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Criminal - Appeal - Time Extension to Commence. R. v. Lee
In R. v. Lee (Ont CA, 2026) the Ontario Court of Appeal considered a motion seeking "an extension of time to appeal part of his sentence":[3] It is not in the interests of justice to grant the requested extension. The moving party does not meet the following well-established factors, set out in R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-23, that inform this analysis:(1) There is no evidence that he intended to appeal before he filed this motion, more than two years after the imposition of the fine.
(2) The more than two-year delay is inordinate and inadequately explained. His claim that he recently found an additional $240,000 payment to CRA that was unaccounted for in the $990,000 fine arising out of the joint position of the parties is unsupported by any admissible evidence. According to the responding party’s uncontested evidence, that amount was included in the disclosure provided to him and his counsel in 2017, well before his guilty plea and sentencing in 2023.
(3) There is no merit to his proposed appeal. The moving party does not resile from his consent to the guilty plea and joint position on sentence nor does he allege ineffective assistance of counsel who represented him in the resolution of the proceedings. He does not object to the $990,000 fine as the product of an error in principle or as unfit. Rather, the moving party appears to allege that there was a computation error in the calculation of the amount of monies owing to CRA because of his alleged additional $240,000 payment in 2017. The sentence imposed by a trial court is entitled to considerable deference: R. v. Lacasse, 2015 SCC 64, at para. 41. It follows that the $990,000 fine in this case that formed part of a joint position is subject to very high appellate deference; joint submissions are a “proper and necessary part of the administration of criminal justice”, in part due to the near-certainty of their acceptance: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paras. 5 and 41. The moving party has not asserted that the acceptance of the joint position on sentence, to which he agreed with the assistance of counsel, was an error. I see no basis here for appellate intervention. . 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. . R. v. J.H.
In R. v. J.H. (Ont CA, 2025) the Ontario Court of Appeal denied a motion to extend time to commence a criminal appeal:[2] J.H. did not take steps to appeal his conviction for more than three years after his conviction and sentence. In his affidavit in support of this motion, he attests that he did not appreciate the impact that his conviction would have until he found it difficult to secure other employment after losing his job in May 2023, more than a year after his conviction and sentence. He also attested that he did not understand that it was possible to appeal his conviction until he contacted counsel in May 2025. It then took him until September 2025 to retain counsel due to financial circumstances. The notice of appeal he is now relying upon is dated October 31, 2025, approximately three and one-half years after his conviction and sentence.
[3] An extension may be granted where the justice of the case requires. The legal test for granting an extension of time was described in R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-23. The primary factors for consideration include: (1) whether the applicant has shown a bona fide intention to appeal within the appeal period; (2) whether the applicant has accounted for or explained the delay; and (3) whether the proposed appeal has merit. .... . R. v. Ahmed
In R. v. Ahmed (Ont CA, 2025) the Ontario Court of Appeal grants a defendant's motion to extend time to commence a criminal appeal (of an NCR verdict), here considering the test set out in Ansari and a 'material change in circumstance':[1] This is an application for an extension of time to file a notice of appeal, pursuant to r. 9 of the Criminal Appeal Rules. ....
....
[4] The determination of whether to grant an extension of time requires the court to consider whether “the interests of justice warrant the extension”: R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 12. This court in Ansari, at paras. 22-23, recognized four factors, inter alia, to be considered:(1) whether the applicant has shown a bona fide intention to appeal within the appeal period;
(2) whether the applicant has accounted for or explained the delay;
(3) whether the proposed appeal has merit; and
(4) whether there is any prejudice to the Crown. [5] In R. v. Mitchell, 2012 ONCA 804, at para. 3, Weiler J.A. noted these factors are not closed and that other factors may apply in the criminal context, such as “the position of the defence at trial, whether the proceedings were consensual in nature and, more generally, whether the proceedings appeared to be fair and whether they were fair”. In my view, the four factors set out in Ansari described above bear most directly on this application.
....
[11] This court has considered the meaning of a material change in circumstances in the context of when a second bail pending appeal application may be brought. In R. v. Daniels (1997), 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737 (C.A.), this court held that a new argument “will seldom amount to a material change” but that there are “rare cases” where a new ground of appeal may be considered a material change:Usually, subsequent applications based on an alleged change in circumstances depend upon some event which occurred between the initial application and the subsequent application. On occasion, subsequent applications are brought when a part of the trial record becomes available and adds significant weight to the merits of the appeal. Here, the alleged change in circumstances rested in large measure on the restatement in a more comprehensive form of legal arguments made on the first application. In addition, one new argument was put before Laskin J.A. I agree with Laskin J.A. that these kinds of arguments will seldom amount to a material change in circumstances justifying release. I would not, however, interfere with the conclusion of Laskin J.A. that this was one of those rare cases where a rearticulation of arguments previously made supplemented by a new ground of appeal amounted to a material change in circumstances which affected the outcome of the public interest inquiry required under s. 679(3) (c): at p. 751. [12] While Daniels related to a subsequent application for bail pending appeal, I see no reason why a similar approach should not apply in the context of a subsequent application to extend time, given the overlapping considerations on both types of application. . R. v. Muirhead
In R. v. Muirhead (Ont CA, 2025) the Ontario Court of Appeal dismissed a CJA 7(5) panel motion to set aside "the motion judge’s decision dismissing his request for an extension of time to file a notice of appeal":[1] The applicant brings a motion under s. 7(5) of the Courts of Justice Act., R.S.O. 1990, c. C.43, to review the motion judge’s decision dismissing his request for an extension of time to file a notice of appeal in relation to convictions in 2020 (“Proposed Appeal #1”) and 2022 (“Proposed Appeal #2”). In 2020, he was convicted, following summary conviction proceedings in the Ontario Court of Justice, of failure to comply with a breath demand under s. 320.15 of the Criminal Code, R.S.C. 1985, c. C-46. In 2022, he was convicted, following a guilty plea, of three drug-related offenses under the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] A panel review of the decision of a single motion judge is not a re-hearing of the motion. The panel may interfere with the order of the motion judge only if that judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; DeMarco v. Nicoletti, 2017 ONCA 417, at para. 3; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. . R. v. Rodney
In R. v. Rodney (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion to extend time for a criminal sentencing appeal:[4] The applicant now asks this court for an extension of time to file a notice of appeal to seek leave to appeal from his sentence issued on April 11, 2024, nearly eight months after the 30-day appeal period in r. 8(3) of the Criminal Appeal Rules, SI/93-169, expired. I dismiss the motion for the reasons that follow.
The Governing Principles
[5] The applicant bears the onus of satisfying the court that the justice of the case requires the extension of time to be granted: see R. v. Menear (2002), 2002 CanLII 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 116. The following considerations apply:. whether the applicant has shown a bona fide intention to appeal within the appeal period;
. whether the applicant has accounted for or explained the delay in filing the notice; and
. whether the proposed appeal has merit: Menear, at para. 20. [6] These considerations do not comprise a rigid test or absolute rule: R. v. Junkert, 2009 ONCA 922, at para. 23.
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