Law360 Canada (September 18, 2026, 10:39 AM EDT) --
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| John L. Hill |
A criminal conviction is not an ordinary judgment. It can take away a person’s liberty for years, and in the most serious cases, for life. That is why there is a strong argument that when reasonable grounds exist to challenge a conviction or sentence, no limitation period should prevent a court from hearing the challenge.
A recent decision of the Nova Scotia Court of Appeal illustrates both the problem with rigid procedural deadlines and the importance of keeping the courthouse door open when a potentially meritorious appeal is at stake.
In
R. v. Willis, 2026 NSCA 57, the court considered the case of Richard George Willis, who was convicted of second-degree murder on Jan. 23, 2024, and sentenced to life imprisonment with no eligibility for parole for 20 years. Willis expressed his intention to appeal both at the conclusion of the proceedings and after his incarceration. Nevertheless, he failed to file his notice of appeal within the prescribed 25-day period.
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In March 2025, Willis sought an extension of time. A chambers judge ultimately refused the application, effectively ending his attempt to appeal his conviction and sentence. The Court of Appeal later granted leave to review that decision. On June 16, 2026, a panel unanimously allowed the review, extended the time and accepted Willis’s notice of appeal.
The case involved more than a missed deadline. Among Willis’s proposed grounds of appeal was an allegation of jury misconduct. During the trial, a juror independently searched the internet for information about Willis’s criminal history and discussed what he had found with other jurors. The trial judge discharged the juror and instructed the remaining jurors to decide the case solely on the evidence presented in court.
Whether the trial judge handled that misconduct properly was plainly a matter for appellate review. The proposed grounds included whether the jury had been tainted, whether a mistrial should have been declared and whether the curative instruction was sufficient. The Court of Appeal held that these issues were arguable.
Another proposed ground was that Willis challenged the 20-year parole ineligibility period. Under s. 675(2) of the
Criminal Code, a person convicted of second-degree murder has an appeal as of right from a parole ineligibility period exceeding 10 years. The Court of Appeal concluded that this also raised an arguable issue. The important point was what the Court of Appeal said about the threshold for allowing an appeal to proceed.
The chambers judge had gone beyond determining whether Willis had raised an arguable issue. She examined the evidence, the trial record and the proposed arguments and effectively considered whether a panel would ultimately allow the appeal.
The Court of Appeal said that was the wrong approach. The established test requires only a realistic ground that, if established, could persuade the appellate court to allow the appeal. It is not the role of the judge deciding whether an appeal can proceed to conduct what amounts to a preliminary hearing on the merits.
That distinction is important. If an accused must effectively prove the appeal before being allowed to have an appeal, the preliminary proceeding begins to look remarkably like the appeal itself.
The court put it bluntly: if applicants were required to make their case substantively at the preliminary stage, every chambers motion could become a full appeal because the applicant would risk losing the right to appeal by not arguing the case in sufficient detail.
The court also dealt with the reason for the delay. Willis’s circumstances included delays in obtaining the trial transcript, the requirement for a legal aid merits assessment, and difficulties associated with his cognitive and literacy capacities. The court found that the chambers judge’s analysis had not taken the complete record into account. Legal aid ultimately concluded that there were arguable issues, and the court concluded that allowing the earlier decision to stand on an incomplete record would itself produce an injustice.
This case offers an important lesson for the administration of criminal justice. The law quite properly imposes procedural deadlines. Courts need finality. Witnesses’ memories fade, records disappear and litigation cannot continue indefinitely without good reason. But finality is not the same thing as justice.
A civil dispute over money may eventually have to end. A criminal conviction, however, carries a fundamentally different consequence. If an individual is imprisoned because of a legal error, a fundamentally unfair trial or an improper sentence, the passage of time does not transform the error into a correct decision.
Indeed, one could argue that the more serious the consequence, the less acceptable it is to allow a procedural deadline to prevent examination of a legitimate challenge.
The
Willis decision does not abolish appeal deadlines, nor does it require that every late appeal be heard. Nova Scotia’s legislation and rules set out a procedure for seeking an extension, and the court emphasized the interests of justice. Section 678(2) of the
Criminal Code, however, expressly provides that a court of appeal or a judge may extend the time for giving notice of appeal “at any time.”
That wording points in the right direction. The better principle is that there should be no absolute limitation period for challenging a criminal conviction or sentence where there are reasonable grounds to believe an injustice may have occurred. That does not mean an accused should automatically receive a hearing decades after a conviction merely by asserting that the verdict was wrong. Courts can and should require a credible basis for the challenge. They can consider prejudice, the reliability of the evidence, the reason for the delay and whether a meaningful hearing remains possible.
Those considerations should determine whether the appeal can be fairly heard, not whether the courthouse door is permanently locked. The Court of Appeal recognized the danger of allowing procedural rules to overwhelm substantive rights. It noted that the purpose of its review procedure was to provide “one last look” to ensure that a decision did not produce an injustice and that substantive rights were preserved.
That philosophy should extend beyond Nova Scotia’s particular rules. The criminal justice system has two competing values: finality and accuracy. Finality matters. But when the state has convicted a person and taken away his liberty, accuracy must ultimately prevail. A deadline is a useful administrative device. It should never become a substitute for justice.
The
Willis case demonstrates why. Willis did not ask the Court of Appeal to declare him innocent. He asked only that he be permitted to advance grounds that the court found were genuinely arguable. The court concluded that the interests of justice required that he be allowed to argue those grounds on their merits.
That should not be an extraordinary proposition. When there is a reasonable basis for questioning a criminal conviction or sentence, justice should not come with an expiry date.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He 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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