Extensions of Time to Appeal

 

The Test

The appellate court has discretion to grant or refuse an extension of time to appeal: R v Ansari, 2015 ONCA 891 at para 21

Relevant factors that may be considered when an extension of time is sought include, but are not limited to:

  • whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposite party within the time prescribed for filing the applicable notice;

  •  whether the applicant has accounted for or explained the delay in filing the notice; and

  • whether the proposed appeal has merit: Ansari at para 22

Depending on the circumstances of the application, other factors may also influence the decision, including:

  • The length of the delay.

  • Prejudice to the respondent.

  • The diligence or inattentiveness of counsel.

  • Whether the applicant has taken the benefit of the judgment. 

  • whether the consequences of the conviction are out of all proportion to the penalty imposed 

  • whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment: Ansari at para 23 and R v AE, 2016 ONCA 243 at para 36

In the final analysis, the overarching consideration is whether the applicant has demonstrated that the justice of the case requires that the extension of time be granted: Ansari at para 23

Examples from the Case Law

Extensions of time to appeal sentence may be granted where collateral consequences arise post-sentencing: R v Ansari, 2015 ONCA 891 at paras 24-27; R v Chen, 2016 ONCA 132

Appeal of Refusal to Extend Time

The circumstances in which the Court of Appeal will reconsider the decision of a single judge of that court to deny an application for an extension of time are narrow, and require the applicant to demonstrate that the justice of the case requires it: see R v Gatfield, 2016 ONCA 23 at paras 5, 11

The court has jurisdiction to grant leave to appeal under s. 131 of the Provincial Offences Act from a judgment that denies an extension of time to appeal under s. 116. However, because of the strict requirements of s. 131(2) governing the granting of leave, coupled with the deference owed to discretionary decisions such as denying an extension of time to appeal, leave to appeal to the appellate court from such decisions will necessarily be rarely granted: R v AE, 2016 ONCA 243 at para 35

 

 

Reopening an Appeal

The Court of Appeal has jurisdiction to reopen an appeal that has not been heard on the merits. Outside of this limitation, the Court of Appeal has absolutely no power to reopen an appeal: R v Perkins, 2017 ONCA 152 at paras 11-19

Jurisdiction to appeal

 

After death of Appellant

The jurisdiction to continue an appeal in a criminal matter, after the death of the appellant, should be exercised sparingly and only where it is in the interests of justice do so. That observation has even greater force in a prosecution under the Provincial Offences Act: R v Hicks, 2016 ONCA 291 at para 2

After Dismissal following Notice of Abandonment

 

Where the appeal was not heard on the merits, the court of appeal has the discretion to set aside the dismissal and reopen the appeal if it is in “the interests of justice” to do so: R v McDonald, 2016 ONCA 288 at para 5

Procedural Powers

Section 683(1) sets out the powers of the court of appeal to make orders of a procedural nature in order to facilitate the adjudication of an appeal, where it is in the interests of justice to make such procedural orders.

Section 683(3) expressly expands the scope of the procedural orders the court of appeal can make, beyond those enumerated in subsection (1), to include any power which can be exercised in civil matters. 

 

s. 683(3) of the Criminal Code can be read as extending the statutory criminal jurisdiction of the court of appeal beyond the jurisdiction expressly granted by Parliament in the Criminal Code. Parliament intended that the court of appeal have the same evidentiary and procedural powers necessary to adjudicate criminal appeals as it does for civil appeals: R v Perkins, 2017 ONCA 152 at paras 20-23