Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of a Court of Appeal panel to review or hear an appeal from a single judge’s decision refusing an extension of time under s. 678(2) of the Criminal Code
• Statutory nature of appeal rights in criminal matters and the absence of any legislated right to appeal or review a single judge’s extension-of-time ruling
• Limits on the use of s. 7(5) of the Courts of Justice Act in criminal proceedings because provinces cannot create criminal appeal rights or procedures
• Application, by analogy, of R. v. J.M. and comparable appellate authorities across Canada to extension-of-time motions under s. 678(2)
• Whether a Court of Appeal panel can, in some circumstances, exercise concurrent jurisdiction to hear a fresh extension-of-time motion after a single judge has refused such relief
• Assessment of whether there was any “material change in circumstances” or new evidence sufficient to justify reconsidering the extension of time in this case

Background and facts of the case

The matter arises out of a criminal prosecution in which Jude Thangarajah was convicted and sentenced in 2017. The precise offences and sentencing details are not set out in this 2025 Court of Appeal decision, but the conviction and sentence form the foundation of the present dispute. Years after the 2017 disposition, Mr. Thangarajah sought to challenge his conviction and sentence by way of appeal. Because of the delay between the 2017 judgment and his proposed appeal, he required an extension of time to serve and file his notice of appeal. To that end, he brought a motion before a single judge of the Court of Appeal for Ontario under s. 678(2) of the Criminal Code, which empowers either a single judge or a panel of the court to extend the period within which a notice of appeal may be given. The single motion judge, Justice Lois B. Roberts, dismissed his request for an extension of time in a decision released on July 15, 2025 (2025 ONCA 525). In that earlier ruling, she applied the established criteria governing whether to grant extensions of time in criminal appeals, assessed the delay and the reasons for it, as well as the merits of the proposed appeal and the prejudice to the Crown, and concluded that an extension should not be granted. Dissatisfied with that outcome, Mr. Thangarajah, acting in person, then brought a further motion to a three-judge panel of the Court of Appeal (Favreau, Copeland and Dawe JJ.A.) seeking “review” of Justice Roberts’ order, essentially asking the panel to overturn the refusal of an extension and allow his appeal to proceed. The Crown, represented by counsel, opposed the motion. It argued primarily that the Court of Appeal panel lacked jurisdiction to review or hear an appeal from the order of a single judge concerning an extension of time under s. 678(2). In the alternative, the Crown submitted that, even if jurisdiction somehow existed, the motion judge had committed no error and the motion should be dismissed on the merits.

Statutory framework and jurisdictional issue

The central question for the panel was jurisdictional: does a three-judge panel of the Court of Appeal have authority, either by way of appeal or review, to revisit a single judge’s decision refusing an extension of time under s. 678(2) of the Criminal Code? The panel began from the well-established principle that all appeal rights in criminal matters must be created by statute. Criminal appeals do not rest on inherent jurisdiction; they exist only to the extent that Parliament has conferred them in the Criminal Code. The court drew heavily on its earlier decision in R. v. J.M., which dealt with motions to appoint counsel under s. 684 of the Criminal Code. In J.M., the Court of Appeal had held that there was no jurisdiction for a panel to review or entertain an appeal from a single judge’s dismissal of a s. 684 motion, because neither s. 684 nor any other provision of the Criminal Code created such a right of appeal or review. That reasoning turned on the structure of s. 684, which, like s. 678(2), allows either a single judge or the “court of appeal” (a panel) to hear the initial motion, but says nothing about any further right to appeal from that decision. The panel in Thangarajah noted that s. 678(1) requires that notice of appeal be given in the manner and within the time directed by rules of court, while s. 678(2) authorizes a single judge or a panel to extend that time. However, just as with s. 684, there is no language creating a right of appeal from the decision granting or refusing an extension of time. In the absence of such statutory wording, no further appeal or review lies.

Interaction with the Courts of Justice Act and constitutional limits

Mr. Thangarajah’s position implicitly relied on the idea that general appellate provisions, including s. 7(5) of Ontario’s Courts of Justice Act, might allow a panel to review or correct a single judge’s ruling in a criminal motion. Section 7(5) is sometimes used in civil contexts to structure how panels review single-judge decisions. However, the Court of Appeal reaffirmed that provincial legislation cannot constitutionally create new criminal appeal rights or alter the framework of criminal procedure, as these are matters within exclusive federal jurisdiction. As explained in J.M. and cases such as R. v. Scherba, s. 7(5) cannot supply the missing appellate jurisdiction needed to review a single judge’s criminal order. Accepting such a proposition would allow provinces to effectively expand criminal appeal rights, contrary to the division of powers. Because appeal rights in criminal cases must originate in federal criminal legislation, and because s. 678(2) contains no appellate or review mechanism, the panel concluded that there was simply no jurisdiction for it to entertain an appeal or review of the motion judge’s refusal of an extension of time.

Use of prior authorities and comparable appellate decisions

To reinforce its conclusion, the court pointed to both its own prior authority and decisions from other provincial courts of appeal. J.M. provided the core analytical framework: it established that where the Criminal Code allows either a single judge or a panel to hear a given motion, but does not grant a further right of appeal from that motion’s disposition, there can be no appellate review by a panel of the single judge’s ruling. The court acknowledged that in some recent Ontario decisions—R. v. Mohammad and R. v. Muirhead—panels had heard and dismissed motions to review a single judge’s refusal to extend time. In both cases, the panels referred to s. 7(5) of the Courts of Justice Act when describing the standard of review. However, the panel in Thangarajah carefully noted that neither Mohammad nor Muirhead actually decided the jurisdictional question; both disposed of the motions on the basis that the motion judges had made no reviewable error. Accordingly, those cases could not be treated as binding authority that a panel does have jurisdiction over such reviews. The panel also cited decisions from several other appellate courts, including Quebec, Alberta, British Columbia, Saskatchewan, New Brunswick, Manitoba and Quebec’s Court of Appeal in Walker, all of which support the conclusion that there is no jurisdiction for a panel to review a single judge’s extension-of-time decision under s. 678(2). These cases consistently treat the single judge’s ruling as final unless a fresh motion can properly be brought under some concurrent jurisdiction theory.

Concurrent jurisdiction and the possibility of a fresh motion

The court then turned to a nuance that had been recognized in J.M. on the appointment-of-counsel context. Although J.M. held that there is no jurisdiction to “appeal” or “review” a single judge’s dismissal of a s. 684 motion, it also recognized that both a single judge and a full panel possess concurrent jurisdiction to hear an initial s. 684 motion. That concurrent jurisdiction means that, in some circumstances, a panel may hear a new, “afresh” motion to appoint counsel even where a single judge has previously refused such relief, provided there has been a sufficient change in circumstances to justify revisiting the issue. In Thangarajah, the Crown argued that this concurrent-jurisdiction principle should not be extended to s. 678(2) extension-of-time motions, mainly because, unlike a s. 684 motion, refusal of an extension effectively ends any pending appeal. Without an active appeal file, the Crown contended, there is nothing left before the court over which concurrent jurisdiction could operate. The panel declined to definitively resolve that larger doctrinal question. Instead, it assumed—without deciding—that such concurrent jurisdiction might exist for s. 678(2) motions in line with the approach adopted by several other provincial courts of appeal. On that assumption, a panel could potentially hear a subsequent extension-of-time motion where there has been a “material change in circumstances” after a single judge’s refusal. The key issue would then be whether the new motion truly rests on new facts or developments that were not and could not reasonably have been before the original motion judge. Applying this standard to the record before it, the panel held that there had been no material change in circumstances since Justice Roberts’ 2025 decision. Although Mr. Thangarajah filed additional documentation, the panel concluded that none of this material altered the factual matrix underlying the original motion, nor did it affect the reasons given by the motion judge. Crucially, all of the “new” documents were information that could have been placed before the motion judge in the first instance; they were not genuinely new developments arising after her decision. As such, even on the most generous view of concurrent jurisdiction, there was no basis to entertain a fresh extension-of-time motion.

Outcome and implications for the parties

Having found (1) that it had no jurisdiction to review or hear an appeal from the single judge’s refusal of an extension of time and (2) that, in any event, there was no material change in circumstances to justify exercising any possible concurrent jurisdiction, the Court of Appeal panel dismissed Mr. Thangarajah’s motion. The court also indicated that it discerned no error in the motion judge’s approach: she applied the correct legal test for extensions of time to file a criminal appeal, and her factual findings were supported by the record and entitled to deference. As a result, the 2017 conviction and sentence remain undisturbed, and no appeal will proceed from them. In this outcome, the successful party is His Majesty the King (the Crown), whose position on jurisdiction and, in the alternative, on the absence of any error by the motion judge was accepted by the court. The reasons do not record any order for costs, damages or other monetary relief, and no specific amounts are mentioned, so on the face of this decision, no monetary award or quantified costs can be determined as having been granted in favour of the Crown.