’s decision to warrant a reassessment: J.M., at paras. 31-34. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the federal division-of-powers 'criminal' head [The Constitution Act, 1867, s.91(27)]:[108] First, the TGEWA does not fall under or interfere with the federal criminal law power.
[109] To fall within the criminal law power under s. 91(27), a law must have (i) a prohibition, (ii) a penalty backing that prohibition, and (iii) a criminal law purpose: Reference re Genetic Non-Discrimination Act, at para. 67. The application judge held that the TGEWA does not satisfy any of these elements. We agree.
[110] The TGEWA does not constitute criminal law. The operative provisions of the Act declare a commemorative week. They contain neither a prohibition nor a penalty. They have no legal effect in any criminal proceeding.
[111] The preamble of the TGEWA may indicate that the Sri Lankan state is responsible for a “genocide” while using the term’s criminal law definition, but the preamble creates no rights or liabilities. Nor does the preamble purport to satisfy any of the elements of s. 6(1) of the Crimes Against Humanity and War Crimes Act for criminal law purposes against any person charged with the offence. We thus reject Mr. Hewage’s submission that Ontario “has utilized areas of the criminal [l]aw” and “effectively applied” the criminal prohibition under s. 6(1) by designating the Sri Lankan Civil War a “genocide”.
[112] Additionally, absent any criminal law effect, we do not see how the TGEWA encroaches on the federal power over criminal law. The Act may reference a criminal law definition, but this reference does not interfere with the prosecution of genocide offences in accordance with federal law. There is no evidence that the Act has been or was intended to be used to impact criminal proceedings.
[113] We accordingly conclude that the TGEWA does not fall under or interfere with the federal criminal law power. . Murray‑Hall v. Quebec (Attorney General)
In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada characterizes the constitutional criminal power, noting that an internal statutory exception to a larger criminal prohibition does not mean "that the practice is positively allowed by the federal law":[90] In my opinion, the appellant’s position cannot be accepted. The purpose of the federal Act’s provisions is not to create a positive right to self‑cultivate cannabis as part of a broader objective of limiting the influence of organized crime. Such a purpose would be inconsistent with the fact that “the criminal law power is essentially prohibitory in character” (Rothmans, at para. 19), a fact that has been recognized in Canadian law since the leading case of Proprietary Articles Trade Association v. Attorney General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310 (P.C.). As McLachlin C.J. noted in Reference re AHRA, “[t]he federal criminal law power may only be used to prohibit conduct” (para. 38). It follows that when exceptions are carved out for practices that Parliament does not wish to prohibit, this “only means that a particular practice is not prohibited, not that the practice is positively allowed by the federal law” (ibid. (emphasis deleted)). . Reference re Genetic Non‑Discrimination Act
In Reference re Genetic Non‑Discrimination Act (SCC, 2020) the Supreme Court of Canada considered whether a criminal law that prohibited the collection and use of genetic information was valid under the federal constitutional criminal division of powers. In doing this the court determined the 'pith and substance' of the law by a two-step 'characterization and classification' procedure [at paras 20-103]. The case is interesting for the genetic issue and for it being an example of the division-of-powers analysis.
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