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| John L. Hill |
In 2013, Ahmed Ahmed pleaded guilty to two counts of aggravated assault but was found not criminally responsible (NCR) by reason of a mental disorder. Aside from two brief periods in 2017 and 2018 when he returned to the community, Ahmed has been detained in a hospital.
He attempted to appeal the 2013 verdict in 2016, arguing he was misdiagnosed. He claimed that cocaine use, not mental illness, was the cause of his behaviour. Nonetheless, he was refused an extension to file a notice of appeal.
New counsel was retained. Ahmed once again sought to appeal the verdict. A motion to extend the time was heard by Court of Appeal Justice Lorne Sossin on Sept. 12, 2025 (R. v. Ahmed, 2025 ONCA 650).
The hurdle Ahmed faced was the task of convincing the motions judge that the interests of justice warranted the
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(1) whether Ahmed had shown a bona fide intention to appeal within the appeal period;
(2) whether he had accounted for or explained the delay;
(3) whether his proposed appeal had merit; and
(4) whether there was any prejudice to the Crown.
(2) whether he had accounted for or explained the delay;
(3) whether his proposed appeal had merit; and
(4) whether there was any prejudice to the Crown.
Ahmed demonstrated that there was a significant change in circumstances and that he met the Ansari conditions. This enabled Justice Sossin to approve his application. The motions judge clarified that Ahmed qualified on his second attempt to file a notice of appeal because he was able to show a material change in circumstances, including that his plea of guilty was uninformed due to ineffective assistance of counsel at his trial.
How can ineffective representation at trial be considered a material change in circumstances? Justice Sossin explained that this was one of the rare cases where a rearticulation of arguments previously made supplemented by a new ground of appeal can amount to a material change in circumstances. Justice Bora Laskin in R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.) allowed this in a bail pending appeal case. There is no reason why a similar approach cannot be used to file an appeal extension when the change of circumstances affects the public interest inquiry.
In deciding whether there had been an unexplained delay in filing the appeal, the motions judge referred to R. v. H.M., 2020 ONSC 7496, where it was explained that in NCR cases, the focus should be on merit rather than delay. Ahmed’s application took longer than it should have to be brought, but the delay can be explained. A second appellate counsel was retained in 2022. It was not until then that Ahmed would have known that he had grounds of appeal beyond the misdiagnosis ground that was rejected in the first application as lacking merit. In his affidavit, Ahmed maintained that since 2022, he has done everything possible to pursue an appeal, and the Crown does not challenge this position.
While the grounds argue that Ahmed made an uninformed plea and received ineffective assistance of counsel, which will test Ahmed’s credibility, it is the appeal panel, not a motions judge, that must decide that. Although the Crown cites prejudice — specifically, the difficulty in re-prosecuting him if his appeal succeeds — as a reason to dismiss the appeal, prejudice affects both sides. Ahmed will face challenges due to the passage of time and the destruction of his trial counsel’s records in proving his case. These inherent difficulties cannot operate as a bar to grant an extension of time where the applicant has raised arguable grounds of appeal.
Despite any prejudice against the Crown, if Ahmed’s NCR designation was improper, the interests of justice lean in favour of granting the application. He will have until Sept. 30, 2025, to file his notice of appeal.
How long is too long to file a notice of appeal? The correct response is the traditional lawyer’s answer: “It all depends.”
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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