Court File and Parties

Court File No.: 4860 999 23 23100321-00

Date: August 20, 2025

Ontario Court of Justice

Between:

His Majesty the King

— and —

Jacques Andriano

Before: Justice of the Peace R. Shawyer

Heard on: July 30, 2025

Reasons for Judgment released on: August 20, 2025

Counsel:

• C. Bendick, counsel for the Prosecution
• D. Rosso, counsel for the Defendant

JUSTICE OF THE PEACE SHAWYER:

Introduction

[1] The Provincial Offences Act (hereinafter the "Act") process has failed in this case. The process has failed because of its looseness, which has both its benefits and its drawbacks. The process' looseness is beneficial in that it requires formality but allows for informality. At the same time the process' looseness is also its drawback. The informality that the system allows for allows for a defendant, if they so wish, to drag out the proceedings. That is what the defendant has done in this matter.

[2] The purpose of the Act according to section 2 is "to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences." In plain English what s. 2 means is that the Act is designed to provide a fair, efficient, and convenient method of dealing offences that come before the Provincial Offences Court.

[3] This matter, which should have taken no more than 12 months to work its way through the system to a conclusion, has taken over 2 years. What is worse is that the matter was not near a conclusion on July 30, 2025, when the Court heard the first of the issues raised by the defendant in their Charter Application.

Background

[4] The following are the facts as best as the Court understands them.

[5] In an affidavit that was filed with the Court in support of his Charter Application, the Applicant in the Charter Application, and the defendant before the Court (hereinafter the "defendant"), states he purchased the subject property, 346 Dundas Street East in the City of Toronto (hereinafter "346 Dundas"), on December 1, 2004.

[6] On or about July 7, 2014, a building inspection was carried out by the City of Toronto (hereinafter the "City") at 346 Dundas. After that inspection the defendant was found to be in contravention of Section 8, Subsection (1) of the Building Code Act, S.O. 1992, c. 23, as amended. Therefore, on July 9, 2014, the defendant was charged with being in contravention of Section 8(1) of the Building Code Act.

[7] On July 13, 2015, the City sent the defendant a letter entitled "Notice of Court Action" in relation to the July 9, 2014, charges. The City gave the defendant until February 3, 2015, to discuss this matter with a Manager of Inspections to see if legal action could be avoided.

[8] On September 6, 2019, the City sent the defendant another letter entitled "Notice of Court Action" in relation to the July 9, 2014, charges. The City again gave the defendant an opportunity to discuss this matter with a Manager of Inspections to see if legal action could be avoided. This time the City gave the defendant until September 20, 2019.

[9] It appears that on November 23, 2021, the City laid an information before the Court. The information laid by the City charged the defendant with failing to comply with an order dated July 9, 2014, made by an inspector pursuant to Section 12, subsection 2 of the Building Code Act, S.O. 1992, c. 23.

[10] It appears that the information laid by the City on November 23, 2021, was withdrawn. The information appears to have been withdrawn in Court on May 16, 2022.

[11] On March 21, 2022, and April 4, 2022, the City ordered the defendant to again comply with the Building Code Act. The City ordered the defendant to do so because it alleged that the defendant had violated the Building Code Act by converting a garage located at 346 Dundas into a habitable space without a permit, amongst other alleged violations.

[12] On March 24, 2023, the City laid a new information before the Court. This time the City charged the defendant with contravening Section 36(1) of the Building Code Act and failing to comply with an order dated March 31, 2022, made by a City Inspector dated March 21, 2022, pursuant to Section 36(1) of the Building Code Act.

[13] On October 21, 2024, count one, being in contravention of Section 36(1) of the Building Code Act, on the information before this Court that was sworn by an employee of the City on March 24, 2023, was withdrawn. That left one count of failing to comply with a Building Code Act order before the Court as of July 30, 2025.

The Law and Analysis

[14] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. In R v. Jordan, 2016 SCC 27 (hereinafter "Jordan") at paragraph 19 the Supreme Court of Canada (hereinafter "Supreme Court") reiterated the importance of a defendant's right to be tried within a reasonable time:

[The] right to be tried within a reasonable time is central to the administration of Canada's system of... justice. It finds expression in the familiar maxim: "Justice delayed is justice denied". An unreasonable delay denies justice to the accused...and the public as a whole.

[15] Four years later the Supreme Court again opined on a defendant's 11b rights. In R v. K.G.K., 2020 SCC 7 (hereinafter "K.G.K.") Moldaver J writing on behalf of the majority said at paragraph 25:

Section 11(b) of the Charter provides that "[a]ny person charged with an offence has the right ... to be tried within a reasonable time". This provision reflects and reinforces the notion that "[t]imely justice is one of the hallmarks of a free and democratic society" (Jordan, at para. 1). Section 11(b) protects both an accused's interests and society's interests. The individual dimension of s. 11(b) protects an accused person's interests in liberty, security of the person, and a fair trial. The societal dimension of s. 11(b) recognizes, among other things, that timely trials are beneficial to victims and witnesses, as well as accused persons, and they serve to instill public confidence in the administration of justice (see R. v. K.J.M., 2019 SCC 55, at para. 38).

[16] In a provincial court of justice, the Supreme Court has decided that 18 months is a reasonable time. In Jordan the Supreme Court said:

1 Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".

2 Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

3 An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.

4 Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay.

5 A change of direction is therefore required. Below, we set out a new framework for applying s. 11(b). At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)'s important objectives.

19 As we have said, the right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim: "Justice delayed is justice denied." An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.

20 Trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

24 Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the "worry and frustration [they experience] until they have given their testimony" (Askov, at p. 1220). Repeated delays interrupt their personal, employment or business activities, creating inconvenience that may present a disincentive to their participation.

25 Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, "delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice" (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community's sense of justice (see Askov, at p. 1220). Failure "to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures" (p. 1221).

26 Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as "a fair and balanced criminal justice system simply cannot exist without the support of the community" (Askov, at p. 1221).

27 Canadians therefore rightly expect a system that can deliver quality justice in a reasonably efficient and timely manner. Fairness and timeliness are sometimes thought to be in mutual tension, but this is not so. As D. Geoffrey Cowper, Q.C., wrote in a report commissioned by the B.C. Justice Reform Initiative:

... the widely perceived conflict between justice and efficiency goals is not based in reason or sound analysis. The real experience of the system is that both must be pursued in order for each to be realised: they are, in practice, interdependent.

(A Criminal Justice System for the 21st Century (2012), at p. 75)

28 In short, timely trials further the interests of justice. They ensure that the system functions in a fair and efficient manner, tolerating trials after long delays does not. Swift, predictable justice, "the most powerful deterrent of crime" is seriously undermined and in some cases rendered illusory by delayed trials (McLachlin C.J., "The Challenges We Face", remarks to the Empire Club of Canada, published in (2007), 40 U.B.C. L. Rev. 819, at p. 825).

49 The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. 2 We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry. 3 As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted.

50 A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

57 There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.

105 The new framework for s. 11(b) can be summarized as follows:

• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

[17] The Supreme Court's decision in Jordan has been considered on many occasions. One such occasion was in R. v. Coulter, 2016 ONCA 704 (hereinafter "Coulter"). In Coulter the Ontario Court of Appeal (hereinafter "ONCA") at paras. 34-41 provided a useful guide to lower courts for applying the Jordan framework. Under the heading "[a] new framework summarized" the ONCA laid out the following steps that a Court must follow when applying the Supreme Court's decision in Jordan:

Step 1: Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.

Step 2: Subtract defence delay from the total delay, which results in the "Net delay."

Step 3: Compare the Net Delay to the presumptive ceiling.

Step 4: If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Step 5: Subtract 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.

Step 6: If 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.

Step 7: If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Step 8: The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases").

[18] After the Jordan decision cases were litigated over how to apply the Jordan framework. This led to the Supreme Court's decision in K.G.K. At paragraph 31 Moldaver J, under the heading "[t]he Temporal Scope of the Jordan Ceilings", clarified how Jordan should be operationalized by lower courts:

[p]roperly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument. That is when the parties' involvement in the merits of the trial is complete, and the case is turned over to the trier of fact….this date permits the straightforward application of the Jordan framework in a manner consistent with its design and goals.

[19] Since the POA system is presided over by Justices of the Ontario Court of Justice (hereinafter "OCJ") and all appeals of POA matters are heard by a Judge of the OCJ presumptively POA matters the length of time a POA matter should take from start to finish is governed by Jordan. However, it was until the ONCA's decision in R. v. Nguyen 2020 ONCA 609 (hereinafter "Nguyen"), that it was clarified that the presumptive ceiling of 18 months applies to POA matters before the OCJ as well as criminal code charges before the OCJ. Specifically, the ONCA said the 18-month ceiling applies to both charges contained in Part I and Part III of the Act: See Nguyen at para(s). 21, 22, and 26 and R. v. Battigaglia, [2023] O.J. No. 5267 at para. 19 (hereinafter "Battigaglia").

[20] Finally, the seriousness of the charges before the Court do not factor into whether a defendant's 11b rights have been infringed. The Supreme Court in R v. Williamson, 2016 SCC 28 (hereinafter "Williamson") at paras. 33–38 wrote:

34 [f]irst, a person's right to a trial within a reasonable time cannot be diminished based solely on the nature of the charges he or she faces. As this Court wrote in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.), at para. 40, "Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences." Many appellate courts across the country, including this one, have stayed serious charges, even when the total delay (minus defence delay) was less than that in this appeal.

35 In this regard, we note that s. 11(b) guarantees the right "to be tried within a reasonable time". It does not admit of gradients of reasonableness where the charges are serious. For example, it does not guarantee the right to be tried within "somewhat longer" than a reasonable time, or within a time that is "excessive but not so long as to be clearly unreasonable" when the charges are serious (Cromwell J., at paras. 43 and 80). Delay is either unreasonable, or it is not. As a result, our point of departure with our colleague is on what we consider reasonable. In short, we have different perspectives on a subjective standard.

36 Second, while our colleague uses the seriousness of the offence to dilute the constitutional right to a trial within a reasonable time, we consider that the Charter right is respected, and the public interest is best served, by trying serious charges on their merits in a timely fashion. These are precisely the cases that should be heard promptly, on the strongest possible evidence.

37 Third, the seriousness of the offence does not sit comfortably with the notion of reasonable time. Some grave charges require very little time to be tried, while some less serious charges require more time.

38 We agree with our colleague that the charges against Mr. Williamson are grave. Like the Court of Appeal, we reach our conclusion "with great reluctance" (para. 68). The victim underwent the ordeal of a criminal trial, and Mr. Williamson was eventually convicted by a jury of his peers. But as we discussed in Jordan, timely justice is one of the hallmarks of a free and democratic society. This case is an example of how delay works to the detriment of everyone. Conversely, timely justice accrues to the benefit of all.

[21] When applying the Jordan framework there are two separate and distinct legal tests. The first legal test under the Jordan framework is for matters where a defendant alleges that despite their matter has not been before the Provincial Courts for more 18 months on a net basis their 11b rights have nevertheless been infringed. The second legal test under the Jordan framework is for matters where the defendant is alleging that their 11b rights have been infringed because it has taken more than 18 months on a net basis for their matter before the Provincial Courts to be resolved.

[22] Normally, when a Charter Application is brought by a defendant alleging that their 11b rights have been infringed their application is very concisely framed. Further, the defendant's Charter application would normally set out and apply one of the two legal tests as set out in Jordan to the facts of the case so that it is clear to both the Crown and the Court what is being argued. Unfortunately, the defendant did neither of these things in this matter, which made it very difficult for the Crown to respond. Therefore, it was left to Court to determine whether there was an infringement of the defendant's 11b rights either on an under or over 18-month net basis.

[23] After hearing argument from both the defendant and the Crown regarding the defendant's Charter Application the Court was left with the understanding, after hearing from the defendant, that it is their position that since their matter has taken more than 18 months on a net basis and is still not complete that their 11b rights have been infringed. Whereas the Court, after hearing from the Crown, understood the Crown's position to be that after accounting for delay the defendant's matter has been before the Provincial Court for well less than 18 months on a net basis and that the defendant's 11b rights have not been infringed.

[24] The two different legal tests created by the Supreme Court of Canada in Jordan are as follows:

1. For a defendant to establish a below-ceiling breach of their s.11(b) Charter right, they must satisfy two criteria on a balance of probabilities. Those criteria are (1) did the defence take meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) did the case take markedly longer than it reasonably should have? These criteria were outlined in Jordan at paras 82 and 83 and R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39 (hereinafter "K.J.M."), at paras. 4, 70, 104. When assessing those criteria and determining whether a stay is warranted below the 18-month ceiling set out in Jordan for a matter before a provincial court a Court must be mindful of two things. The first is that stays for matters under 18-months are rare. The second is that a stay under 18 months should only be ordered in the clearest of cases: See R v. S.A., 2024 ONCA 737 at para 35.

2. When a defendant alleges that the net delay exceeds the presumptive ceiling created in Jordan, the delay is presumptively unreasonable. To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption of unreasonableness, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: See Coulter at para 37.

[25] Given the distinctly different positions taken by the defendant and the Crown in this case the Court must first determine the net delay. When the net delay has been determined the Court will then in turn apply the legal test for an alleged below-ceiling breach and the legal test for determining whether the defendant's matter has taken more than 18 months on a net basis as of July 30, 2025.

(a) When did the Jordan clock start running according to the parties?

[26] Prior to the hearing of the defendant's 11b Application the Court reviewed all the materials filed by the parties. The materials that the Court reviewed included the defendant's Amended Notice of Application dated May 28, 2025, and the Crown 11B Supplementary Factum dated April 3, 2025.

[27] It was not clear to the Court from reading the defendant's 11b Application materials when the defendant believes the Jordan clock began to run. This is due to the fact the defendant's Charter materials were not properly framed. In the defendant's Amended Notice of Motion, the first mention of a fact that may bear on the issue of when the Jordan clock begins to run was when the defendant stated at paragraph 2 under the heading "grounds for the amended motion are" that "the accused was charged on February 9, 2023". This led the Court to initially believe that the defendant's position was that the Jordan clock began running as of the date they were charged. However, at paragraph 16, 17, and 21 under the heading "history" the defendant whinged that:

[t]he accused was originally charged November 23, 2021, on a dated allegation of failing to comply under the Building Code Act, S.O. 1992, C.23 as amended section 13(2) with alleged offences dated back to July 9, 2014, (charge 1)".

[d]escribed in the Supplementary Affidavit of Jacques Andriano, Charge 1 was withdrawn on the record May 16, 2022, by the acting prosecutor, Mr. Erik Bylsma.

[by] February 25, 2025, the summary matters will be in excess of eleven years old by the end of the trial (defendant's emphasis).

[28] Given the lack of clarity in the defendant's Charter Application materials the Court asked the defendant's representative during oral argument to clarify, for the purposes of calculating the net amount of time the defendant's matter has been before the Court, when the Jordan clock began to run. After some back and forth with the Court the defendant ultimately agreed that the Jordan clock in this matter started running as of the date the information was laid.

[29] It should not have taken the Court more than a brief reading of the defendant's Charter Application for the Court to determine the defendant's position about when the Jordan clock starts. Further, it should not have required a discussion with the defendant's representative at the start of submissions to pin down the defendant's position about when the Jordan clock began running. It is clear from the SCC's decision in K.G.K. at paragraph 31 that the Jordan clock starts running as of the date an information is laid before/filed with the Court: See above and Toronto (City of) v Battison, 2025 ONCJ 197.

[30] In contrast the Crown's position was very clear to the Court. In the Crown's 11(b) Supplementary Factum in Chart form that was included as part of paragraph 12, which the defendant did not include their Amended Notice of Application and which the Court had to order the defendant to provide in writing, the Crown stated that their position was that the net amount of time that the defendant's matter had been before the Court was originally 5.4 months. Whereas the in Crown in Court clarified that the Crown's position was 8.8 months without prompting from the Court.

(b) Net basis calculation

[31] The parties agreed during oral argument that the defendant's matter has been before the Court for a total of 863 days. Oral argument was heard on July 30, 2025.

[32] During the initial appearance date for the defendant's matter, May 2, 2023, the defendant was self-represented. At the next appearance the defendant was represented by a paralegal who remained on the record for the defendant until March 1, 2024. The defendant argues that between the initial appearance date and the appearance date on March 1, 2024, there was no delay attributable to the defendant because there was reliance on the prosecution that disclosure was complete, which would mean that the defendant's had all the necessary evidence required to proceed with a trial.

[33] The problem with the defendant's argument about delay from May 2, 2023, to March 1, 2024, is that there was in fact delay; and what delay there was, is attributable to the defendant because:

1. On May 2, 2023, the defendant appeared before the Court without representation, the Crown said that disclosure had been provided, and nothing in the transcript of the Court appearance on that date indicated that defendant took issue with the Crown's assertion, which presumptively means that the defendant was in possession of the disclosure provided by the Crown on or before May 2, 2023.

2. On September 12, 2023, the defendant's second Court appearance in this matter, they were represented. During this appearance the Crown again asserted on the record that disclosure had been provided. Again, the defendant, this time through their representative, did not challenge the Crown's assertion on the record, which again presumptively meant that the defendant was in possession of disclosure from the Crown.

3. On November 14, 2023, the defendant, again via his legal representative, appeared for a third appearance in this matter. During this appearance there was no discussion on the record about the issue of disclosure. Further, a trial was set for the defendant's matter beginning on February 13, 2024, at the request of the defendant because his legal representative was not available on the first available date for trial that both the Court and the prosecution could have accommodated, which was December 12, 2023.

4. On February 13, 2024, the first scheduled trial date, the prosecution at the outset of the appearance advised the Court that the prosecution was ready to proceed as the prosecution's sole witness and a French interpreter for the defendant were in attendance. After the Crown indicated that they were ready to proceed the defendant's representative asked for an adjournment of the trial because the defendant had recently been in and out of the hospital. In response the Crown opposed the adjournment request and the defendant's legal representative replied that the defendant was not willing to waive 11(b) but did indicate that 11(b) was something to be decided by the Court on a future date. Further on this date for the first time the defendant's representative, despite agreeing to set the matter down for trial on the previous date that the matter was before the Court, advised the Court that a Judicial Pretrial (hereinafter "JPT") had not been held prior to February 13, 2024, and that it was now the defendant's position that a JPT should be held before the defendant's matter proceeds to trial. Given what the Court heard from counsel the adjournment was granted and the matter was adjourned to a date where the matter would be spoken to (hereinafter "TBST") to confirm the date set for a JPT and to confirm a trial date.

5. On March 1, 2024, the next Court date in the defendant's matter, the defendant's legal representative and a new legal representative purporting to represent the defendant appeared and the defendant's initial legal representative was removed from the record. The new representative then set a date for a JPT on April 19, 2024, at 9 a.m. and a TBST date for later in the day that same day. However, what the new legal representative for the defendant did not do as the Court said on February 13, 2024, was to be done on March 1, 2024, was to set a new date for trial. Further, on this date, the issue of whether the defendant's new representative had the disclosure that had been previously provided to the defendant was raised by the Court after the setting of the JPT date. In response to the Court's inquiry the defendant's new legal representative advised the Court that they did not have a copy of the disclosure previously provided by the prosecution.

[34] The delay attributable to the defendant between the period of May 2, 2023, and March 1, 2024, is 80 days from December 12, 2023, to March 1, 2024. It is because (1) the defendant did not raise an issue about disclosure being incomplete, which assumes that disclosure is complete to the satisfaction of the defendant, and (2) both the Court and the prosecution were available to proceed with a trial on December 12, 2023 but the legal representative for the defendant was not, which caused the defendant's trial to be set for the next available date to the Court on February 13, 2024. Further, on February 13, 2024, the defendant's legal representative requested an adjournment of the defendant's trial, which was granted because the defendant could not proceed.

[35] The defendant next argued that from March 1, 2024, to April 19, 2024, there was no defence delay. The defendant's argument is premised on the defendant being entitled to a JPT by way of "colour of right". Unfortunately for the defendant his legal representatives, both the one who was representing the defendant on March 1, 2024, and on July 30, 2025, appear to have had the honest but mistaken belief that where a defendant's trial is scheduled to take a day or longer the defendant has a right to a JPT in POA matters.

[36] During oral argument of the defendant's 11b claim the defendant's legal representative argued that there is a practice direction from the OCJ that if a trial in a POA Court is going to take one (1) or more days then a JPT is required. When asked by the Court to furnish a copy of the practice direction the defendant's legal representative was relying on, they were unable to. Instead, the defendant's legal representative relied on the argument that there was a local unwritten practice direction requiring a JPT when POA trial will take one or more days.

[37] Section 45.1 of the Act, which is the section that allows for pre-trial conferences in POA matters, clearly does not create a right to a judicial pre-trial, the language is clearly discretionary.

Judicial pre-trial conferences

45.1 (1) On application by the prosecutor or the defendant or on his or her own motion, a justice may order that a pre-trial conference be held between the prosecutor and the defendant or a representative of the defendant. 2009, c. 33, Sched. 4, s. 1 (38).

Matters for consideration

(2) The court, or a justice of the court, shall preside over the pre-trial conference, the purpose of which is to,

(a) consider the matters that, to promote a fair and expeditious trial, would be better decided before the start of the proceedings and other similar matters; and

(b) make arrangements for decisions on those matters. 2009, c. 33, Sched. 4, s. 1 (38).

[38] Section 45.1 of the Act is based on s. 625.1(1) and 625.1(2) of the Criminal Code of Canada, RSC 1985, c C-46 (hereinafter "Code"). This section of the Code states that JPT's are only mandatory when the defendant's matter is to be heard by a jury:

Pre-hearing conference

625.1 (1) Subject to subsection (2), on application by the prosecutor or the accused or on its own motion, the court, or a judge of the court, before which, or the judge, provincial court judge or justice before whom, any proceedings are to be held may order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by the court, judge, provincial court judge or justice, be held prior to the proceedings to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters.

Mandatory pre-trial hearing for jury trials

(2) In any case to be tried with a jury, a judge of the court before which the accused is to be tried shall, before the trial, order that a conference between the prosecutor and the accused or counsel for the accused, to be presided over by a judge of that court, be held in accordance with the rules of court made under sections 482 and 482.1 to consider any matters that would promote a fair and expeditious trial.

[39] If the Code is not clear enough the annotations to s. 625.1 in The Annotated Tremeear's Criminal Code and the following related statutes, Canada; Tremeear, W.J., Watt, David, and Fuerst, Michelle K. (Carswell 2023), s. 625.1 tells us that:

In all cases except jury trials, a pre-hearing conference is not mandatory. On application by P, D, or on its own motion, the court before which, or the judge, provincial court judge or justice before whom, any proceedings are being held, may order that a pre-hearing conference be held. The conference, between P and D or counsel for D, presided over by a judicial officer prior to the proceedings, will consider such matters as will promote a fair and expeditious hearing. Terms such as "any proceedings" and "fair and expeditious hearing" would seem to permit the holding of conferences prior to preliminary inquiry.

[40] Looking at other legal sources, such as Criminal Pleadings & Practice in Canada, 3rd Ed. (Justice E. G. Ewaschuk) (Thomson Reuters, 1988** – Westlaw Edge), and Criminal Procedure in Canada, 3rd Ed. (Stephen Penney, Vincenzo Rondinelli, James Stribopoulos) (Lexis Nexis, 2022 – Lexis Advance Quicklaw), this Court cannot find reference to cases that stand for the proposition that there is right to a JPT pursuant to s. 625.1 of the Code unless in jury trials. Therefore, since s. 45.1 of the Act is based on s. 625.1 of the Code the only conclusion that this Court can reach is that there is no right to a JPT in POA matters unless there is a written practice direction from the OCJ or the presiding justice orders one because they consider the holding of a JPT necessary for resolution purposes or to ensure the promotion of a fair and expeditious trial.

[41] As there is no right to a JPT and the defendant was the party who requested the JPT that was ultimately held, delay must fall at the feet of the defendant. Therefore, since the defendant's matter was adjourned on March 1, 2024, until April 19, 2024, to allow for the holding of a JPT, all the time during this period, 48 days, must be considered defence delay.

[42] On April 19, 2024, the defendant's legal representative scheduled a half day motion, which the Crown advised during oral argument was set for argument of the defendant's Charter Application, on July 25, 2024. This caused the Court on April 19, 2024, to adjourn the defendant's matter to June 5, 2024, on a TBST basis for the purposes of confirming that the defendant had properly filed their Charter Application and would be proceeding with arguing their Charter Application on July 25, 2024.

[43] On June 5, 2024, a third legal representative for the defendant appeared even though there was nothing in the June 5, 2024, transcript reviewed by the Court to suggest that the 2nd legal representative for the defendant had been properly discharged. Nevertheless, on June 5, 2024, a 3rd legal representative for the defendant came before the Court stating:

"I'm acting for the client. I've stepped into the role of Mr. DiMarco (the 2nd legal representative) who was previously representing the accused party. Although Mr. DiMarco's office still has carriage of the file, I work with Mr. DiMarco's file, and I am the new person with the bullet proof vest who can deal with this."

[44] The legal representative for the defendant argues that, despite the defendant retaining a new legal representative, there is no delay attributable to the defence between June 5, 2024, and October 21, 2024. Whereas the Crown argues that period between June 5, 2024, and October 21, 2024, constitutes delay that is attributable to the defence.

[45] On June 5, 2024, as stated by the Prosecution:

"…today was originally scheduled as a confirmation hearing date for a half day defence motion that was supposed to take place Thursday July 25th, at 1:30 in Courtroom N. Both tiers were blocked by the trial coordinator's office. I understand through Mr. Rosso is that they are not wanting to proceed that day."

[46] The prosecutions statement as to what was happening on June 5, 2024, was confirmed by the defendant's new legal representative when they told the Court that day that:

"[w]e want to be able to – it's sort of a voluminous type motion and since my retainer, I may add some issues to the motion in excess of the 11(b)."

"…we can file our materials pursuant to the Courts of Justice Act two weeks prior – unless there was an issue, in October. But we can have a confirmation if the Court so orders, or my friend wants, prior to – like I think there was a date suggested in July or possibly August."

[47] At the request of the defendant, as they were not prepared to proceed with arguing the defendant's Charter Application on July 25, 2024, the defendant's matter was adjourned. It was adjourned to September 13, 2024, TBST and to confirm the defendant's trial dates.

[48] On September 13, 2024, the defendant's legal representative again advised that the defendant would be bringing a Charter Application. The defendant advised that argument of their Charter Application would "last a day and a half, maybe two". The defendant's legal representative then advised the Court that he was "revamping the (defendant's) Charter application that was drafted by Mr. Di Marco". Therefore, the defendant's matter was adjourned to October 21, 2025, for argument of the defendant's Charter application and/or the start of defendant's trial.

[49] On October 21, 2024, oral argument of the defendant's Charter Application did not proceed. It did not proceed for a variety of reasons.

[50] First, the Prosecution argued that there were issues with service of the amended Charter Application on the Crown pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (hereinafter "CJA"). According to the Prosecutor late service prevented the Crown from responding in time but the Prosecution was ready to orally respond to the defendant's Charter Application. Whereas it appears from the October 21, 2024, transcript, the defendant argued that service on the Crown was proper.

[51] When a defendant before the Court services and files an amended Charter Application service is still governed by s. 109 of the CJA. Whether an amended Charter Application is served and filed in accordance with s. 109 of the CJA depends on the nature of the amendments and whether the original Notice of Constitutional Question provided the respective Federal and Provincial Attorney General's with enough information to satisfy the requirements and purpose of s. 109 of the CJA as articulated by the Court of Appeal in R. v. Vellone, 2011 ONCA 785 (hereinafter "Vellone"):

[25] Within this legislative and contractual matrix, the component of s. 109 of the CJA requiring people in the position of Mr. Vellone to notify the Attorney General of Ontario of his s. 11(b) Charter challenge serves two important purposes. The notice requirement enables the Government of Ontario to decide whether to exercise its right to take over a case under the POA. The notice requirement also furthers the Government of Ontario's important interest in monitoring the performance of municipalities under Memoranda of Understanding.

[26] Third, s. 11(b) cases may raise concerns about systemic problems that implicate provincial responsibilities. In this case, and indeed in most s. 11(b) cases, the decisions of court administrators (e.g., scheduling) and judges (e.g., adjournments) are [page 489] often central to the claim and the analysis. The issues raised in a particular case might point to systemic issues of personnel and resources. Notice to the Attorney General of Ontario of a s. 11(b) challenge -- or, perhaps, an avalanche of such notices -- provides the Government of Ontario with important data about key components of the provincial justice system.

[52] Some cases have interpreted s. 109(2) of the CJA to mean that a Court can hear oral argument of a Charter Application, and if successful, adjourn the defendant's matter to give the party who served and filed a Charter Application an opportunity to provide the Notice of Constitutional Question prior to deciding or granting the remedy: See e.g., York (Regional Municipality) v. Tomovski, 2017 ONCJ 785, (POA Appeal) (hereinafter "Tomovski"), leave to appeal denied 2018 ONCA 57. Further, a Court has jurisdiction to reduce the notice period in s. 109 of the CJA:

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise.

[53] Reducing the notice the period in s. 109 of the CJA was considered by the Court of Appeal in Paluska v. Cava (hereinafter "Paluska"). While not a POA decision, it was applied in the POA context in Tomovski. Therefore, the same principles apply when a Court is hearing a POA matter.

[54] Despite the Prosecution advising they were ready to proceed on October 21, 2024, the Court did not abridge the time for service of the defendant's amended Charter Application. Further, the Court on October 21, 2024, did not proceed with hearing the defendant's amended Charter Application, reserve its decision, and allow the defendant time to properly serve and file their Amended Charter Application prior to rendering its judgement. Therefore, the defendant's amended Charter Application was not properly served and filed in accordance with s. 109 of the CJA and had to be adjourned.

[55] Second the defendant argued that they could not argue their Charter Application on October 21, 2024, because of what they claimed were outstanding disclosure issues. Whereas the Crown, relying on the decision in R v. Cody 2017 SCC 31, [2017] 1 S.C.R. 659 (hereinafter "Cody") at paragraph 32, argued that the actions of the defendant regarding the issue of disclosure exhibited a marked inefficiency or marked indifference towards delay. In Cody in a per curiam decision the Supreme Court held that:

32 Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (Last sentence is Court's emphasis)

[56] In addition to relying on the decision in Cody the Crown argued that as per the decision in R v. Dixon (reported as R v. McQuaid), [1998] 1 S.C.R. 244 (hereinafter "McQuaid") the onus is on the defence to pursue disclosure diligently and not on the eve of trial; otherwise delay is attributable to the defendant when the issue of whether the defendant's 11b rights have been violated is litigated:

37 In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 106 C.C.C. (3d) 365 (B.C. C.A.) (aff'd, [1996] 3 S.C.R. 1126 (S.C.C.)), at p. 374:

...the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made.

See also R. v. S. (S.E.) (1992), 100 Sask. R. 110 (Sask. C.A.), at p. 121.

38 Whether a new trial should be ordered on the basis that the Crown's non-disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial. See R. v. McAnespie, [1993] 4 S.C.R. 501 (S.C.C.), at pp. 502-3.

39 In sum, all these factors must be appropriately balanced. In situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. This balancing process must now be applied to this appeal.

[57] As noted earlier in these reasons the issue of disclosure was raised on the record on the following dates:

1. On May 2, 2023, in Court the Prosecutor advised the Court that disclosure had been provided. The defendant did not contest the Prosecutor's assertion on this occasion.

2. On September 12, 2023, in Court the Prosecutor again advised the Court that disclosure had been provided. Again, the defendant, now represented by a legal representative, did not contest the Prosecution's assertion on this occasion. The defendant's matter is adjourned to another Court date for the purposes of confirming a trial date in the defendant's matter.

3. On November 14, 2023, in Court the Prosecutor again advised that disclosure had been provided. Again, the defendant, still represented by a legal representative, for the third time in a row did not contest the Prosecution's assertion. On this date a trial in the defendant's matter was set for February 13, 2024, which was the earliest date available to the defendant to proceed with a trial.

4. On February 13, 2024, the prosecutor in Court advised that the Prosecution was ready to proceed with a trial. The issue of disclosure is not raised by either the defence or the Prosecution on this date.

5. On March 1, 2024, a new legal representative appeared on the defendant's behalf. On this date the issue of disclosure was raised, albeit, by the Court when the presiding Justice asked the prosecutor in Court that day whether disclosure had been provided and the defendant had received it. In response to the Court's questions the prosecutor advised that disclosure had been provided but if the defendant required another copy, they would provide it. The legal representative for the defendant responded to the prosecutor's statement by advising the Court that they did not have a copy of disclosure. The presiding Justice then queried how the defendant proposed having a JPT without disclosure.

6. During the Court appearance on April 19, 2024, the issue of disclosure was not raised by either the defendant or the Prosecution. The only thing that happened in Court on this date is that the defendant's Charter Application was scheduled to be argued on July 25, 2024, and a confirmation date was set for June 5, 2024.

7. During the Court appearance on June 5, 2024, a third legal representative appeared on behalf of the defendant. This legal representative told the Court on this date that the previous legal representative, and not them, had carriage of the defendant as of this date. Further, neither the defendant's new legal representative or the Prosecution raised the issue of outstanding disclosure during this Court appearance. Therefore, the defendant's matter is adjourned to September 13, 2024.

8. During the Court appearance on September 13, 2024, neither the defendant nor the Prosecution raised the issue of missing disclosure. However, the legal representative for the defendant advised the Court that they were revising the defendant's Charter Application materials. The defendant's matter is then adjourned to October 21, 2024, for the first day of oral argument about the defendant's Charter Application.

9. Finally, on October 21, 2024, the defendant's third legal representative, for the first time since the defendant appeared in the Court to answer to the charges before the Court, raised the issue of possible missing disclosure. Even then the legal representative for the defendant advised the Court that it was only when they started preparing for the defendant's trial 2 weeks prior (approximately the beginning of October 2024 according to the legal representative's statement to the Court) that they realized that they maybe disclosure that is missing.

[58] Considering the foregoing the Prosecution is right. It is quite clear from the Court record, as outlined above, that the defendant in this matter did not diligently pursue the issue of disclosure. The defendant cannot remain passive from May 2, 2023, until October 2024 about the issue of disclosure then argue that no delay is attributable to them. This as the Prosecution rightly argues demonstrates a marked inefficiency at best or a marked indifference towards delay at worst on the part of the defendant that has led to their matter being delayed.

[59] Finally, the third reason is that on October 21, 2024, the Court ordered the parties to hold a second JPT because the Court found the defendant's matter "befuddling" and "generally speaking a mess". Therefore, the defendant's matter was adjourned TBST on February 14, 2025, to allow for a JPT to be held on December 12, 2024.

[60] In this Court's view the entirety of the period from April 19, 2024, until October 21, 2024, some 184 days, is delay that is attributable solely to the actions of the defendant. This is so because, as outlined above, the defendant changed representation, did not properly service and file their amended Charter Application, and did not raise the possibility of missing disclosure until the 11th hour.

[61] During oral argument of the defendant's Charter Application they argued that the period from October 21, 2024, to December 12, 2024, should be considered Court delay. Whereas the Crown argued that this period should be considered defence delay.

[62] The period between October 21, 2024, and December 12, 2024, cannot be considered Court delay. It must be considered defence delay. It must because of the Court's comments on October 21, 2024, about the defendant's matter being a mess. If the defendant's matter was a "mess" as the Court stated, it was the defendant's own doing. The defendant switched legal representation three times between the date they were charged and October 21, 2024. Further, they did not begin reviewing the disclosure received from the prosecution until two (2) weeks prior to the scheduled Court appearance on October 21, 2024. Therefore, it was proper for the Court to order that parties proceed with a another JPT as it was the only course of action open to the Court to ensure that disclosure was complete, and that the defendant's matter was ready for trial.

[63] In their reply submissions the defendant argued that "the defence was ready to take the next available November 14, 2024, JPT date however, the Prosecution wasn't available." The Court took this to mean that the Prosecution not being available on November 14, 2024, meant that the period between November 14, 2024, and December 12, 2024, should be considered Prosecution delay.

[64] The period between November 14, 2024, and December 12, 2025, cannot be considered Prosecution delay because it is defence delay. As stated previously the defendant only started reviewing disclosure two weeks prior to the scheduled Court appearance on October 21, 2024. Further, the defendant waited until October 21, 2024, the first day of what was supposed to be the start of the defendant's Charter Application/trial, to advise the Court of what the defendant believed was missing disclosure, which caused the Court to schedule a second JPT, vacate the next two days of scheduled Court time slated for October 22, 2024, and February 26, 2025, and adjourn the defendant's matter to January 3, 2025, on a TBST basis to allow for a 2nd JPT.

[65] The defendant argues that the period from December 12, 2024, to April 7, 2025, should be considered Court delay. Whereas the Crown argues that, that period should be considered defence delay.

[66] The period between December 12, 2024, to January 3, 2025, cannot be considered Court delay because it is delay caused by the defendant. Had the defendant raised the issue of possible outstanding disclosure earlier than the 11th hour it is possible that the disclosure issue could have been resolved and the defendant's Charter Application/trial could have proceeded on October 21, 2024, as scheduled.

[67] The period between January 3, 2025, and the next scheduled Court date on February 14, 2025, cannot be considered Court or Prosecution delay. This period too must be considered defence delay. It must because despite the January 3, 2025, Court date being scheduled on consent in Court on October 21, 2024, neither the defendant nor his legal representative appeared in Court on January 3, 2025. Therefore, the defendant's matter could not move forward in any substantive way and had to be adjourned to the next month in the hopes that the defendant and/or his legal representative would appear.

[68] The period between February 14, 2025, and April 7, 2025, cannot be considered Court or Prosecution delay. It too must be considered defence delay. If the defendant and/or his legal representative had appeared on January 3, 2025, in Court as required the defendants matter could have been set down for the argument of the defendant's Charter Application and the defendant's trial on that date for an earlier date than the date that was scheduled on February 14, 2025, which was April 7–8, 2025, and May 19th and 28th, 2025.

[69] The defendant argued that the period between April 7, 2025, and May 28, 2025, should be considered Crown delay because missing disclosure. Whereas the Crown argued that this period should be considered defence delay because of the late filing of the Charter Application materials by the defendant.

[70] The period between April 7, 2025, and May 28, 2025, is properly defence delay. While the Prosecution concedes that there potentially could be some prosecution delay due to disclosure, ultimately the Court granted an adjournment of the defendant's matter on April 7, 2025, for the purposes of allowing the prosecution time to review the 119-page affidavit dated April 6, 2025, that was served on them on April 6, 2025, which was one day before the next scheduled Court date. Therefore, the defendant's matter was adjourned to May 8, 2025, for the parties to confirm that the defendant's Charter Application was going to be argued on May 28th and 29th, 2025 and if the defendant's trial were to proceed that it would proceed on July 29th and 30th, 2025.

[71] The defendant argues that the period from May 28, 2025, to July 29, 2025, should be considered prosecution delay because of what they claim is outstanding disclosure. Whereas the Crown argues that this period should be considered defence delay because of the defendant's marked indifference to moving their matter forward in a timely manner.

[72] The period between May 28, 2025, and July 29, 2025, must be considered defence delay. On May 28, 2025, the Court found that the defendant's Charter Application had not been properly served. Therefore, to avoid any further delays the presiding Justice that day seized themselves and adjourned the defendant's matter, to allow for the defendant to properly serve and file their Charter Application materials, to July 29, 2025, for the first of two days of oral argument about the defendant's Charter Application.

[73] On July 29, 2025, oral argument over the defendant's Charter Application did not proceed. It did not because the Justice who was seized was sick, and another Justice was assigned to hear the defendant's Charter Application only the evening before. Therefore, the Court date on July 29, 2025, is Court delay.

[74] The July 29, 2025, Court date is Court delay for the following reasons. First, this Court date was spent (1) determining whether the Justice who was seized needed to hear the defendant's Charter Application or whether the Justice who was assigned to hear the defendant's Charter Application the evening before could in fact hear the defendant's Charter Application; and second, the Court date was further spent ensuring that the Justice who appeared in Court on July 29, 2025 was in a position to hear the defendant's Charter Application starting on July 30, 2025 in the event that Justice who had seized themselves was not available on July 30, 2025.

[75] For the foregoing reasons the net delay attributable to the defendant is 593 days or 19.5 months, the Prosecution 0 days, and to the Court 1 day. The Court arrives at its calculation by attributing 80 days of delay to the defendant from December 12, 2023, to March 1, 2024, and 514 days of delay to the defendant from March 2, 2024, to July 28, 2025, no days of delay to the Prosecution, and 1 day of delay to the Court for the wasted appearance on July 29, 2025. Therefore, the defendant's matter on a net basis as of July 30, 2025, had been before the Court for 270 days or 8.87 months not accounting for 1 day of Court delay, which was a discrete event.

(c) Jordan analysis

[76] In conducting its analysis of whether the matter has been before the Court for less than and 18 months on a net basis and should be stayed the Court is mindful that stays for matters under 18-months on a net basis are rare. The Court is also mindful that a stay under 18 months on a net basis should only be ordered in the clearest of cases. In this case:

1. The defendant did not take meaningful steps that demonstrated a sustained effort to expedite the proceedings. The defendant did not do so for several reasons. The first is that the defendant switched legal representation three times during the proceedings. Second the defendant filed a Charter Application that was amended when he switched legal representation. Third, the defendant did not properly serve and file their Charter Application materials, which caused the hearing of the defendant's Charter Application to be delayed. Finally, the defendant did not raise the issue of potential missing disclosure until October 21, 2024, which was originally scheduled to be the first day of oral argument over the defendant's Charter Application and some 538 days after the defendant first appeared in Court to answer the charges before the Court.

2. Due to the defendant's actions this matter has taken markedly longer than it reasonably should have. It has for several reasons. Had the defendant moved to identify the issue of potential outstanding disclosure sooner the defendant's matter could have been set for trial sooner. Second, had the defendant identified the issue of potential missing disclosure sooner the defendant would have been able to file comprehensive Charter Application materials identifying all the alleged Charter breaches at once instead of having to file an amended Charter Application. Finally, third had the defendant strictly adhered to the letter of s. 109 of the CJA issues with the service and filing of their Charter Application would have been avoided.

[77] Therefore, as the defendant's matter is not an example of a clear and rare case where a stay for a matter under 18-months on a net basis should be ordered, one will not be ordered.

[78] Finally, as this matter has not exceeded the 18-month ceiling on a net basis set by the Supreme Court in Jordan there is no need for the Court to engage in an analysis of whether Crown established the presence of exceptional circumstances because either there were discrete events and/or the matter was particularly complex. There were neither discrete events that led this matter to being before the Court for over 18-months on a net basis nor facts that make this case especially complex.

Conclusion

[79] Like all things in life there must be an ending. Having found that the defendant's matter has only been before the Court for 8.87 months on a net basis the defendant's matter could continue working towards a resolution in the Courts for approximately another 9 months. However, the Court has no intention of allowing that to happen as the defendant's matter has taken up more than its fair share of Court time and resources over the past 2 years and some months.

[80] The Court is ordering that the defendant's matter proceed to a combined Charter Application hearing and/or trial as soon as practicable. The Court will hear the remainder of the issues raised in the defendant's Charter Application, if the defendant wishes to pursue them, at the start of the defendant's trial. That trial shall start the next time the defendant's matter is before the Court subject to all disclosure issues having been resolved before that date.

Released: August 20, 2025

Signed: Justice of the Peace R. Shawyer