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Criminal - Stays (2). R. v. D.D. (II)
In R. v. D.D. (II) (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion seeking "an order to prevent the Toronto Police Service from continuing their examination of electronic devices seized pursuant to three search warrants, pending an appeal of the dismissal of an application for certiorari which sought to quash the warrants as facially invalid", to which it applied the RJR stay pending appeal test:[2] Assuming, without deciding, that the court has jurisdiction to grant such an order through the combination of s. 683(3) of the Criminal Code, R.S.C. 1985, c. C-46, and s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, we are of the view that it is not appropriate to make the order requested.
[3] We apply the usual legal framework for stays pending appeal.
[4] Although the merits will ultimately be decided by a panel of the court on the appeal proper, we are not persuaded that there is a serious issue in relation to the merits of the appeal. Certiorari is a discretionary remedy. There is no obvious error in the application judge’s decision to decline to exercise his discretion to make an order of certiorari. The jurisprudence is clear that relief in the nature of certiorari to determine the constitutional validity of search warrants is exceptional in the context of an ongoing police investigation before charges are laid.
[5] Further, apart from the discretionary issue, the appellant’s argument that the informations to obtain the search warrants did not provide reasonable and probable grounds appears weak. The police are not required to exclude every alternate inference in order to meet the reasonable and probable grounds threshold. Nor do we see merit to the appellant’s argument that there were not reasonable and probable grounds to believe that a search for electronic devices in his home would afford evidence of an offence.
[6] Turning to irreparable harm, although we accept that there is an impact on the appellant’s privacy interests from the continuing police examination of the devices pursuant to the warrants, it is far from the type of impact that would render his appeal moot. If the appellant is successful on appeal, this court retains the ability to grant a remedy in relation to the warrants and the fruits of their execution. Further, in the event that criminal charges are laid, the appellant retains the ability to bring a Charter challenge to the admissibility of the fruits of the searches at trial.
[7] Weighing the lack of apparent merit of the grounds of appeal, the limited impact of allowing the police examination of the electronic devices to continue, and the public interest in allowing the investigation to continue based on the presumptively valid warrants, the balance of convenience does not favour granting an order in the nature of a stay. . R. v. D.D. (I)
In R. v. D.D. (Ont CA, 2026) the Ontario Court of Appeal considered whether a single judge of the court could grant a stay pending appeal, this where the underlying order "dismissed the moving party’s application for certiorari to quash three search warrants".
Here the court referred both the panel jurisdictional issue (an issue which the court characterized as 'murky') and the merits of the stay motion to a panel of the court:[4] Before hearing the parties’ submissions on the motion’s merits, I asked them for submissions on the jurisdiction of this court, and of a judge of this court sitting alone, to make the orders sought. Having considered those submissions, I conclude that the motion should be referred to a panel for determination of the jurisdictional questions and the merits.
Section 683 of the Criminal Code
[5] Section 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, gives a court of appeal the power to make various procedural orders “in the interests of justice” for the purposes of an appeal. A stay is not one of the orders listed in s. 683(1). Pursuant to s. 683(3), however:A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto. [6] Assuming s. 683(3) allows this court to grant the orders sought, this power would have to be exercised by a panel, not a judge sitting alone. In R. v. Gibson (October 15, 2024), Toronto, M55414 (COA-24-CR-0580) (Ont. C.A.), Nordheimer J.A. interpreted “court of appeal” to mean a panel, not a single judge.
Section 134(2) of the Courts of Justice Act and r. 63.02(1)(b) of the Rules of Civil Procedure
[7] D.D. relies on r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This rule specifically empowers a judge of the court to which an appeal has been taken to issue a stay pending the determination of the appeal. Section 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, more generally provides that, on a motion, a court to which an appeal is taken may make “any interim order that is considered just to prevent prejudice to a party pending the appeal”.
[8] I am doubtful that provincial legislation supplements and expands the jurisdiction of this court in criminal matters. In R. v. Thangarajah, 2025 ONCA 897, leave to appeal to the S.C.C. requested, 42166, this court held that s. 7(5) of the Courts of Justice Act did not empower the court to hear a review or appeal of a motion judge’s decision dismissing a motion for an extension of time in a criminal appeal. At paragraph 4, it explained that s. 7(5) “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”: citing R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, at paras. 25-26.
[9] The same logic applies with respect to r. 63 of the Rules of Civil Procedure, particularly since the Criminal Appeal Rules no longer incorporate the Rules of Civil Procedure.
Rules 21(12)(e) and (t) of the Criminal Appeal Rules
[10] Rule 21(12)(e) of the Criminal Appeal Rules provides that a single judge may determine “[a] motion for a stay under ss. 320.25 or 683(5) of the Code or any other motion to stay an order to prevent frustration of the appeal”.[2] The moving party argues that this rule should be interpreted disjunctively and that the second part of the rule confers jurisdiction on a single judge to hear appeals of orders made pursuant to a common law power, such as certiorari. The moving party further relies on rule 21(12)(t), which empowers a single judge to hear “[a]ny motion that the court or a judge directs or orders shall be heard and determined by a judge”.
[11] I have not been provided with any decisions interpreting r. 21(12)(e) or (t). I note, however, that the Criminal Appeal Rules cannot be interpreted in a way that is inconsistent with the Criminal Code or any Act of Parliament: Criminal Code, s. 482(1). The Criminal Appeal Rules furthermore cannot be used to expand the court’s jurisdiction: R. v. M.H., 2026 ONCA 19, at para. 13, citing J.M., at paras. 27-28. The moving party’s interpretation of r. 21(12)(e) and (t) would arguably be inconsistent with the power specifically conferred on a panel of the court under s. 683(3) of the Criminal Code.
[12] The jurisdictional analysis is further complicated because Wojciechowski J.’s order arguably lapsed when Dunphy J. delivered his decision on the certiorari application. If so, the moving party is not just seeking a stay of the order under appeal but something more.
The court’s ancillary jurisdiction
[13] The court could potentially order the relief sought based on its ancillary jurisdiction. Such ancillary jurisdiction may be exercised to prevent the frustration of an appeal: R. v. Church of Scientology (1986), 1986 CanLII 4633 (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-51; R. v. E.F.H. (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), at fn. 7. The court’s ancillary jurisdiction is generally exercised by a panel. It may nonetheless be exercised by a single judge if “a specific basis is provided either by statute or by regulation”: Church of Scientology, at p. 151.
[14] In R. v. Jones (1996), 1996 CanLII 285 (ON CA), 111 C.C.C. (3d) 351 (Ont. C.A.), at p. 352, McMurtry C.J.O. (as he then was) concluded that, as a single judge of the Court of Appeal, he was empowered to order a stay based on the ancillary jurisdiction of the court. He relied on Church of Scientology and the fact that r. 63.02(1) of the Rules of Civil Procedure was incorporated in the Criminal Appeal Rules then in force.
[15] The current Criminal Appeal Rules no longer incorporate the Rules of Civil Procedure. The moving party suggests that r. 1(4) of the Criminal Appeal Rules “fills the gap”. This rule states:
Where matters are not provided for in these rules or the court’s practice directions, the court, a judge or the Registrar may adopt any procedure that is not inconsistent with these rules.
[16] The Crown contends that r. 21 sets out the motions that may be heard by a single judge. Since the matter is provided for, r. 1(4) has no application to this motion.
Conclusion
[17] In R. v. D.W., 2023 ONCA 638, at para. 14, Hourigan J.A. acknowledged that it was an open question whether a single judge had the jurisdiction to stay an order under the Sexual Offender Information Registration Act, S.C. 2004, c. 10. He accordingly referred the request to the panel hearing the sentence appeal on the merits. In R. v. Metro News Ltd. (1985), 1985 CanLII 3639 (ON CA), 21 C.C.C. (3d) 492 (Ont. C.A.), as noted by Grange JA at p. 497, the jurisdictional issues were similarly before a panel on referral by a single judge.
[18] Given the murky jurisdictional waters here, I am following the precedent set in D.W. and Metro News and referring the motion to a panel of this court to consider both the jurisdictional issues and the merits. The motion is adjourned to Monday, June 8, 2026 at 2:30 p.m. At my request, Crown counsel will ask the police to continue to refrain from searching the seized devices in the interim. . R. v. I.L.
In R. v. I.L. (Ont CA, 2026) the Ontario Court of Appeal considers stays of proceedings, here in a criminal context:1. The application judge did not err in declining to stay the proceedings
[5] With respect to the s. 7 Charter breach, there is no question that the conduct of Crown counsel (not appellate counsel) was egregious. Crown counsel knew of and failed to disclose evidence that undermined the basis for the bail review application. Nevertheless, he continued to seek to review certain conditions of the appellant’s interim release order affecting his parenting rights with respect to his two children. These children were not involved with or affected by the charges involving the complainant.
[6] The appellant does not argue that the Crown’s conduct in this case affected trial fairness. Rather, he submits that the Crown’s conduct falls within the “residual” category of cases warranting a stay of proceedings, as that conduct “risks undermining the integrity of the justice process”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. He argues that the application judge erred in failing to recognize and give effect to the egregiousness of the Crown’s conduct for which a stay of proceedings was the only appropriate remedy.
[7] It is well established that a stay of proceedings is “the most drastic remedy a criminal court can order” and will be granted only on “rare occasions”, in the “clearest of cases”: Babos, at paras. 30-31. Moreover, cases warranting a stay of proceedings within the residual category will be exceptional and very rare: Babos, at para. 44. It is only where “the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted: Babos, at para. 44, citing R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667.
[8] In Babos, at para. 32, Moldaver J. set out the three-part test to be followed in determining whether a stay of proceedings should be ordered:(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. [Citations omitted.]
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