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Criminal - Appeal - Time Extension to Commence. 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. ....
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[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.
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[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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