Warning and Non-Publication Order
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Case Information
Date: 2025-03-11
Location: Toronto
Court: Ontario Court of Justice
Between:
His Majesty the King
— and —
Adebiyi Adekunle
Before Justice Mara Greene
Counsel:
For the Crown: E. Brosch
For Adebiyi Adekunle: A. Sadro
Reasons for Judgment released March 11, 2025
Background and Facts
1Mr. Adekunle was arrested on August 6, 2023 and charged with one count of sexual assault. The information was laid on August 8, 2023. Mr. Adekunle’s trial was set to proceed on April 22, 2025 and end on April 25, 2025. By the time the trial was scheduled to conclude, more than 20 ½ months would have passed since the information was laid. This is well above the time identified in R. v. Jordan for a trial to complete in the Ontario Court of Justice. Counsel for Mr. Adekunle argued that Mr. Adekunle’s rights as guaranteed by section 11(b) of the Charter have been violated given the excessive delay in this case. He argued that none of the delay in this case falls at the feet of Mr. Adekunle nor can it be justified by any discrete event. The excessive delay in the case at bar is largely due to the original trial Crown’s failure to move this matter forward in a timely fashion. Crown counsel, on the other hand, argued that while the time to trial in this case is long, over four months of the delay was caused solely by Mr. Adekunle. This reduces the overall delay to under 18 months and as such there is no violation of Mr. Adekunle’s right to be tried within a reasonable time.
2On February 25, 2025, I advised counsel that I found that Mr. Adekunle’s right to be tried within a reasonable time was violated. I stayed the charges with reasons to follow.
Summary of the Delay
3The information in the case at bar was laid on August 8, 2023. In the aftermath of being arrested, Mr. Sedro attended court multiple times for Mr. Adekunle. On September 14, 2023 counsel indicated on the record that he was awaiting disclosure. The matter was adjourned again on October 16 to November 20, 2023 as the matter was still in the preliminary stages. On November 20, 2023 Mr. Sedro attended court indicating that a Crown pre-trial was required. A return date of December 18 was recommended.
4On this same date, Crown counsel emailed Mr. Sedro asking to set up a Crown pre-trial. She offered dates of November 28, 29 and 30, 2023. Mr. Sedro did not respond until November 30, 2023. Since the dates the Crown had offered had passed, Mr. Sedro asked for an updated list of dates. Crown counsel replied that she was available December 7 and 11. Mr. Sedro replied that he was free on December 11. He provided his phone number so that the Crown could call him for the pre-trial and also asked that the Crown confirm the date once it was booked. The Crown failed to respond to this email and failed to contact Mr. Sedro at the designated time on December 11. On December 13, 2023, Mr. Sedro wrote to the Crown again asking to set the pre-trial. The Crown promptly responded. She apologized for not replying earlier and indicated that she could conduct a crown pre-trial on December 14 or 15. Mr. Sedro responded saying he could make himself available either day at 12pm. The Crown did not contact Mr. Sedro again until December 26 which was 12 days after the December 18, 2023 court appearance. As a result, when the matter returned to court on December 18, 2023, the matter was adjourned again so that a crown pre-trial could be conducted.
5The matter returned to court on January 22, March 25, April 29 and May 27. On each occasion the case had to be adjourned because the crown pre-trial had not been conducted. The delay in conducting the crown pre-trial was solely because the assigned Crown failed to respond to emails from counsel requesting pre-trial dates and when she finally did respond and set a pre-trial date, the assigned Crown failed to attend the pre-trial. On each of the above dates the justice of the peace asked the Crown if they were in a position to elect. On each date the Crown advised that they were not able to make an election. A Crown election was not put on record until October 21, 2024, however, it does appear that at the Crown pre-trial that eventually took place on June 26, 2024 the Crown informed Mr. Sedro that the Crown was proceeding by indictment.
6On June 13, 2024 in response to yet another email by Mr. Sedro seeking the Crown’s availability for a pre-trial the Crown responded suggesting a few dates for a pre-trial or in the alternative suggesting a judicial pre-trial if the matter was going to proceed to trial. Mr. Sedro responded that same day and stated that he wanted to have a crown pre-trial first and asked again for the Crown’s availability. The Crown failed to respond to this email. On June 24, 2024, Mr. Sedro sent another email to the Crown asking for her availability so that a pre-trial could be conducted. On this same date, he attended court and again stated on the record that he was waiting for a crown pre-trial. The Crown in set date court offered to move the case to 807 which is a judge led judicial case management court. Mr. Sedro expressed a desire to continue his attempts to have a crown pre-trial. No real information was provided about the potential benefits, if any, of moving this matter to 807 court.
7The next day, on June 25, 2024, Crown counsel wrote to Mr. Sedro offering to conduct a crown pre-trial on June 26 or June 27. The pre-trial took place on June 26. Shortly after the crown pre-trial, Crown counsel sent a follow up email to Mr. Sedro. In this email she wrote that Mr. Sedro was only retained for resolution discussions and was seeking a resolution by way of peace bond. She further wrote that if the matter is not resolving or if Mr. Adekunle was not waiving 11(b), then a self-represented judicial pre-trial should be scheduled. Crown counsel further wrote that resolution discussions could occur in the background while steps were taken to secure a trial date. Crown counsel also asked for Mr. Sedro to provide some documents from his client and asked how the defendant was going to elect to proceed. On the record before me, this was the first indication that the Crown was proceeding by indictment. Crown counsel’s email ended with a note that a new Crown was taking over the file. The new assigned Crown was included in the email.
8On July 10, 2024, Mr. Sedro sent the Crown the requested documents and stated clearly that his client was “disappointed with how long this process is taking” and that his client is not prepared to waive 11(b). The new Crown responded to this email stating that the first available date for a self-represented JPT was October 16. Mr. Sedro agreed to this date but by the time they went to book the date, it was no longer available, so October 30 was set instead. Due to the delay in this matter, the new assigned Crown and Mr. Sedro attempted to move the JPT date forward. Due to both counsel’s efforts, the JPT was moved forward from October 30, 2024 to August 28, 2024.
9The JPT on August 28, 2024 was conducted in court as Mr. Adekunle was still self-represented. Mr. Sedro was present to assist Mr. Adekunle as he hoped he would get on record. For reasons that neither party could explain, the JPT was not recorded, and no notes were provided. Both counsel agree, however, that there were extensive discussions about resolution and further investigations that the defence wanted the police to conduct. At the close of the JPT, it was agreed that a further JPT would be conducted once the investigations were complete. Crown counsel agreed that at the end of the pre-trial, Mr. Adekunle asked why his trial dates could not be set. Neither party recalled what answer he was given nor could counsel advise why a trial date was not set.
10Over the next month, further investigations took place and additional disclosure was provided to the defence. The Crown was unable to offer a peace bond, and all agreed that this matter had to proceed to trial. Steps were taken to obtain a quick further JPT date with the original judicial pre-trial judge. The matter was brought forward to October 21, 2024 for a further JPT. On November 13, 2024 a trial scheduling conference was booked. Trial and motion dates were set on this day. Motions were scheduled for January and February 2025 and a four-day trial starting on April 22, 2025.
Analysis
11Pursuant to section 11(b) of the Charter, every person charged with an offence has a right to be tried within a reasonable time. In R. v. Jordan, 2016 SCC 27 the Supreme Court of Canada set out the framework for analyzing whether a person’s section 11(b) rights have been violated. In Jordan, the court created presumptive ceilings. Where the delay, less delay waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nonetheless reasonable. Delay beyond the presumptive ceiling will be reasonable if it is caused by a discrete event or if the case is particularly complex.
12In the case at bar Crown counsel argued that there are three areas of delay that were solely caused by the defence. If this delay is deducted from the overall delay, the remaining delay is below the 18-month ceiling and as such there is no violation of Mr. Adekunle’s 11(b) rights. Crown counsel argued in the alternative, that the complex nature of this case justifies the delay in this case.
Delay from November 20 until December 11, 2023
13Crown counsel argued that the delay from November 20, 2023 until December 11, 2023 is delay caused solely by the defence because Mr. Sedro did not respond to the Crown’s email regarding setting a pre-trial date until November 30, 2023. During submissions defence conceded that he did not respond in a timely fashion and that if this caused delay, it was defence delay. While I appreciate Mr. Sedro’s willingness to take responsibility for this delay, when this time is considered objectively, I cannot find that Mr. Sedro’s failure to respond to the Crown from November 20 until November 30 actually caused any delay in this case. This matter was up in court on November 20. The matter was adjourned to December 18 so that a Crown pre-trial could take place. I appreciate that Mr. Sedro did not respond in a timely fashion, but it is not apparent that this actually delayed matters in any way. The next court date was not until December 18, 2023. The Crown had not elected how they were going to proceed, and a pre-trial date was still notionally set for December 11, 2023, a date well in advance of the next court appearance. It is unclear to me what would have happened faster had Mr. Sedro responded earlier to the Crown’s email. I could speculate that perhaps the Crown who completely ignored this file from December 1 until June 26 would have been more attentive in that ten-day window, but that is pure speculation. Perhaps a pre-trial would have occurred earlier, but since the Crown was not even in a position to elect how they wanted to proceed until June 2024, it is difficult to find that an earlier response from Mr. Sedro would have changed anything or that it contributed to the delay in this case at all. In these unique circumstances I cannot find that this ten-day delay in responding to the Crown’s email caused any delay in this proceeding.
Delay from May 9 until May 21, 2024
14Crown counsel further argued that the delay from May 9 until May 21 was also delay caused solely by the defence. On May 9, after the Crown missed a number of pre-trials and failed to respond to requests to reschedule, Mr. Sedro wrote the following email to the Crown:
“I am following up on my emails below from April 3, April 10 and April 29, 2024. I really appreciate you getting back to me asap. This matter is back up on May 27, and I’d like to have a CPT before then.”
15Crown counsel responded later that night as follows:
“Hi, sorry for the delay in responding. I did email you (late march) and was very jammed with a homicide prelim and otherwise in April – my apologies. Is this matter heading towards trial? I am happy to schedule a CPT wit you for the next week after court if there is any chance of resolving? If not, should be just schedule a JPT? Lmk and I will respond asap with dates for either.”
16Mr. Sedro did not respond until May 21 at which time he wrote that he was available “today and tomorrow at 4pm” and “Thursday at 1pm”. The Crown failed to respond to this email. Mr. Sedro wrote again on May 28 asking to set a crown pre-trial as soon as possible. The Crown did not respond to this email until June 12, 2024. Perhaps it is possible that the Crown, who failed to respond to a host of emails between December 11, 2023 and May 9, 2024 and failed again to respond to emails from May 21, 2024 until June 12, 2024 would have been attentive in that 10 day window when she had otherwise effectively ignored this file before and after that window of time. It is possible that had Mr. Sedro responded to the Crown in that short window of time the Crown would have actually replied in a timely fashion in such a manner that the pre-trial would have been set and completed. On the other hand, it is reasonable to infer from the Crown’s failure to respond to the emails in any meaningful way from December 11, 2023 until May 9, 2024 and the Crown’s failure to respond to emails from May 21 and May 28 that the Crown would not have been in a position to conduct a meaningful pre-trial in the 10 days that elapsed from the Crown’s email on May 9 and Mr. Sedro’s email on May 21. I find it highly unlikely that Mr. Sedro’s failure to respond in that 12-day window actually contributed to any delay, but out of an abundance of caution, I will deduct this time frame from the overall delay.
June 26, 2024 until October 4, 2024
17Crown counsel argued that 101 days of delay from the date of the crown pre-trial on June 25, 2024 until October 4, 2024 was delay occasioned for the purpose of resolution and as such was clearly defence delay.
18In R. v. Aly, 2021 ONSC 6753, the Court held that even in the absence of an explicit waiver from the accused, delay caused while in pursuit of a resolution “may constitute implicit waiver” (at para 24). The Court held that “…if the Crown and the defendant engage in resolution discussions, they should not do so under the threat that any delay caused by the discussions would be held against the Crown” (at para 24).
19The Court in Aly went on to state that where the “defendant has unequivocally chosen, for a period of time, to adjourn or delay setting dates for a trial or for other procedural steps in favour of engaging in resolution discussions with the Crown, then the delay occasioned by that choice must be deducted from the total delay for the purpose of a s.11(b) analysis” (at para 26).
20In my view, the facts in the case at bar are significantly different from those in Aly. In the case at bar, the accused explicitly stated that he was NOT waiving 11(b). In the first email after the June 26 pre-trial Mr. Sedro wrote to the Crown stating that Mr. Adekunle was not waiving 11(b) and as such steps should be taken to set a judicial pre-trial and move this matter forward. In light of this, steps were taken immediately to move this case forward with trial estimates by scheduling a self-represented judicial pre-trial. There was no delay occasioned while resolution was discussed. It was agreed that resolution discussions would take place in the background while trial dates were pursued.
21Crown counsel further argued that the August judicial pre-trial was only oriented towards resolution therefore, the failure to set trial dates on that occasion was in aid of resolution and should be deducted from the overall delay. Respectfully, this characterization is not supported by the evidence filed on this motion. I have no evidence about what exactly occurred at the JPT on August 28, 2024. This is because the pre-trial was not recorded, even though it was conducted in a courtroom, and no judicial pre-trial notes were prepared or filed on this motion. I have an agreement by both counsel that at this JPT resolution was discussed as was the need for additional investigation. It was decided that the investigation would take place and that the Crown would advise Mr. Sedro if a resolution was possible. When the matter was adjourned so that this could take place, Mr. Adekunle specifically questioned why a trial date was not being set. Neither the Crown nor Mr. Sedro could recall why, in response to Mr. Adekunle’s comment, trial estimates were not then obtained. This could have easily been done and the Crown could have continued her investigations in the background while awaiting the trial date. There is no evidence before me that Mr. Adekunle, or that Mr. Sedro on his behalf, sought to delay the setting of trial dates to pursue resolution. In fact, the evidence is to the contrary, that Mr. Adekunle wanted to set trial dates on August 28, 2024.
22In my view, when I look at the time frame from June 26 until October 4, 2024, unlike the cases cited by the Crown on this application, Mr. Adekunle expressly stated that he was not waiving his 11(b) rights, actively expressed an interest in setting trial dates, and while he did want to pursue resolution, it was not at the expense of setting trial dates. In my view, there is no reason why trial dates could not have been set while the ongoing investigation and resolution took place in the background. Crown counsel has presented no evidence that this could not have occurred. I note that it is quite common for resolution discussions to take place after trial dates are set. As such, while resolution discussions were taking place during this time frame, I do not find that Mr. Adekunle implicitly waived delay or that this delay was caused solely by the defence. While that may have been one source of the delay, the other reason is that despite Mr. Adekunle’s protests, no one seems to have turned their mind to setting a trial date.
Delay caused because Mr. Adekunle was self-represented
23In the case at bar, Mr. Sedro attended court for Mr. Adekunle from his first appearance until his last court date. He was not, however, properly retained for trial until after the trial date was set. Crown counsel argued that the overall delay in this case should be considered in this light. Crown counsel wrote in her factum that Mr. Adekunle’s failure to alert the Crown to the fact that he had not fully retained counsel was somehow “lying in the weeds”. She argued that since Mr. Sedro was not fully retained until more recently, the delay in this case falls at his feet because he was not ready to set a trial date. Respectfully, I disagree.
24Firstly, I note that if the Crown had actually had a pre-trial on December 11, 2023 when it was first scheduled she would have learned then that counsel was not fully retained. The defendant was not lying in the weeds, the Crown was not available to discuss the case and learn the extent of the retainer in this case until 11 months after the information was laid. It was the Crown’s inattention to this case that delayed her learning the full scope of Mr. Sedro’s retainer. Secondly, it is difficult for those with limited funds to properly assess their needs for counsel when the full scale of their jeopardy is unknown. The Crown was asked consistently by the court if the Crown could elect, and the Crown repeatedly advised that the Crown was not in a position to make an election. Mr. Sedro could not possibly have even told his client what the overall cost would be for the retainer without knowing the Crown’s election. Thirdly, there is no basis to find that this matter would have progressed any faster had Mr. Adekunle advised the court that Mr. Sedro was only retained for preliminary matters. The Crown was still not available to even consider this case and make an election until June 2024 and Mr. Adekunle was clearly willing to move the matter forward on a with or without counsel basis.
25The record in this case clearly establishes that from December 11 until June 26, the Crown’s office completely ignored this file and failed to take steps to move it forward. It is inconceivable to me that this delay could ever be characterized as delay caused solely by the defence.
26In this same vein, Crown counsel is critical of Mr. Sedro for failing to accept the original Crown’s offer in May 2024 to have a judicial pre-trial without a Crown pre-trial. With the greatest of respect, I cannot fault Mr. Sedro for this choice. He had attempted to contact the assigned Crown multiple times. She often failed to respond or missed scheduled pre-trials. There were no notes in the scope system when the matter came up in set date court and the Crown in court was not even able to elect. It is difficult to imagine how accepting the offer for a judicial pre-trial would have changed the landscape and reduced the delay in this case. This Crown failed to respond to correspondence in May about setting a Crown pre-trial date. The setting of a JPT requires Crown input. If the Crown could not provide input about setting a Crown pre-trial, I cannot find that she would have provided input for a JPT. There is no evidence before me that this case would have moved forward any faster had Mr. Sedro agreed in May to set a JPT.
27Crown counsel also criticized Mr. Sedro for not accepting the Justice of the Peace’s offer to move this matter to 807 court. I do not view this as defence delay. Mr. Sedro was not told of any meaningful benefit to moving his case to 807, which is our judge led case management court. As a judge who has sat in 807 with some frequency, I can take judicial notice that this court is so busy that no real case management occurs in it, the assigned Crowns are never present and the cases in 807 do not move ahead any faster than those in the regular case management court. Given the absence of evidence of how agreeing to this move would have made the case proceed faster, I cannot find that this contributed to the delay.
Longer delay required due to complex nature of the case
28The final argument put forward by the Crown was that this matter is so complex that the 20-month delay is justified. I disagree. This was a straightforward sexual assault case. While the case involved pre-trial motions, so do the vast majority of sexual assault cases tried in this court, yet the vast majority of these cases are completed within 18 months.
29The reality is that had the Crown conducted the pre-trial in December when the first attempts were made for the crown pre-trial, this trial date would have been set months earlier. In this case, once a Crown actually took a look at this file in late June or early July, a trial was set for April 22, 2025. This is eight months after a Crown actually took meaningful responsibility for this file and only five months after the trial scheduling conference with the trial coordinators. In other words, despite the six months of inattention by the Crown, this case is only two and a half months above the Jordan ceiling. The only inference that can be drawn, is that the delay over the Jordan ceiling was not linked to the complexity in this case.
Conclusion
30The overall delay in this case is 20 ½ months. In my view none of this delay can reasonably be described as delay caused solely by the defence. It is well over the 18-month ceiling. Even if I deduct the time between November 20, 2023 and November 30, 2023 and the time between May 9, 2024 to May 21, 2024, there is still over 19 months of delay that cannot be characterized as waived delay or delay caused solely by the defence. The remaining delay is still more than a month longer than the presumptive ceiling of 18 months. In my view, the Crown has not established a basis to find that the excess delay was reasonable. As such, I find that Mr. Adekunle’s s.11(b) Charter rights were violated. The remedy of a stay of proceedings is granted.
Released March 11, 2025
Justice Mara Greene