Simon's Megalomaniacal Legal Resources

Courts - Court of Appeal (CA)

. R. v. D.D.

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.

. Strutzenberger v. Strutzenberger [transcripts/CA not 'court of record']

In Strutzenberger v. Strutzenberger (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion "to have his hearing before Paciocco J.A. transcribed", this in aid of a panel appellate motion for "review of the order ... which dismissed his motion for an extension of time" to commence an appeal.

The court cites portions on the Civil Appeal Practice Direction regarding the taking of transcripts:

[4] Section 17 of the court’s Practice Direction Concerning Civil Appeals states:

1. The Court of Appeal is not a “court of record”. Its oral hearings are not monitored or transcribed as a matter of routine. However, the Court of Appeal records all hearings that are held in open court through the use of digital audio recording. Unless a judge orders otherwise, a copy of a digital audio recording is available upon request, provided that the proceedings are not subject to a statutory publication ban or other court order that prevents the release of the digital audio recording.

2. Requests for access to digital audio recordings should be made in the Registrar’s Office and are subject to payment of the prescribed fee, unless a fee waiver certificate is produced. Such recordings are for personal use, and will not be released unless the person requesting the recording signs an undertaking agreeing to respect the limits on the permitted uses of the recording.

3. A person seeking to have a transcript of a hearing made must bring a motion for permission to do so before a single judge. Once the order is obtained, the person may have the recording transcribed at the person’s own expense.

4. The publication, broadcasting, reproduction or other dissemination of an audio recording of a court hearing is prohibited unless expressly authorized by a court order. [Emphasis added.]

[5] In my view the Practice Direction establishes a presumption that preparation of a transcript of a hearing in this court will not usually be permitted. There is limited jurisprudence on the criteria a single judge should consider in granting permission to have a transcript. Mr. Strutzenberger does not allege that there were any irregularities in the hearing. He is able to function and is articulate. He has provided no argument as to why it would be in the interest of justice to make the order he seeks. I am not persuaded that the transcript would assist Mr. Strutzenberger or the panel in hearing his motion to review the order of Paciocco J.A.

. Ramos (Re)

In Ramos (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's NCR appeal, here brought against a decision continuing detention on the grounds that it was "inconsistent with the requirement under s. 672.54 ['Dispositions by a Court or Review Board - Terms of Dispositions'] of the Criminal Code, R.S.C. 1985, c. C-46, to impose the least onerous and least restrictive disposition that is compatible with public safety."

Here the court notes an instance of a per incuriam ['through lack of care'] ruling, as a stare decisis exception:

[38] Thus, to the extent that it suggests otherwise, Negash was rendered inadvertently or per incuriam. It overlooked both Young and Conception. Had those precedents been considered, the outcome would have differed: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77.

[39] Because per incuriam decisions are an exception to the five-judge rule, a three-judge panel may overturn Negash on this point: McArdle v. Bugler, 2007 ONCA 659, 87 O.R. (3d) 433, at para. 27. Respecting Young and Conception requires doing so here: Sullivan, at para. 75; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 205, 267, per Côté, Brown, and Rowe JJ. (concurring).

. 9383859 Canada Ltd. v. The Court of Appeal for Ontario

In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considers a JR brought against the Court of Appeal itself:

[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.