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Criminal - Appeals - Cross Appeals. R. v. Suman
In R. v. Suman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown appeal, this brought against acquittals when the trial court found that the respondent had "a reasonable expectation of privacy in his text messages to K.G. and excluded the messages from trial, along with evidence obtained as a result of those messages".
Here the court consider cross-appeals in this criminal context:The respondent’s s. 11(b) application is not properly before the court
[59] Under the “additional issues” heading of his factum, the respondent argues that if this court allows the Crown’s appeal it should consider whether the application judge (a different judge than the one who decided the Charter application concerning the text message evidence) erred in dismissing his application to stay the proceedings because his right under s. 11(b) to be tried within a reasonable time was violated.
[60] The respondent argues the court’s jurisdiction to enter a stay of proceedings is located in s. 686(8) of the Criminal Code, which provides that where the court exercises any of the powers to allow an appeal from acquittal conferred by subsection (4), it may “make any order, in addition, that justice requires.” He argues that it is in the interests of justice that this court consider his appeal from the dismissal of his s. 11(b) application if the Crown is successful in its appeal.
[61] This argument must be rejected.
[62] The Criminal Code does not permit cross-appeals. The respondent is not entitled to revisit the application judge’s ruling on the s. 11(b) application by raising it as an additional issue, contingent on the outcome of an appeal to which he is responding. He is not seeking to defend the order below on a different basis. He is seeking a new order – a stay under s. 24(1) of the Charter. Section 686(8) establishes a residual discretion in the court of appeal to make any order that justice requires in resolving an appeal. It does not create a platform to seek Charter relief in the event of a successful Crown appeal. The respondent retains the ability to assert a s. 11(b) claim at his retrial.
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