Court of Appeal for Ontario

Date: 2025-09-18 Docket: COA-25-OM-0309 Motion Judge: Sossin J.A.

Between

His Majesty the King Respondent/Responding Party

and

Ahmed Ahmed Appellant/Applicant

Counsel:

• Carter Martell, for the appellant/applicant
• Kevin Chan, for the respondent/responding party

Heard: September 12, 2025

Reasons for Decision

Overview

[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. The applicant seeks to appeal the verdict of Not Criminally Responsible by Reason of Mental Disorder ("NCR") entered by Hogg J. on July 9, 2013, following a joint submission, after the applicant pled guilty to two counts of aggravated assault.

[2] The applicant has been detained in hospital since December of 2013, following his first Ontario Review Board ("ORB") disposition hearing (except for two brief periods in the community from September to October of 2017 and January to March of 2018, respectively).

[3] In 2016, he sought and was denied an extension of time to file a notice of appeal against his NCR designation, on the ground that he was misdiagnosed in 2013, and that it was his cocaine use, rather than a mental illness, that caused him to commit the offences: R. v. Ahmed (14 July 2016), M46665 (Ont. C.A.) ("Ahmed 2016").

[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.

[6] The applicant has demonstrated that there has been a material change of circumstances since his first application for an extension of time in 2016, thus giving me jurisdiction to hear this second application. He has also met the test for an extension of time. Accordingly, I would grant the application.

Analysis

There has been a material change

[7] As this is the applicant's second application for an extension of time to file a notice of appeal, I only have jurisdiction to hear it in special circumstances, such as if there has been a material change in circumstances: R. v. Ali (29 December 2020), M52061(C68555) (Ont. C.A.), per Coroza J.A. (in chambers), at para. 7. Therefore, prior to considering the factors on the application to extend time, I must first examine whether there has been a material change since the first application.

[8] The applicant alleges several material changes, including: 1) new uninformed plea and ineffective assistance of counsel grounds of appeal raised by the applicant in his proposed appeal; 2) the fact that the applicant did not realize earlier that he had to explain his delay in bringing an appeal; and 3) new evidence presented by the applicant consisting of a recent hospital report to the ORB that shows his current diagnoses as substance-induced psychosis and polysubstance dependence (in remission), rather than schizophrenia.

[9] I would reject the second and third alleged material changes. I would reject the second alleged change regarding the applicant's lack of awareness of the need to explain his delay because the applicant was represented by appellate counsel in 2016 when the first application for an extension of time was brought and appellate counsel certainly would have been aware of the need to address the delay in filing an appeal. I add that there is no allegation that first appellate counsel provided ineffective assistance to the applicant. I would reject the third alleged change regarding the fresh evidence of the applicant's current medical status, as it is not sufficiently clear on its face that the fresh evidence could overcome the expert evidence on the applicant's state of mind at the time of the offences. As the Crown argued, the fresh evidence sheds light on the applicant's current diagnosis, but that does not necessarily mean the diagnosis in 2013 was in error. This is not to say that the applicant could not succeed on this ground of appeal on a full record if the appeal moves forward.

[10] I would accept, however, that the applicant has raised a material change by identifying new grounds of appeal with respect to his allegedly uninformed plea and the allegedly ineffective assistance of counsel.

[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), 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.

[13] In my view, the emergence of a basis to argue ineffective assistance of counsel and the potential absence of an informed plea in this case constitute the kind of rare circumstances that satisfy the material change requirement for the purpose of being able to renew the application for an extension of time. Indeed, I note that MacFarland J.A., in dismissing the first application in 2016, concluded in her endorsement that "[w]here Mr. Ahmed was represented by counsel and in the absence of any allegation of ineffective assistance thereof – the application for an extension of time is dismissed": Ahmed 2016, at para. 13 (emphasis added). As the emphasized passage suggests, MacFarland J.A. left open that the decision on the application could have been different in light of an allegation of ineffective assistance of counsel.

The extension of time factors favour granting the extension of time

[14] Having concluded that there has been a material change sufficient to reopen the issue of whether an extension of time is justified, I turn now to the factors to be considered in such an application. In my view, they support granting an extension of time.

1. The delay

[15] While there is generally significant leeway afforded in NCR appeals with respect to the intention to appeal and explaining delay factors from R. v. Trudel (22 October 2013), M41426 (Ont. C.A.), the Crown argues the applicant is in a different position because he clearly formed an intention to appeal in 2016 when he brought his first application. This, in the Crown's view, is the proper date from which the applicant should have to explain his delay. The Crown points out that even if one accepts that the clock should only start in December 2022, when the applicant retained second appellate counsel who identified the uninformed plea ground of appeal, this still leaves a significant period of delay totaling nearly three years for which the applicant has to account. The Crown also notes that if one starts the clock at the latest date possible, when the applicant received Legal Aid funding in April 2024, this still leaves a period of 16 months of delay.

[16] While such a long delay in seeking an extension of time can well be fatal in this type of application, NCR cases have been recognized as an exception to this general proposition. In R. v. H.M., 2020 ONSC 7496, at para. 15, Verner J. noted, after reviewing the case law in the field, that it is "not uncommon for NCR appeals to be heard years after the NCR verdict was entered". I agree with Verner J.'s summary of the case law that the "focus in NCR cases should be on the merit rather than on the delay": H.M., at paras. 11-14.

[17] This application arguably took longer than it should have to be brought, but I would not accept that the delay is unexplained. Until second appellate counsel was retained in 2022, I accept that the applicant would not have known he had grounds of appeal beyond the misdiagnosis ground that was rejected in the first application as lacking merit. In his affidavit, the applicant states that since 2022, he has done what he could to pursue an appeal, and this position is not challenged by the Crown.

2. The merits

[18] I turn now to the merits, which are particularly important in the context of NCR cases following a long delay: Mitchell, at paras. 7-8. Courts have often applied a low threshold for demonstrating that the appeal has merit in NCR appeals. In Trudel, for instance, Rosenberg J.A. granted the application to extend the time for filing a notice of appeal despite finding that there were "significant difficulties" with her grounds of appeal: at paras. 38-42.

[19] If the application is granted, the applicant proposes three grounds of appeal. First, the applicant argues his guilty plea was uninformed. Second, he argues that the NCR designation process was procedurally deficient and unfair. Third, the applicant argues his consent to an NCR disposition was due to ineffective assistance of counsel. Fourth, on the basis of fresh evidence, he argues that he was misdiagnosed in 2013 with a mental illness, such that his NCR finding was a miscarriage of justice.

[20] The Crown argues that the ground of appeal relating to the misdiagnosis underlying the NCR designation was raised before MacFarland J.A. in 2016 and was found to lack merit. The Crown's position with respect to the fresh evidence suggesting a diagnosis of substance abuse related psychosis, rather than schizophrenia, as noted above, is that this relates to the applicant's diagnosis today, and does not displace the expert evidence underlying the joint submission seeking the NCR designation in 2013.

[21] The Crown accepts that if the applicant's evidence is found credible, the grounds of appeal relating to an uninformed plea and ineffective assistance of counsel could have merit but raises concerns with the credibility of the applicant and the absence of corroborating evidence.

[22] While I agree that the merit of the grounds of appeal of an uninformed plea and ineffective assistance of counsel may well turn on the applicant's credibility, I am not prepared at this preliminary stage to conclude the applicant's grounds of appeal lack merit for purposes of this application. Ultimately, it is for the panel hearing the appeal to make these credibility assessments with the benefit of a full record, including the sworn and cross-examined evidence of trial counsel.

3. Prejudice

[23] The Crown argues that it will suffer significant prejudice if this application is granted. First, it argues that responding to allegations of ineffective assistance of counsel will be unduly difficult due to the passage of time, the fact that trial counsel has retired, and trial counsel's 2020 destruction of notes and records from the relevant period. Second, the Crown argues that the passage of time would unduly hamper the Crown's ability to prosecute the applicant again if a new trial is ordered.

[24] While I agree that the Crown will suffer real prejudice if an extension of time is granted, I am not persuaded this prejudice would justify dismissing the application.

[25] First, the applicant retains the burden of establishing an uninformed plea and the ineffective assistance of counsel. To this end, the passage of time and destruction of trial counsel's records may make doing so more challenging for the applicant as well. Thus, with respect to the ineffective assistance of counsel ground, the prejudice caused by the passage of time cuts both ways.

[26] Second, the difficulties of retrying a person many years after the initial trial are inherent in the unusual circumstances of NCR cases involving a long delay in moving for an extension of time. I note that in H.M., referred to above, Verner J. granted an application to permit an extension of time 13 years after the applicant's NCR finding, while acknowledging the Crown's argument that it would be prejudiced if the application were granted "to the extent that they would likely not be able to prosecute the Applicant again": H.M., at paras. 20-21. Thus, these inherent difficulties cannot operate as a bar to granting an extension of time where the applicant has raised arguable grounds of appeal.

4. The interests of justice

[27] I accept that the Crown will be prejudiced by granting this application, but notwithstanding these very real concerns, I conclude that, in light of the possibility that the applicant's NCR designation was improper, the interests of justice lean toward granting the application.

Disposition

[28] The application for an extension of time is granted. The applicant shall have until September 30, 2025, to file a notice of appeal.

"L. Sossin J.A."