COURT OF APPEAL FOR ONTARIO
Pepall, Coroza and Dawe J.J.A.
BETWEEN
His Majesty the King
Respondent
and
Waqas Qureshi
Appellant
Parmbir Gill and Saman Wickramasinghe, for the appellant
Charmaine M. Wong, for the respondent
Heard: April 30, 2025
On appeal from the conviction entered by Justice Bruce W. Duncan of the Ontario Court of Justice on September 26, 2023.
Coroza J.A. :
I. Overview
1The appellant was convicted of multiple firearm offences involving the possession of a handgun and ammunition. Before trial, he brought an application claiming that his s. 11(b) right under the Canadian Charter of Rights and Freedoms had been breached because the anticipated end date of his trial exceeded the presumptive ceiling of 18 months applicable to provincial court matters: see R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631.
2The trial judge found the total delay in this case to be 680 days, from the date that the information was sworn (September 24, 2021) to the anticipated last day of trial (August 4, 2023). [1] However, after deducting a 144-day period running from March 13 to August 4, 2023 as defence delay, the trial judge found that the net delay in this case was just below the 18-month presumptive ceiling. Accordingly, he dismissed the application. [2] The appellant’s trial proceeded, and he was convicted of the offences.
3This appeal turns on whether the trial judge erred in his characterization of the 144-day period between March 13 and August 4, 2023 as defence delay alone. The appellant argues that the trial judge ignored other relevant circumstances in assessing whether the defence was the sole cause of the delay, thus failing to follow the approach set out in R. v. Hanan , 170 O.R. (3d) 240. The appellant submits that the net delay in this case remains above the 18-month ceiling.
4For the reasons that follow, I would allow the appeal. The trial judge erred because the 144-day delay was not solely attributable to the defence. The net delay remained over the 18-month ceiling and was presumptively unreasonable.
5The respondent argues that even if the trial judge erred, this court ought to deduct other specific periods as either defence delay or discrete events amounting to exceptional circumstances. I do not accept these submissions. Consequently, I would set aside the convictions and enter a stay of proceedings.
II. facts
6A chronology of events is necessary to provide context for my analysis.
7The information was sworn on September 24, 2021.
8On November 1, 2021, the Crown provided the defence with initial disclosure and a charge screening form, naming the assigned Crown and inviting defence counsel to schedule a Crown pretrial (“CPT”). Defence counsel requested an adjournment to January 7, 2022 to review the disclosure. The adjournment was granted.
9A CPT proceeded on January 11, 2022. Following the CPT, the Crown emailed defence counsel with an update on outstanding disclosure. Defence counsel responded and indicated that a report from the Centre of Forensic Sciences (“CFS”) was the most important piece of disclosure and was necessary to have a meaningful judicial pretrial (“JPT”). [3] On March 11, 2022, defence counsel indicated in court that he had received more disclosure from the Crown but was still awaiting “an outstanding CFS report”. On May 2, 2022, the Crown emailed defence counsel and told him that the CFS report may “take a few more months” due to backlog from the COVID-19 pandemic. The Crown advised that he was content to keep waiting for the CFS report if s. 11(b) was “not an issue”, but if it was, he suggested conducting a JPT and setting tentative trial dates. Defence counsel responded that delay was “definitely a live issue” and agreed to proceed with the JPT.
10On May 6, 2022, new defence counsel was retained. Following his retention, the parties set a JPT for June 24, 2022. After the JPT, the parties met with the trial coordinator on July 21, 2022. Two sets of dates were offered: the first set ended on November 27, 2023 (eight months beyond the Jordan ceiling) and defence counsel was unavailable; the second set ended on December 11, 2023 (upwards of nine months after the Jordan ceiling), and these dates were accepted. [4]
11On September 2, 2022, the Crown wrote to defence counsel to remind him to advise of any s. 11(b) concerns. If s. 11(b) was at issue, the Crown indicated they could canvass earlier dates. Defence counsel answered that same day that “delay in this case is definitely an issue.” The Crown then asked whether defence counsel “intend[ed] to actually file” a Jordan application, in which case they should try to find earlier dates. Defence counsel responded and said he was “happy to canvass other dates whenever you can; just let me know.” The Crown did not respond.
12On December 13, 2022, a different Crown wrote to defence counsel to indicate that this case had been flagged as a priority and offered a block of earlier trial dates on March 6-10 and 13, 2023. These dates were just shy of the Jordan ceiling. Defence counsel declined these dates because he had “trial days […] booked in other jurisdictions” and suggested that the dates were not “realistic in any event” on account of filing requirements and inadequate preparation time.
13On December 16, 2022, defence counsel proposed trial dates on March 22-24 and 27-30, 2023. The Crown responded that he suspected that those dates were unavailable to the court. The trial coordinator, who was copied on their correspondence, did not respond.
14On January 16, 2023, defence counsel requested a date for a s. 11(b) application hearing. The date of March 30, 2023 was set for that purpose.
15On January 23, 2023, the Crown offered the following seven blocks of trial dates to defence counsel:
April 17-21 and 24;
May 1-4 and 16-17;
May 1-5 and June 5;
May 16-19 and June 12-13;
June 5-9 and 12;
June 12-16 and 19; and
April 3-6 and June 26-27.
16Defence counsel advised that he was in “full week or part [week] trials on each of these blocks” but indicated that he could accommodate the dates of June 26-30, 2023 if he could obtain an adjournment for a different trial scheduled for June 26-27. The Crown replied that the final trial date would need to be August 4, 2023 because of the judge’s schedule. Defence counsel advised that August 4, 2023 conflicted with a family vacation but ultimately decided to change those plans, accepting August 4, 2023 as the final trial date.
III. Decisions Below
a. First s. 11(b) Ruling: 2023 ONCJ 189
17On April 16, 2023, the trial judge delivered his first s. 11(b) ruling.
18The trial judge found that the total delay was 680 days (September 24, 2021 to August 4, 2023). The presumptive ceiling was reached on March 24, 2023. However, the trial judge deducted a 144-day period running from March 13 to August 4, 2023 as defence delay. This resulted in a net delay of 536 days, which fell below the Jordan ceiling.
19The trial judge noted that the initial trial dates were set on July 21, 2022. However, he found that “no steps were taken … by either party” until the case was flagged as a priority in mid-December 2022. It was at that time that the early-March 2023 dates were offered, but defence counsel was unavailable on account of a trial in another jurisdiction. The trial judge also observed that on January 23, 2023, the Crown offered seven more blocks of dates. He noted that it was “mildly interesting” that all these dates were beyond the Jordan ceiling but found that this was insignificant “since they do not reflect net delay”.
20The trial judge found that the defence was solely responsible for the 144-day period running from the last date of the first block of dates offered (March 13, 2023) to the anticipated last day of trial (August 4, 2023). The trial judge observed that defence unavailability amounts to defence delay, assuming the Crown and the court are available. He held that the only exception to this rule is when the date offered is too soon for defence counsel to prepare. Accordingly, he focused on whether the 80-day time period between December 16, 2022 and March 6, 2023 was sufficient time to prepare. He concluded that it was, finding that “the defence was required to accept the March [2023] dates offered in December or accept the consequences.”
21The trial judge found that it was fair for the defence to be saddled with the full 144-day delay because, in his opinion, “other features of the over-all Jordan framework are skewed in the defence[’s] favour”. He acknowledged that the Supreme Court’s decision in R. v. Boulanger , 2022 SCC 2 , [2022] 1 S.C.R. 9, provided for “a more flexible approach” in some cases, but found this to be warranted only where “there were additional causes of the delay besides defence unavailability”. The trial judge found that it was also fair to attribute the entire 144-day period to the defence, in part because the defence declined seven other blocks of dates offered by the Crown. Thus, defence counsel’s unavailability “was not an isolated instance”.
22The trial judge rejected the argument that the Crown had contributed to delay on the basis that it did not seek to reschedule the trial until December 2022. According to the trial judge, even if the Crown’s inaction had an impact on delay, this impact was limited to the period “before the offer of dates on December 16” and it “did not cause or contribute to delay after the March dates were declined”.
b. Second s. 11(b) Ruling: 2023 ONCJ 202
23Following the release of Hanan in May 2023, the trial judge invited the parties to make further submissions on the s. 11(b) application. Having reconsidered the matter, the trial judge delivered a second ruling on May 16, 2023, affirming his earlier decision.
24Much of the trial judge’s decision focused on Hanan ’s express rejection of a bright-line approach whereby the defence is responsible for any delay resulting from its unavailability.
25The trial judge then proceeded to find that Hanan had not changed his view of the 144-day period of delay. He found that defence counsel was misguided in pointing to “other delays caused by the Court or Crown at other times in the history of the case.” He concluded that his earlier ruling was “consistent with the law as stated in Hanan ” and that defence counsel’s unavailability for the early-March 2023 dates “was the sole and direct cause of the delay thereafter”. Therefore, in his view, the case remained under the ceiling. The trial then proceeded, and the trial judge ultimately convicted the appellant. [5]
IV. grounds of appeal
26This appeal turns on whether the trial judge erred by deducting 144 days as defence delay. For its part, the respondent submits that the appeal should be dismissed because the trial judge did not err, but even if he did, the delay was still reasonable because there was other defence delay or discrete exceptional circumstances that this court ought to consider.
V. analysis
a. Foundational Principles and Standard of Review
27The framework for assessing unreasonable delay post- Jordan is well established. It was first summarized by this court in R. v. Coulter , 2016 ONCA 704 , 133 O.R. (3d) 433, at paras. 34-40 :
34Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ).
35Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ).
36Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ).
37If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ).
38Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ).
39If the Remaining Delay exceeds the presumptive ceiling , the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ).
40If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [Emphasis in original.]
28The trial judge’s findings of fact are owed deference, but his legal analysis, including his determination that the 144-day period in question was entirely defence delay, is assessed on a correctness standard: R. v. Jurkus , 2018 ONCA 489 , 363 C.C.C. (3d) 246, at para. 25 , leave to appeal refused, [2018] S.C.C.A. No. 325, R. v. Pauls , 2020 ONCA 220 , 149 O.R. (3d) 609, at para. 40 , aff’d R. v. Yusuf , 2021 SCC 2 , [2021] 1 S.C.R. 5, at para 2 .
b. Did the trial judge err by deducting 144 days as defence delay?
29The appellant focuses on the trial judge’s decision to subtract 144 days of defence delay from the total delay. The crux of the trial judge’s reasoning is that the rejection of the Crown’s offer of earlier trial dates was defence delay because, following Jordan , “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not”: Jordan , at para. 64 . On his analysis, that is what happened here with respect to the several dates that were offered.
30For ease of reference, the relevant excerpt from his second s.11(b) ruling explaining his characterization of the 144-day period as defence delay is reproduced below:
It should be emphasized that the focus is on the particular period. It is not to the point for the defence to point to other delays caused by the Court or Crown at other times in the history of the case. For example, delays in disclosure that caused the case to stall or delays in the Court/Crown offering priority dates are not relevant to this particular issue. I double-down on what I said in my initial reasons in this case:
The defence argues that there was an "additional cause" in this case in that the Crown did not seek to reschedule this case until December 2022 when it had been known and discussed between counsel as early as July and September 2022 that delay was a problem.
It is not known why there was this delay . It may have been that there simply were no available dates to offer before December (when four additional judges were appointed to Brampton). But even if the Crown inaction was the result of a less benign explanation, its impact was on delay that occurred before the offer of dates on December sixteen. It did not cause or contribute to delay after the March dates were declined due to defence counsel's unavailability .
In conclusion, it is my view that my earlier reasons and ruling are consistent with the law as stated in Hanan . The defence unavailability in March was the sole and direct cause of the delay thereafter to the present anticipated trial date. There was no other contributing cause . That period is properly considered defence delay. I affirm my earlier decision. [Italic and bold emphasis in original; underlining emphasis added.]
31As I will explain, the trial judge erred in determining that all 144 days from March 13 to August 4, 2023 constituted defence delay. Although, as noted above, he referred to Hanan in his second s. 11(b) decision, he erred in applying Hanan .
32First, the trial judge erred by stating that any Crown delay in offering new dates was irrelevant to the “particular issue” (i.e., assessing whether the 144 days should be deducted as defence delay). The Supreme Court of Canada declined to endorse a bright-line rule in assessing the unavailability of defence counsel and any ensuing delays in Hanan , at para. :
Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” ( Jordan , at para. 66 ). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants ( R. v. Boulanger , 2022 SCC 2 , at para. 8 ). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136). [Emphasis added.]
33The trial judge recognized that the operation of a bright-line rule as set out in Jordan had been reconsidered. But he then found that the Crown’s inaction was not relevant to assessing whether the period should be characterized as defence delay.
34Respectfully, the Crown’s inaction was a relevant circumstance. The Crown only offered the earlier dates on December 13, 2022. By that point, the trial dates that far exceeded the appellant’s presumptive ceiling had been set for nearly five months. The Crown did not offer the seven other blocks of dates (all of which still exceeded the presumptive ceiling) until one week after the defence had scheduled a s. 11(b) hearing. Contrary to the respondent’s submissions, this was not “proactive” on the Crown’s part, and it did not demonstrate “initiative”. On this record, the Crown sat on its hands for months and, to use the language of the Supreme Court, only “kick[ed] into gear” when the appellant’s Jordan ceiling was coming into view: R. v. K.J.M., 2019 SCC 55 , [2019] 4 S.C.R. 39, at para. 81 . The Crown was put on notice multiple times that defence counsel considered delay to be a live issue, but failed to respond to defence counsel’s email indicating that he was “happy to canvass other dates.”
35In sum, the Crown’s inaction for months following this email was relevant. The inaction was one of the circumstances to consider in determining how to apportion this period of delay. Moreover, ignoring the Crown inaction before December 2022 is inconsistent with encouraging criminal justice system participants to take a proactive and cooperative approach with a view to fulfilling s. 11(b)’s important objectives. It is also inconsistent with the principle that the presumptive ceiling dates are not aspirational dates: Jordan , at para. 56 . The Crown should not wait until the 18-month mark is within eyesight before becoming “proactive” to alleviate delay. This type of behaviour “is precisely the sort of normalized indifference towards delay that prompted Jordan ”: K.J.M ., at para. 81 .
36Second, the trial judge erred by finding that even if there was Crown inaction, its impact was only on the delay that occurred before the offer of new trial dates. This finding ignores evidence that demonstrates that defence counsel was available as early as September 2022 for the March 2023 dates ultimately offered by the Crown. The appellant filed material on the application that showed that defence counsel scheduled a different trial for March 6-7, 2023 on September 6, 2022, more than three months before the Crown offered the block of March 2023 dates. The trial judge does not refer to this material in his reasons. In my view, it shows that the Crown’s inaction in late 2022 affected defence counsel’s ability to be available for the “earlier” dates the Crown would later offer.
37Since the Crown’s offer of earlier dates came only on December 13, 2022 (nearly 15 months after the information was sworn), it was not unreasonable for the defence to be booked on other matters for those dates, which were only 80 days away. The same logic holds for the Crown’s offer of seven blocks of dates spanning April-June 2023, made on January 23, 2023 (16 months after the information was sworn). It was both reasonable and unsurprising that defence counsel would already be booked for other matters that conflicted with these blocks.
38Third, the Brampton court’s limited availability was also a relevant consideration to the delay spanning March 13 to August 4, 2023. There would have been no need to reschedule the appellant’s trial had the Brampton court initially offered dates that were within the presumptive ceiling. Instead, the first dates offered by the court fell between eight and nine months beyond the presumptive ceiling. Moreover, the respondent concedes that the counter-offer of late-March 2023 dates by defence counsel was relevant. I agree. It cannot be said that the defence was “unavailable for an unreasonable length of time” after the early-March 2023 dates offered by the trial coordinator, and the counter-offer showed some effort by the defence to get the trial heard in a timely manner. Of course, as noted above, this attempt by the defence to secure dates in March was met with silence by the trial coordinator.
39In sum, following Hanan , the trial judge was required to look at all the relevant circumstances. He did not do so. Instead, the trial judge improperly siloed off the defence unavailability in a manner that was inconsistent with Hanan . It was also not an answer to assert that any unfairness in saddling the defence with the entire 144-day period was reasonable given that other aspects of the Jordan framework were “skewed” to favour the defence. Both the Crown’s inaction in late 2022 and the court’s limited availability should have been accounted for when applying the contextual approach prescribed in Hanan .
c. As the trial judge erred, is the net delay presumptively unreasonable?
40The appellant argues that most of the 144 days of delay between March 13 and August 4, 2023 falls at the feet of the Crown and the trial court. According to the appellant, the Crown and the trial court were responsible for 75 percent of this delay (108 days). He points out, correctly, that even if only 10 percent (14 days) was apportioned to the Crown and the court, the net delay would remain above the ceiling.
41For the reasons above, the Crown’s efforts to reschedule simply came too late, and it was entirely reasonable that defence counsel would be booked on other matters. In the end, I agree with the appellant that the trial judge erred in deducting all 144 days as defence delay. While Jordan itself holds that defence unavailability, when the Crown and the court are available, qualifies as defence delay, the belated Crown action and the court’s relative unavailability must be considered in this case under the contextual approach prescribed in Hanan . That approach leads to the conclusion that the 144 days cannot be attributed as solely defence delay. In the circumstances of this appeal, I am inclined to take the approach adopted in Boulanger , at para. 10 , as well as this court’s decisions in R. v. M.E. , 2025 ONCA 729 , at para. 26 and R. v. Jones , 2025 ONCA 103 , 176 O.R. (3d) 81, at paras. 31-37 , and apportion 50 percent of the March 13 to August 4, 2023 period to the defence. This apportionment results in a net delay that is two months over the Jordan ceiling. The delay is presumptively unreasonable.
d. The respondent’s alternative arguments
42The respondent argues that if the trial judge erred, the appeal should still be dismissed because there are other periods that should be deducted as defence delay or as discrete events amounting to exceptional circumstances, either of which would bring this matter below the ceiling or rebut the presumption of unreasonable delay. Many of these submissions were not pressed in oral argument but I will deal with them briefly.
43Three of the respondent’s alternative arguments are ‘renewed’ arguments, in the sense that they were argued by the Crown below and were either rejected or unaddressed by the trial judge. However, two other arguments are new on appeal. To the extent that the respondent raises truly new issues on appeal, I am mindful that this court has held that this is permitted only exceptionally. The party seeking to raise the issue must show that (i) the evidentiary record is sufficient to allow the appellate court to fully, effectively and fairly decide it; (ii) failure to raise it at trial was not due to tactical reasons; and (iii) denying leave to raise the issue may risk a miscarriage of justice: R. v. Charity , 2022 ONCA 226 , 161 O.R. (3d) 721, at paras 29-35 ; R. v. Mengistu , 2024 ONCA 575 , at para 21 .
44I am far from convinced that a miscarriage of justice could result if this court declines to consider the respondent’s new arguments. Despite this, I address each of the respondent’s arguments below.
i. Whether the 45-day period from November 5 to December 20, 2021 should be deducted because of defence counsel’s delay in setting a pretrial
45The respondent argues for the first time on appeal that this period “could be deducted as defence-caused delay.” It was on November 5, 2021 that the Crown and the court encouraged defence counsel to set a pretrial with the Crown “and maybe even a JPT” before the parties appeared next in court. The Crown who was present that day advised that the CPT could take place with any Crown (and not only with the assigned Crown) and could be held as early as November 16, 2021. Only on December 20 did defence counsel seek a “preliminary CPT” with the assigned Crown.
46The difficulty with this argument is that the trial judge made a factual finding that “th[is] case moved quite quickly” in its early stages. That finding is not tainted by palpable and overriding error. The respondent does not articulate any consequences that flowed from this 45-day period of delay. The reason that defence counsel requested an adjournment until January 7, 2022 was to review disclosure that had just been provided a few days prior. There is no suggestion that defence counsel ought to have carried out this review more quickly or proceeded to a CPT without this review. What little there is in the record to illuminate the period spanning November 5 to December 20, 2021 is insufficient to allow this court to decide fully, effectively and fairly how to treat it for the first time on appeal.
ii. Whether the 14-day period from December 21, 2021 to January 4, 2022 should be deducted as an exceptional circumstance because the assigned Crown was on leave with COVID-19
47The respondent submits that this period should be deducted as a discrete exceptional circumstance. This argument was made by the Crown below, but the trial judge did not address it in his reasons. I do not accept this submission because there is simply no evidence that the assigned Crown’s illness delayed the progress of this matter. There is no evidence that any CPT, JPT or other court dates had to be cancelled because of the illness or that the case otherwise came to a standstill. In fact, there is some indication that the assigned Crown continued to work on the file during this period, as evidenced by the December 28, 2021 email that he sent in response to defence counsel’s request for a preliminary CPT. In any event, even if one were to deduct 14 days on the basis that the assigned Crown’s illness amounted to an exceptional circumstance, this would not affect the result.
iii. Whether the 112-day period from January 11 to May 3, 2022 should be deducted because of defence counsel’s delay in setting the JPT
48The respondent asks this court to overturn the trial judge’s decision in the first s. 11(b) ruling that this period could not qualify as defence delay. The trial judge reached this conclusion on the bases that (i) it was reasonable for the defence to await the CFS report before proceeding to the JPT; and (ii) the Crown bore “primary responsibility for the disclosure chain breakdown” as a result of which it was unaware that the CFS report had been available since December 2021.
49The respondent argues that “disclosure need not be complete for the accused to take the next step and elect their mode of trial or set trial dates” and that, “ultimately, the parties were entirely capable of completing the judicial pretrial discussions without [the CFS report]”. The respondent disputes the appellant’s contention that both counsel below agreed that this report should be disclosed before proceeding to a JPT.
50I see no merit to this argument. The trial judge noted that the CFS report “would have a pivotal bearing on the strength of the case and the decisions that the defence would have to make”. The respondent has not disputed the importance of this piece of disclosure or the Crown’s responsibility for the disclosure breakdown. The trial judge clearly would not have saddled the defence with the delay given the revelation that the report had been available to the Crown throughout this time period. The Crown bore responsibility for the delay across January 11 to May 3, 2022 by virtue of failing in its disclosure obligations.
iv. Whether the 43-day period from July 21 to September 2, 2022 should be deducted as defence delay because of the change in counsel
51This issue was not litigated in the court below and is therefore brand new on appeal. The respondent does not advance an argument about it so much as recount some procedural history and make a conclusory assertion. Again, the respondent does not articulate how the change in counsel caused any delay and, in any event, new defence counsel responded to the assigned Crown to indicate that the defence had already flagged s. 11(b) as an issue. This court is poorly placed to determine this new issue fully, effectively and fairly. What little there is in the record does not establish that it should qualify as defence delay.
v. Whether some unspecified amount of time should be deducted for the exceptional circumstance posed by the pandemic backlog
52The respondent argues that some unspecified amount of time should be deducted for pandemic backlog delay, noting that the trial judge did not have the benefit of this court’s decision in R. v. Agpoon , 2023 ONCA 449 , 167 O.R. (3d) 721, leave to appeal refused: [2023] S.C.C.A. No. 477. The respondent submits that the impact of the pandemic on the entire criminal justice system in Ontario, and in Brampton in particular, including its effect on the trial backlog, should be taken into account as an exceptional circumstance that could justify any excess net delay above the presumptive ceiling.
53I am mindful that Agpoon encourages trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances” in determining whether some deduction is warranted for pandemic backlog delay: Agpoon , at para. 26 , citing Jordan , at para. 89 . Here, the experienced trial judge made no observations about the impact of the pandemic in generating a backlog of cases in Brampton. His sole remark that this case was “brought in the shadow of a pandemic” was made in the context of finding that a sub-ceiling stay was inappropriate. He made this finding primarily because he was “unable to conclude that the case took or [would] take markedly longer than it should have.” In my view, the respondent cannot anchor its submission to this comment and suggest the trial judge thought the pandemic caused delay in this matter.
54This court has held that “there is no rule that all periods of delay during the COVID-19 pandemic, including those resulting from scheduling backlogs, should be attributed to exceptional circumstances”: R. v. Kirkopoulos , 2024 ONCA 596 at paras. 45-47 . This court has also said that “[t]o be subtracted as exceptional, delay must be attributable to the pandemic in some articulable sense ”: R. v. Kovacs , 2025 ONCA 49 , 175 O.R. (3d) 401, at para. 14 , Jones , at para. 55; R. v. K.D. , 2025 ONCA 639 , at para. 61 . The respondent has not articulated such a link, and nothing in the trial judge’s reasons establishes one.
55The respondent does emphasize the Crown’s efforts to “mitigate” the delay that, in its view, resulted from the pandemic’s impact on the courts. The respondent cites the Crown’s “initiative” in offering “nine [sic] blocks of ‘priority trial dates’ between March and June 2023 in order to complete the trial earlier than … December 2023”. Again, for the reasons I have already given, these efforts by the Crown were anything but proactive, given their belated timing. There is also no indication that these efforts were a response to pandemic-caused delay. I am not persuaded by this submission.
VI. Conclusion
56The Crown’s conduct in this matter was not “proactive”, nor did it exemplify “initiative”. The Crown only offered the March 2023 dates on December 13, 2022 even though, by that point, trial dates that far exceeded the appellant’s presumptive ceiling had been set for nearly five months (i.e., on July 21, 2022). The Crown did not offer its seven other blocks of dates – all of which exceeded the presumptive ceiling – until one week after the defence had scheduled a s. 11(b) hearing. Accordingly, the Crown shares some responsibility for the delay from March 13 to August 4, 2023; its inaction in the latter half of 2022 had an impact on the defence’s ability to be available for the dates offered. The limited court availability also formed part of the circumstances relevant to the disputed period. The defence should not have been saddled with the entirety of the 144 days of delay. Viewed holistically, and taking all relevant circumstances into account, this case remained over the Jordan ceiling and the trial judge erred by dismissing the appellant’s application.
VII. Disposition
57For these reasons, I would allow the appeal, set aside the convictions and enter a stay of proceedings.
Released: January 16, 2026 “S.E.P”
“S. Coroza J.A.”
“I agree, S.E. Pepall J.A.”
“I agree, J. Dawe J.A.”
1The appellant’s presumptive Jordan ceiling was reached on March 24, 2023; this was 546 days after the swearing of the information. The trial judge calculated the ceiling as totalling 549 days, using the figure of 30.5 days for an average month and multiplying it by 18. The discrepancy between these totals has no impact on the outcome of this appeal.
2The trial judge found himself “unable to conclude that the case took or [would] take markedly longer than it should have” and accordingly declined to find unreasonable delay below the ceiling (“[e]ven assuming that the defence ha[d] been sufficiently diligent to satisfy the meaningful steps requirement”): see Jordan , at para. 48 .
3The CFS report was ordered for purposes of analyzing the firearm and shell casing at issue in this case for DNA and fingerprints.
4The parties had agreed that six days of trial were required.
5In his notice of appeal, the appellant claims other grounds of appeal, but these grounds were not advanced in oral or written submissions. Accordingly, it is not necessary to say anything further about them.