Background
The appellant, M.A., is self-represented and has five criminal appeals pending in the Ontario Court of Appeal’s inmate appeal stream. Four of those appeals — arising from separate trials on charges of sexual assault, sexual interference, indecent exposure, and possession of child pornography — were grouped together for argument. Convictions and sentences in those matters were imposed between 2020 and 2022. Since 2022, M.A. had been pursuing an existing ineffective assistance of counsel (“IAC”) claim in two of the grouped appeals (C70029 and C70758), targeting two lawyers who acted as co-counsel at those trials. Cross-examinations in connection with that existing IAC claim were completed in December 2025, finally clearing the way to schedule all four grouped appeals for hearing.
In January 2026, M.A. served new Notices of Appeal seeking to raise a fresh IAC claim in three of the four grouped appeals (C70758, C70843, and C70883). This new claim targeted a different trial counsel and, in broad terms, alleged that counsel failed to use documents from Crown disclosure — including the appellant’s driver’s licences, criminal record, and credit applications — that M.A. contended would have supported an alibi defence, and that counsel failed to retain an expert in the possession of child pornography matter. A panel directed the appellant to seek leave to add the new ground, and the matter came before Zarnett, Copeland, and Dawe JJ.A.
M.A. also opposed the Crown’s request to ungroup the appeals if leave were granted, insisting that all four appeals remain linked so that none could proceed to argument until all were ready. Amicus curiae Daniel Brodsky assisted the court in the presentation of argument.
The Court’s Holding
The court dismissed the motion and struck the new Notices of Appeal. Applying a two-part framework, the panel held that leave to add a new ground of appeal long after the original appeal was launched may properly be refused where (1) there is no reasonable explanation for the delay in raising the new ground, and (2) allowing it would cause significant further delay in resolving the appeal. Both factors weighed decisively against M.A. On the first factor, the court rejected M.A.’s explanation that he only discovered a basis to criticize counsel’s failure to use documents such as his driver’s licences upon learning in July 2025 that those documents were in the Crown’s Blue Bin disclosure. The court found that copies of those types of documents were clearly available to the appellant from other sources at an earlier point. Even accepting July 2025 as the discovery date, the court found the claim was not raised in a timely fashion: M.A. had inmate appeal attendances in July, December 2025, and January 2026, yet did not raise the new claim until January 22, 2026.
On the second factor, the court noted that adding the new claim would require initiating the IAC Protocol from scratch for a different counsel, inevitably causing at least a further year of delay — an estimate the Crown offered and the appellant did not challenge. The court also found it unreasonable for M.A. to have waited until the existing IAC Protocol was nearly complete before surfacing a new IAC claim, given that he was well aware of the cascading delay effect the grouped appeals structure created.
As an ancillary matter, the court ordered the grouped appeals scheduled in the solicitors appeal stream, given the expected length of oral argument and the involvement of amicus. It directed factums to be filed at least thirty days before hearing by the appellant and at least fifteen days before hearing by the Crown, with the appellant permitted to file amended factums incorporating his arguments on the existing IAC claim.
Key Takeaways
- An appellate court has jurisdiction to deny leave to add a new IAC ground of appeal where the appellant cannot provide a reasonable explanation for the delay in raising it and where adding the claim would cause significant further delay to already long-pending appeals.
- An appellant cannot credibly claim that documents routinely available from personal sources (driver’s licences, criminal records, credit applications) were only discoverable upon reviewing Crown disclosure; such a characterization will not satisfy the “reasonable explanation” requirement.
- Strategic timing — waiting until steps under the IAC Protocol for one claim are nearly complete before introducing a separate IAC claim against different counsel — will be treated as an unreasonable delay, not a legitimate sequencing of proceedings.
- Where grouped appeals are held back by one appellant’s procedural manoeuvring, the court retains flexibility to impose scheduling orders that protect against indefinite delay across all grouped matters.
Why It Matters
This decision reinforces the Ontario Court of Appeal’s willingness to use its case management powers to curtail IAC claims that appear designed to manufacture delay rather than address genuine trial-level deficiencies. For criminal defence practitioners and their incarcerated clients, the ruling makes clear that the inmate appeal stream is not a forum of indefinite procedural opportunity: IAC claims must be identified and initiated promptly, and awareness of the necessary protocol steps is no excuse for sitting on a new claim while an earlier one matures.
The case is also a practical reminder that the grouping of appeals, while administratively convenient, creates serious vulnerability for co-appellants or, as here, for the same appellant across different matters. Courts will not allow a single procedural gambit in one grouped appeal to hold all others hostage indefinitely, and will instead impose firm scheduling structures to ensure that justice is not perpetually deferred.