Daniel O’Connor

The Ontario Court of Justice dismissed Javier Ibarra’s application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time.

The total delay from charge to trial was 536 days (17.6 months), below the Jordan presumptive ceiling of 18 months for provincial court cases.

After deducting 103 days of defence-caused delay, the net delay was 433 days (14.2 months).

The court found that the defence did not make sustained efforts to expedite the trial, notably delaying the setting of trial dates and failing to adapt to the Jordan-Compliant Scheduling Practice Direction implemented in November 2023.

The application was dismissed as the delay was not unreasonable and did not meet the high threshold for a stay under the Charter.

The accused, Nosakhare Ohenhen, faced a retrial for seventeen offences including assault police, resisting arrest, firearm possession, and drug trafficking.

He challenged the admissibility of evidence, alleging breaches of his Charter rights under ss. 8 (unreasonable search and seizure), 9 (arbitrary detention), and 10(b) (right to counsel).

The court found the police officers' evidence to be neither credible nor reliable, noting numerous inconsistencies, lack of recall, and potential collusion in note-taking.

The court concluded that Ohenhen was arbitrarily detained without articulable cause, subjected to unreasonable searches of his person and vehicle without a warrant, and repeatedly denied his right to counsel.

Applying the R. v. Grant analysis, the court deemed the Charter violations egregious and committed in bad faith, strongly favoring the exclusion of evidence.

Consequently, all evidence was excluded, and Ohenhen was acquitted of all charges.