Background
Police obtained three search warrants to investigate who uploaded a video through the file-sharing service Dropbox on January 19, 2026, depicting a child being sexually abused — material satisfying the definition of child sexual abuse and exploitation material. Executing those warrants in late January and February 2026, officers searched D.D.’s home and office and seized ten electronic devices. On March 20, 2026, Wojciechowski J. issued an interim order suspending the investigation and barring police from searching the seized devices pending the resolution of D.D.’s certiorari application.
D.D. applied for certiorari to quash all three search warrants. On May 12, 2026, Dunphy J. dismissed that application. D.D. appealed, and before the court was a motion seeking: (1) a stay of Dunphy J.’s dismissal order pending the appeal; and (2) reinstatement of Wojciechowski J.’s interim order, which had arguably lapsed upon Dunphy J.’s decision.
Before reaching the merits of the stay motion, Gomery J.A., sitting as a single motion judge, invited submissions on whether this court — and a single judge of this court — even had jurisdiction to grant the relief sought.
The Court’s Holding
Gomery J.A. concluded that the jurisdictional questions were sufficiently complex and unsettled that they should not be resolved by a single judge acting alone. The analysis canvassed four potential bases of jurisdiction. First, s. 683(1) of the Criminal Code does not list stays as an available order; s. 683(3) may extend the power to grant stays, but that provision speaks to “a court of appeal,” which a prior decision of this court interpreted to mean a panel rather than a single judge. Second, the motion judge expressed serious doubt that provincial legislation — specifically s. 134(2) of the Courts of Justice Act and r. 63.02(1)(b) of the Rules of Civil Procedure — could supplement or expand the court’s jurisdiction in criminal proceedings, a position consistent with the principle that provinces lack constitutional competence to legislate on criminal law or procedure. Third, while r. 21(12)(e) of the Criminal Appeal Rules authorizes a single judge to hear certain stay motions, the court noted that those rules cannot be interpreted to expand jurisdiction beyond what the Criminal Code permits, and the moving party’s disjunctive reading of the rule was questionable on that basis. Fourth, the court’s ancillary jurisdiction to prevent frustration of an appeal may be exercised by a single judge only where a specific statutory or regulatory basis exists — and the gap-filling provision in r. 1(4) of the Criminal Appeal Rules was of doubtful assistance given that r. 21 already addresses which motions a single judge may hear.
Finding itself in “murky jurisdictional waters,” the motion judge followed the precedents in R. v. D.W., 2023 ONCA 638 and R. v. Metro News Ltd. (1985) and referred the entire motion — both the jurisdictional questions and the merits of the stay — to a panel of the court. The motion was adjourned to June 8, 2026, and Crown counsel was asked to have police refrain from searching the seized devices in the interim.
Key Takeaways
- A single judge of the Court of Appeal for Ontario likely cannot grant a stay in a criminal appeal under s. 683(3) of the Criminal Code; that power appears to vest in a panel.
- Provincial procedural legislation, including the Courts of Justice Act and the Rules of Civil Procedure, cannot expand a criminal court’s jurisdiction — particularly after the Criminal Appeal Rules ceased incorporating those rules.
- The court’s ancillary jurisdiction to prevent frustration of an appeal requires a specific statutory or regulatory basis before a single judge may exercise it; r. 1(4)’s gap-filling role is limited where r. 21 already addresses the subject.
- Where single-judge jurisdiction to grant a criminal stay is genuinely uncertain, the appropriate course is referral to a panel rather than a ruling on the merits.
Why It Matters
This decision highlights an important structural gap in criminal appellate procedure: the mechanism for obtaining a stay pending an appeal of a certiorari order — a collateral but consequential step in search-warrant challenges — may require panel-level authorization that is not easily obtained on short notice. Defence counsel challenging search warrants in Ontario must now account for the real possibility that interim relief from a single motion judge is unavailable, making the timing of certiorari applications and appeals especially critical.
The case also reinforces the constitutional divide between federal criminal procedure and provincial court rules. By signalling that neither the Courts of Justice Act nor the Rules of Civil Procedure can fill jurisdictional voids in criminal proceedings, the court narrows the tools available to practitioners seeking expedited relief in criminal appeals — a principle with implications well beyond child exploitation investigations.