ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
RODNEY FERGUSON
CHARTER SECTION 11(B) RULING
Before Justice Brock Jones
Heard on November 27, 2025
Decision Released on December 1, 2025
N. Piccinin counsel for the Crown
A. Craig and S. Khan counsel for Mr. Ferguson
Jones J.:
Introduction
1Mr. Ferguson is charged with conspiracy to commit an indictable offence (Criminal Code section 465(1)(c)), arson (Criminal Code section 434), possession of incendiary material (Criminal Code section 436.1), and mischief over $5000 (Criminal Code section 430(3)).
2He was arrested on June 5, 2024, and an Information was sworn the same day. His trial is set to conclude on March 16, 2026. The period between the swearing of the Information and the anticipated end of his trial is 649 days. This exceeds the 18-month ceiling for trial sets in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.
3During the oral hearing on November 27, Mr. Piccinin submitted that, based on recent decisions made by the Crown’s office to reduce the complexity of the trial, he was optimistic that the case would conclude under the Jordan ceiling. He estimated the trial would be completed no later than January 30, 2026. The total delay would be approximately 17 months. Ms. Khan disputed the accuracy of that new, revised timeline.
4Mr. Ferguson alleges a violation of his Charter section 11(b) right to a trial without unreasonable delay. He requests a stay of proceedings pursuant to Charter section 24(1).
5Regardless of whether this case falls above or below the Jordan ceiling, for the following reasons, I grant the application and stay the proceedings.
Overview of the Allegations
6Mr. Ferguson was originally charged along with two other individuals, Renan Vinicius Da Silva and Steven Lepera. The Crown withdrew the charges against these other two suspects on October 30, 2025, which was the day this application was originally set to be heard.
7On February 9, 2023, at 3:48 am, surveillance footage captured three unknown individuals at the Petty Cash bar, located at 487 Adelaide Street West, Toronto. They arrived in a red Hyundai Sonata. The group carried jerry cans, poured gasoline inside the bar, and ignited a fire.
8On February 28, 2023, at 4:00 am, three unknown persons attended the Myth bar at 522 King Street West, Toronto. They also arrived in a red Hyundai Sonata. The group used jerry cans, poured gasoline inside the bar, and ignited a fire.
9At 4:39 am, a video captured the same three persons approaching a parked black Dodge truck. They broke into the truck, poured gasoline inside it, and set it on fire.
10A police investigation commenced. The police believed Mr. Da Silva owned and operated the red Hyundai Sonata. It was believed that Mr. Ferguson and Mr. Lepera were the other two people involved in these crimes.
11Central to the original theory of the case for the Crown was cellphone location data obtained by the police, which purportedly would help the Crown prove a conspiracy between the three co-accused persons and implicate them in each of the arsons.
12Mr. Piccinin advised me that the Crown had abandoned that theory by the time he took over the case in September 2025. As of November 27, 2025, the Crown was alleging that Mr. Ferguson was involved in only one of the incidents, and the trial’s complexity was reduced accordingly.
13I have focused my summary of the chronology of the case on the most salient features for the purposes of this decision, given the concessions made by counsel.
(i) June 5, 2024 – October 4, 2024
14Mr. Ferguson initially retained Larry Lebovits as his counsel. On June 17, Mr. Lebovits requested disclosure on the court record. He wanted to review that material before considering an application for bail on behalf of Mr. Ferguson. On July 8, Mr. Lebovits repeated that request.
15On July 15, Mr. Ferguson informed a Justice of the Peace that he wanted to retain a new lawyer. Duty counsel nevertheless informed the court that Mr. Lebovits was still awaiting disclosure and remained counsel of record.
16Mr. Lebovits was removed as counsel on July 29. Mr. Ferguson made a request for a change of solicitor application via Legal Aid. On September 9, Mr. Ferguson appeared before a Justice of the Peace, while self-represented, and indicated that he wanted disclosure. His change of solicitor application was still being processed. He was also considering a Rowbotham application if necessary. The Crown advised that once Mr. Ferguson had his new lawyer “firmed up,” they would send disclosure to that lawyer, who was intended to be Ms. A. Craig.
17On September 23, Mr. Ferguson appeared in court and once again requested disclosure.
18Ms. Craig was retained on October 4.
(ii) October 4, 2024 – September 17, 2025
19Ms. Craig made multiple requests for the disclosure materials. On October 7, she did so in court, as she did on October 28. She sent a follow-up request to the Crown on November 25. On November 26, in a case management court, Ms. Craig relayed to duty counsel that she was awaiting initial disclosure. The Crown agreed to “flag” the matter for disclosure to be located and provided to Ms. Craig. The case was adjourned to December 4 in the Judicial Intensive Case Management Court (“JICMC”).
20Initial disclosure was finally received on December 4, six months after Mr. Ferguson’s arrest. A Crown pre-trial was held on December 12. Ms. Craig requested further pre-trials in January 2025, but the assigned Assistant Crown Attorney did not respond.
21A judicial pre-trial (“JPT”) was held on February 19, 2025, before Justice P. Fraser. Everyone agreed that a follow-up JPT would be necessary to discuss the status of several outstanding disclosure items, including video footage, witness interviews, Information To Obtain court orders (“ITOs”), and cellphone extraction reports.
22A continuing JPT was held before Justice Fraser on May 5. The significant items of disclosure were still outstanding. The Crown could not provide an explanation. A further JPT was set for June 17.
23On June 17, the Crown did not attend, and the JPT could not be conducted.
24Despite the outstanding disclosure materials, on June 20, a trial scheduling conference was held to set trial dates. A ten-day trial was set for all three accused parties, which would have concluded on March 16, 2026. Earlier dates were offered but Ms. Craig was not available.
25A further JPT was held with Justice Fraser on June 23. The disclosure materials remained outstanding.
26At yet another JPT on July 2, defence counsel advised Justice Fraser that they received “several gigabytes” of disclosure a few days prior and were still reviewing it. The trial coordinator also attempted to obtain trial dates within the Jordan ceiling but was unsuccessful. Ms. Craig needed time to determine if she was available for some of the proposed new dates.
27Justice Fraser heard from the parties in open court and summarized what occurred at the JPT. The case was set to return on July 15, when dates for an 11(b) hearing would be put on the record. That did not occur, however, until a subsequent date.
28A further trial scheduling conference was held on July 23. The dates for the 11b motion were set for October 30 and 31, 2025.
29The Crown failed to appear for another continuing JPT on August 7 before Justice Fraser.
30Two more JPTs were held before Justice Fraser on August 19 and September 17.
(iii) Section 11b hearing set for October 30, 2025 – November 27, 2025
31The Charter section 11b application was assigned to me. The Crown chose to withdraw the charges against the co-accused of Mr. Ferguson on the morning of the anticipated arguments. As a result, the application was adjourned, with the Crown and Ms. Craig agreeing to seek new dates that might enable the trial for Mr. Ferguson to finish within the Jordan ceiling. The Crown undertook to advise if it believed the length of the trial could be shortened because of its decision to withdraw against the co-accused.
32A key item of outstanding disclosure – the cellphone data extraction reports – had still not been provided to the defence as of the original date set for this application.
33Mr. Piccinin informed me on November 27, 2025, that after reviewing the evidence, the Crown would not rely on the cellphone tower evidence. It did not directly implicate Mr. Ferguson. However, it was never disclosed.
34A date of November 21, 2025, had been set aside to potentially begin the evidence in this trial after the October 30, 2025, hearing for the 11b application was adjourned. Defence counsel made themselves available for that date despite the difficulty in quickly rearranging their schedules. However, the Crown later informed them that the key Crown witness would not be available on that date, and the date was vacated.
35The trial is still scheduled to conclude after 18 months. However, Mr. Piccinin remains confident the Crown’s case will be finished by the end of January 2026.
Position of the Crown
36Crown counsel structured his written argument into three parts. First, he argues that Mr. Ferguson’s decision to change lawyers early in the process contributed to the delay. Second, he criticized Ms. Craig for not moving more quickly to secure trial dates after the May 5, 2025, JPT with Justice Fraser. If I accept these first two points, the total delay in this case is under 18 months. However, if I do not accept them, he argues that the case involved three co-accused, extensive disclosure, and several unusual features, which justify describing it as 'particularly complex' and requiring additional time beyond the standard Jordan ceiling.
37Mr. Piccinin augmented these written arguments during oral submissions. He argued that the case should properly fall under the Jordan ceiling because it is likely to conclude by January 30, 2026. The Crown has decided to pursue only one arson charge against Mr. Ferguson, and much of the disclosure material is no longer intended to be part of the Crown’s case at trial. The case has been significantly simplified.
38He could not comment on how prior members of his office had handled the file. However, he informed me that he was assigned to the case in September 2025 and was given the time he needed to thoroughly assess it. He needed to correspond with multiple OICs and review thousands of pages of material.
39He otherwise relied upon the written submissions of his colleague.
Position of the Defence
40Ms. Khan argues that the trial will take longer than 18 months to complete, and therefore, her client’s rights have been infringed. She asserts that a stay of proceedings is the appropriate remedy. In response to the Crown’s arguments, she contends that none of the time specified by the Crown should be considered defence delay. She also disputed the Crown’s final claim that the case involves “exceptional circumstances”.
41She disagreed that this is an under-the-ceiling case, as the anticipated end of the trial is still on March 16, 2026. However, even if the Crown’s new time estimate was correct and the case would be completed before the Jordan ceiling was breached, the reasons for the delay still demand a stay of proceedings. The defence has done everything reasonably possible to move this case along since they were retained, and the delay is solely attributable to the Crown’s office failing to properly formulate a plan to review and distribute the disclosure materials. It also failed to determine which charges would be pursued, and against which of the co-accused, for far too long. It was only in September 2025, 14 months after Mr. Ferguson’s arrest, that the Crown’s office finally began to make these crucial decisions. That is unacceptable.
Analysis
42In R. v. Cody, 2017 SCC 31, the Supreme Court summarized the steps to adjudicate a Charter section 11(b) motion:
Calculate the total delay from the charge to the anticipated end of trial;
Subtract delay waived by or attributable to the defence;
Compare the net delay to the presumptive ceiling;
If the net delay falls below the ceiling, then the onus is on the defence to show
that the delay is unreasonable.
- If the net delay exceeds the presumptive ceiling, the delay is presumptively
unreasonable.
43Mr. Ferguson concedes a total of 97 days of defence delay related to two discrete time periods. First, 92 days from October 20, 2025, to January 19, 2026, when Ms. Craig was not available, but the Crown, court, and other counsel were available. Second, five days from February 2-6, 2026, for the same reason.
44Even with these concessions, Ms. Craig and Ms. Khan submit that the proper calculation of net delay leaves the case just slightly over 18 months.
(i) Crown’s First Argument – Additional Periods of Defence Delay
45The Crown argues that a further period should be deducted from the total delay. Crown counsel points to the period when Mr. Ferguson was changing lawyers and submits that he somehow bears responsibility for any delay that resulted. Specifically, Crown counsel directed the court’s attention to the dates of June 10 to June 28, and July 29 to August 26, 2024, as what should be characterized as “defence delay.”
46Mr. Ferguson was effectively self-represented during the dates identified by the Crown. He was also in custody. As I understand the Crown’s argument, Crown counsel submits that Mr. Ferguson should be faulted for not taking sufficient steps to move the case forward. His decision to change lawyers was purportedly the cause of this period of delay.
47I do not find this argument convincing. As a matter of fact, I note that Mr. Ferguson requested disclosure on the court record, even when he was self-represented on both September 9 and 23, 2024. As an accused person in jail, there was little more he could do. Furthermore, I reviewed the transcripts of all of Mr. Ferguson’s court appearances, including those which occurred after the problems with delay in this case began to raise serious concerns. The Crown never made a claim that the timing of the anticipated trial dates had been compromised by Mr. Ferguson’s conduct when he was self-represented, and Crown counsel repeatedly conceded that major portions of disclosure remained outstanding well into the summer of 2025.
48Indeed, the Crown’s attempt to blame Mr. Ferguson is disappointing. As I will explain, the unnecessary delay that accumulated in this case was entirely due to the Crown’s failure to effectively manage the prosecution and to provide the disclosure materials in a timely manner. The pace of disclosure in this case and the Crown’s handling of its own file is amongst the worst I have ever encountered. It is the Crown’s constitutional obligation to provide disclosure materials to the accused. As stated by Charron J. in R. v. McNeil, 2009 SCC 3, at para. 17: (my emphasis added):
The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first-party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.
49In R. v. Drummond, 2024 ONCJ 170, I addressed the same argument presented here in another section 11(b) application, which was also plagued by the Crown's chronic failure to comply with its constitutional obligations. I repeat some of my comments from that decision here:
31The Crown, it is often remarked, is no ordinary litigant. It must ensure trial fairness, and Crown counsel, as officers of the court, have a duty to consider the rights of all justice system participants, including the accused.
32In Stinchcombe, the Supreme Court of Canada held that when an accused is unrepresented, “Crown counsel should advise the accused of his right to disclosure” and that a “plea should not be taken unless the trial judge is satisfied that this has been done”: see p. 343 (my emphasis added.)
40Ensuring that the rights of an unrepresented accused person are meaningfully protected is thus vital. An accused person does not waive his Charter section 11(b) rights by taking a reasonable amount of time to retain a lawyer. For marginalized and socially disadvantaged individuals, retaining a lawyer may be very difficult, and courts must be sensitive to that reality. In cases where the Crown cannot even provide disclosure when an accused person seeks to retain counsel, the argument that the accused has somehow waived those rights is entirely meritless. Accepting that argument would allow the Crown to weaponize its failure to meet its constitutional obligations. A more unjust outcome is difficult to imagine.
44The Crown’s disclosure requirements are not frozen in time until a lawyer is on the record. They start from the genesis of the prosecution. I note that the Law Society of Ontario’s Rules of Professional Conduct require prosecutors to make “timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses…”: see Rule 5.1-3.
50Justice Charron’s reference in McNeil to an accused person needing to request disclosure should not be mischaracterized. It was not intended to shield the Crown from its responsibilities, simply because the request by an accused person was not made in a certain format or with precise language. The Crown is expected to work diligently to meet its obligations under the Charter. This is especially true where an accused person is in custody, unrepresented, and their case is being repeatedly adjourned as they seek to retain counsel. The Crown, as a Minister of Justice, is mandated to move with alacrity to ensure that the constitutional rights of the accused are respected. The Court also has a duty to assist a self-represented accused and “guide him or her throughout the trial”: see R. v. Bancroft, 2024 ONCA 121, at paras. 6-7. That duty includes advising an accused person of their right to disclosure and information about how they can obtain and review it.
51Regardless, as previously noted, Mr. Ferguson did formally request disclosure when he was without a lawyer. Ms. Craig renewed those requests vigorously after she was retained. Despite these efforts, the Crown failed to provide meaningful disclosure to Mr. Ferguson until well into the latter half of 2025. It is not a serious argument to suggest that Mr. Ferguson was responsible for any delay in the period identified by the Crown, when the Crown itself repeatedly acknowledged in court that it was unable to provide the disclosure materials. It is instead an attempt to recharacterize the record of what was occurring in a light favourable to the Crown for the Jordan purposes.
52The Crown relies upon some authorities for the proposition that when an accused person retains new counsel, “the additional time required for new counsel to be retained, obtain disclosure, or redo any steps which have already occurred, such a Crown and judicial pre-trials, is deducted as defence delay”: see R. v. Bettes, 2024 ONSC 2684, at para. 22 (my emphasis added) and the cases cited therein. That argument is completely devoid of merit in a case such as this, where the Crown failed to meet its disclosure obligations by the time the accused retained new counsel, and no interim steps (such as a JPT) had ever been taken. There was nothing that had to be “redone” because it was never able to be done in the first place.
53I note the following excerpts from the transcripts filed by Ms. Craig in support of her client’s application, which reveal what was happening as this case languished for over a year after Mr. Ferguson was charged.
June 23, 2025 – Proceedings Before Justice Fraser
K. SAJID (defence): Your Honour, I can begin. We – we attended the trial scheduling conference on Friday. We do have dates. The dates push us past the Jordan timelines, and there’s still outstanding disclosure that’s - remains to be an issue, one of them being the ITO. I know my friend advised that the ITO would be disclosed on Friday. That hasn’t happened, and we need the ITO to likely schedule the Garofoli motion.
54Importantly, the Assistant Crown Attorney in court at the time frankly acknowledged the state of disclosure and the unfortunate inevitability of an 11b motion. That is to her credit, as it allowed the court to have a frank assessment of how dire the situation had become. What occurred is worth repeating:
Crown: I was certainly not surprised that Mr. Sajid and Mr. Luscombe may be seeking an 11(b) application, given....
A. CRAIG (defence): As will I, yeah, for the record. Regardless of the dates.
THE COURT: Sorry, Ms. Craig? What was that?
A. CRAIG: We will also be bringing an 11(b) regardless of the dates, Your Honour. It’s 11 months in, and there’s still half the disclosure missing and my client’s in custody.
55In addition, counsel relayed to Justice Fraser that scheduling a 10-day trial at 10 Armoury Street for the balance of 2025 was not possible.
K. SAJID: I was just going to say that I know that there are some issues with Ms. Craig’s availability, but the trial coordinator had also advised during the scheduling of the dates that it would have been very difficult to schedule this within this current year. So, obviously that’s going to be a factor, but the trial coordinator had also advised that, you know, it’s - trying to schedule 10 dates in - in this year would have been very difficult.
56Counsel continued and informed Justice Fraser that no December 2025 dates were offered by the trial coordinator’s office whatsoever, by way of an example of that difficulty.
57How the ITO for the search warrants was handled and ultimately disclosed in this case is a glaring example of what was truly causing the delay in bringing this case to trial. Search warrants were executed on June 5, 2024. The ITO was not disclosed until nearly 11 months later. However, after this occurred, Crown counsel accepted on the court record that its office bore responsibility for improperly disclosing confidential source information and then had to contact defence counsel to ensure those documents were returned for proper vetting. This resulted in additional delay. It was not until June 29, 2025, that the Crown finally provided a redacted copy of the ITO. That was close to 13 months after the charges were laid.
58Inadvertently revealing confidential source information is one of the most serious errors Crown counsel can make, for reasons well documented in the Supreme Court’s jurisprudence: see, for example, R. v. Leipert, 1997 CanLII 367 (SCC), at para. 9. Indeed, in a recently published ruling, Justice Campbell of the Superior Court of Justice held that even the inadvertent disclosure of information that might identify a confidential informant is a violation of the informant’s constitutional rights under section 7 of the Charter of Rights and Freedoms: see R. v. C.I.P., 2025 ONSC 5600, at para. 25. As Justice Campbell eloquently wrote, the very lives of informants are placed at risk when the Crown makes these terrible mistakes: see paras. 32-3.
59I cannot determine how this error occurred based on the materials provided to me for this application. Nor is it necessary for me to do so, and Ms. Khan did not seek to further explore this facet of the reasons for the delay in bringing this case to trial during oral argument.1 I also wish to acknowledge the professionalism of the Crown in court at the time, who wisely recognized the severity of this problem and the need to address it. However it happened, it was a serious failure on the part of the Crown’s office and added to the mounting disclosure problems in the prosecution of Mr. Ferguson.
60To settle any doubt about whether the Crown was aware of the deepening problems with delay, Justice Fraser noted on June 23, 2025, that he would “attach some priority to this [case], because it seems to me there’s 11(b) jeopardy.”
61On July 2, 2025, the parties appeared before Justice Fraser again. The Crown did not dispute that there were still substantial disclosure items outstanding. Mr. Luscombe, counsel on behalf of one of the co-accused, stated:
We - we - we received very voluminous disclosure on Friday, many, many, many gigabytes. Worse, far more than we have received thus far. Some of the, essentially, outstanding disclosure is pertinent to the information to obtain, the new version we had just received on the weekend. And that we recognize that that will likely have a bearing on a - a potential, though, at this point likely expected, Garofoli application down the road.
62The Assistant Crown Attorney in court did not suggest any of this was inaccurate.
63It should go without saying that over a year into the case, when section 11b problems were already readily apparent, “gigabytes” of disclosure should not need to be provided to the defence. If there is a good reason for such an inordinate delay, it should be provided. Yet no explanation was ever stated to the court as to why it had taken so long for this additional material to be provided.
64The Crown made other unprofessional errors. Crown counsel missed a scheduled JPT with Justice Fraser on August 7. Then, Crown counsel apparently misrepresented the availability of the vital outstanding cellphone tower data at a further JPT on August 19. On that date, before Justice Fraser, the Crown said the material in question was available and would be provided to the defence. Justice Fraser’s JPT notes from that date confirm this fact. A week later, on August 26, when appearing before a Justice of the Peace, another member of the Crown’s office advised the court that they had not yet received this material. I reproduce an important portion of the transcript of that proceeding below.
August 26, 2025 – Proceedings Before Justice of the Peace Shawyer
Articling Student L. STODDART on behalf of counsel Luscombe, T (defence): We had a continuing JPT with Justice Fraser on August 19th where we discussed outstanding disclosure issues including mechanical records for our client's car that the police have and the cell tower ping data that we've been waiting for, for months.
Crown: I can see that they just had the JPT recently, Your Honour, and the Crown is working to obtain that disclosure to provide to them.
THE COURT: And are there any notes about whether or not the disclosure is now within the possession of the Crown's office properly as opposed to the police?
Crown: I can see it's been requested but has not yet - we have not received it yet.
65I pause here to comment on the disturbing nature of this inconsistency. I received no evidence, such as an affidavit filed on behalf of the Assistant Crown Attorney who appeared at the JPT before Justice Fraser, to explain how this misrepresentation about the availability of these disclosure materials could have been made. If the Assistant Crown Attorney who appeared at the August 19 JPT knowingly misled Justice Fraser, that would bring great harm to the repute of the administration of justice and the Crown’s office specifically. If that Assistant Crown Attorney made this false representation by accident, it would suggest that they did not have a comprehensive understanding of the status of their own file or whether this fundamental item of disclosure was in the possession of the Crown and ready to be disclosed, over a year after the charges had been laid.2 Mr. Piccinin confirmed on November 27, 2025, that these materials were never disclosed.
66The value of a JPT is dramatically undermined if counsel does not attend them prepared and knowledgeable about their files. For the assigned representative of the Crown’s office to attend a further JPT that was specifically intended to address the ongoing problems regarding disclosure, without an accurate understanding of the status of those outstanding disclosure materials, is inexcusable: see R. v. Aden, 2023 ONSC 766, at para. 109.
67To summarize, the disclosure of the ITO was seriously mishandled in this case. False statements about the availability of cellphone tower data were made to Justice Fraser. Gigabytes of electronic disclosure were being dropped on defence counsel over a year after the charges were laid. The assigned Crown was missing scheduled JPTs. I conclude that as the disclosure problems associated with Mr. Ferguson’s prosecution grew, careless mistakes were being made. Despite these problems and setbacks, I emphasize that no plan was ever presented to Justice Fraser, even after five JPTs, to explain how the outstanding disclosure would be provided in a timely and professional manner.
68Mr. Piccinin revised the Crown’s determination of which charges had a reasonable prospect of conviction after he took over the case in September 2025. He was also finally able to conclude that the cellphone tower evidence would not be necessary to prosecute Mr. Ferguson. He alluded to the fact that when he was assigned, he had more time to devote to the case than his prior colleagues. I commend him for his hard work to properly assess the prosecution. But there is no excuse for the way this case was handled prior to his involvement, and the conduct of the Crown’s office must be viewed and assessed in its entirety. 14 months after Mr. Ferguson was arrested was far too late for these important decisions to be made.
69Defence counsel in this case (including the lawyers for the prior co-accused) did everything reasonably possible to move the case along responsibly. The Crown, and the Crown alone, bears responsibility for this prosecution falling apart. All the disclosure material should have been provided within 60-90 days of the accused parties’ arrest.3 Had it been obtained earlier in the proceedings, a trial estimate could have been obtained sooner, and trial dates within the Jordan ceiling secured. The disclosure items that held up this case’s progress were in the possession of the investigating police force from the moment the applicants were arrested.4 While the Crown is not obligated to provide every item of disclosure before trial dates should be set the outstanding materials in this case were of great importance and went to the core of not only proving Mr. Ferguson’s involvement in the acts of arson but also to any potential Charter applications he might have pursued: see R. v. Allison, 2022 ONCA 329, at paras. 44-52.
70I have virtually no evidence of the steps the Crown took to obtain the outstanding disclosure items, despite over a year of waiting, multiple requests by counsel and the accused, and concerns expressed by Justice Fraser. Nor was evidence presented to justify the delay in providing these crucial disclosure materials to the accused parties. There is no evidence that the Crown developed a plan and implemented it with the investigating police force to ensure that all disclosure materials were provided in a timely manner. Nothing was filed by the Crown, even something as simple as an email to the OIC outlining the problems with the file and the urgent need to prioritize resolving the outstanding disclosure issues.
71In conclusion, none of the time identified by the Crown should be characterized as defence delay. Nor can the Crown point to good faith efforts it took to ameliorate glaring difficulties with its ability to fulfill its constitutional obligations. The record is clear. Any delay in setting trial dates for Mr. Ferguson, including time needed for applications or motions, was caused by the glacial pace of disclosure. Mr. Ferguson’s decision to switch lawyers in 2024 did not result in additional delay.
72As noted by Justice Thomas in R. v. Turcios, 2024 ONCJ 628, the Crown’s obligation to provide disclosure materials is an ongoing constitutional duty that must be respected. Any suggestion that the Crown is only responsible for delay caused by late disclosure “if it impacts the initial scheduling of a trial, is misguided.” The argument “displays a misunderstanding of the Crown’s duties”: see para. 40.
73When substantial disclosure is not provided within a reasonable period after criminal charges have been laid, many adverse consequences inevitably follow. The Crown will be unable to assess whether there is a reasonable prospect of conviction, how long a trial might take, and what applications it may seek to bring. It is almost impossible for defence counsel to accurately estimate their response time to the Crown’s case or how they might challenge the admissibility of evidence the Crown plans to rely upon. A judge presiding at a JPT is also left in a frustrating position, as authorizing limited court time cannot be done efficiently when neither the Crown nor the defence has had an opportunity to comprehensively review the evidence likely to be presented in the case and explain their trial estimates. We are left to make an educated guess. Time may be improperly allocated accordingly. Those time estimates may need to be significantly adjusted later, when the disclosure materials finally arrive.
74Defence Counsel will then need an opportunity to review the late disclosure with their client and possibly reformulate their strategy. Yet another JPT may need to be scheduled, creating yet more work for the lawyers and a judge. Nearly ten years after Jordan was released and the culture of complacency was condemned, the degree of Crown mismanagement that characterized nearly the entire history of these proceedings cries out for condemnation.
(ii) Crown’s Second Argument – Delay in Setting the Trial from May 5 – June 20, 2025
75At a JPT held on May 5, 2025, Justice Fraser indicated that the case should be set down for a trial with targeted dates, despite there being outstanding disclosure. Justice Fraser ordered that the Office in Charge (“OIC”) of the case attend at the next JPT to explain why so much material remained to be disclosed.
76The Crown argues that the defence is responsible for the period between this date and June 20, 2025, when the parties attended a trial scheduling conference to obtain trial dates.
77A review of the court appearances during and shortly after this period contradicts the Crown’s claim. On May 12, 2025, Mr. Ferguson raised concerns again about the status of disclosure. An adjournment to June 23 was granted due to the need for a continuing JPT. The Crown did not indicate in court that it wanted to set a trial date, and Ms. Craig had, for some reason, refused.
78On June 17, Crown Counsel did not attend a scheduled judicial pre-trial. I received no explanation for this absence.
79On June 23, the case was adjourned to June 24 for an update about the most recent JPT.
80On June 24, the trial dates were entered on the record, along with the need for a further JPT to address ongoing disclosure problems.
81I have no other evidence from the Crown that it was taking steps to set a trial date between May 5 and June 20, 2025, and the defence was somehow obstructing those efforts. To the contrary, the record demonstrates that despite significant outstanding disclosure materials, Ms. Craig and the Crown obtained trial dates together. The Crown’s argument is therefore rejected.
(iii) Crown’s Third Argument – Exceptional Circumstances
82Exceptional circumstances lie outside the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Generally, exceptional circumstances fall under two categories: (1) discrete events, and (2) particularly complex cases: see Jordan, supra at paras. 69-71.
83A case will be complex if the nature of the evidence or the issues requires an inordinate amount of trial or preparation time. This can include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. It can also include many pre-trial applications and/or novel or complicated legal issues. Determining the complexity of a case is a qualitative rather than quantitative assessment: see Jordan at para. 77; Cody at para. 64.
84Originally, Mr. Ferguson’s case involved two other co-accused. However, the presence of multiple accused persons does not, by itself, render a case particularly complex. In R. v. Albadry, 2018 ONCJ 114, Doody J. held that it should have been obvious to the Crown that proceeding against multiple accused together would somewhat complicate proceedings. Moreover, the exercise of prosecutorial discretion must conform to the accused’s s. 11(b) rights. In this case, the Crown chose to proceed jointly against the three accused parties but, as I have explained, failed to take the necessary steps to move the joint prosecution forward expeditiously with due regard to the need to provide the parties with access to the disclosure materials within a reasonable period of time: Jordan at para. 79; Albadry at paras 27-28, 31.
85I appreciate that the complexity of a case must be assessed on the basis of the entire course of the proceeding, not merely on what is likely to be presented at trial: see R. v. Picard, 2017 ONCA 692, at para. 57. However, the issues in this case are relatively straightforward. The main issue in dispute is the identity of the suspects. The matter was scheduled for 13 days, comprising a Garofoli application and a trial. While it is a lengthier matter for the Ontario Court of Justice, it is not “exceptional.” The existence of a search warrant or production order, an accompanying ITO, cellphone records, and multiple surveillance videos does not make the case so complex that, for constitutional purposes, the Jordan ceiling can be exceeded.
86Even if the case were so complex, the Crown must demonstrate that it made sustained efforts and developed a plan to address the complexity and volume of disclosure. I have heard nothing to suggest that anything of that nature occurred, and much to demonstrate, unfortunately, that the prosecuting Crown's office did not even fully understand its own case and the disclosure materials it was required to provide until over a year after the charges were laid.
87In Picard, a first-degree murder case was prosecuted on the basis of largely circumstantial evidence. The disclosure consisted of 30,000 pages, 2,800 photographs, dozens of video-recorded witness statements, 6,800 pages of cellphone records, 25,000 text messages, 103,000 lines in Excel of records from Picard’s phone, 78 witnesses interviewed, 60 judicial authorizations, and eight separate areas of expert evidence. The Court of Appeal ultimately upheld the trial judge’s finding that, despite the amount of disclosure, it did not rise to the level of a particularly complex case for Jordan purposes: see paras. 61-9.
88In support of its position, the Crown relied upon the Court of Appeal’s decision in R. v. Jurkus, 2018 ONCA 489. In Jurkus, the respondents were a correctional officer and an operational manager at the Elgin-Middlesex Detention Centre. They were on duty when an inmate was beaten to death. They, and a third person, were charged with failing to provide the necessaries of life to the deceased. The charges against the third co-accused were withdrawn at the outset of the preliminary hearing. The trial judge granted a stay of proceedings due to excessive delay in the case.
89The Court of Appeal overturned the trial court’s decision. It held that, properly calculated, the resulting delay for the respondent Jurkus was three weeks above the Jordan ceiling. It also concluded that the complexity of the proceedings justified those three weeks. The Court of Appeal affirmed that complexity can arise from having multiple co-accused: see para. 67.
90This case does not assist the Crown. While the Court of Appeal found that providing disclosure in Jurkus took “a considerable amount of time”, it did not conclude that the Crown’s ongoing disclosure obligations delayed the trial. That is entirely at odds with my findings in this case. The Court of Appeal also concluded that the defence lawyers in Jurkus were “not unhappy” with the pace of the proceedings, and many adjournments requested were made “on the consent of all parties”: see paras. 79-80. Again, that is not what occurred in Mr. Ferguson’s case.
91Finally, the vast majority of the proceedings in Jurkus pre-dated the release of Jordan. After Jordan was released in 2016, an 11(b) application was brought. The Court of Appeal held that the transitional exceptional circumstance, unique to cases of that nature, applied, which was a basis in itself to grant the Crown’s appeal: see para. 100.
(iv) Crown’s Fourth Argument – Under The Ceiling
92The anticipated end of the trial remains March 16, 2026. Mr. Piccinin argued that there is good reason to believe it will be completed by January 30, 2026, and thus fall under the Jordan ceiling by one month.
93I do not accept that I should decide this case based on optimistic views of when a trial might end. Normally, a judge hearing an application of this nature should accept the trial estimate approved by the JPT judge that was formulated following discussions with counsel. To accept the Crown’s argument would be to engage in speculation. Trials can often change. Sometimes they finish sooner than expected, but sometimes later than expected. I do not have a sufficient record to draw this hopeful conclusion. Nor can the defence be expected to commit to a precise estimate of how long its response to the revised Crown’s case may take until it sees how exactly that case is presented. The Crown has not been consistent regarding how it will prosecute Mr. Ferguson or what evidence it will rely upon.
94This case remains set to conclude after 18 months. But even if this case were completed one month below the ceiling, I would still find a violation of Mr. Ferguson’s Charter section 11(b) rights.
95Jordan established that delay falling below the presumptive ceiling would be unreasonable where the defence establishes that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have”: see para. 48. Unless the defence establishes both requirements, the s. 11(b) application must be dismissed: R. v. Campbell, 2022 ONCA 223, at paras. 20-23.
96In R. v. K.J.M., 2019 SCC 55, the Supreme Court clarified the nature of the “ceilings” established in Jordan at para. 69:
While the presumptive ceilings are a significant chapter in Jordan, they are not the whole story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility.
97A case's reasonable time requirements “derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”: see Jordan at para. 87.
98The Crown’s office, prior to the assignment of Mr. Piccinin, woefully failed in its obligations to properly manage this case and the disclosure materials associated with it. Now, as I heard during the argument on November 27, 2025, the Crown believes it can finish its case sooner than expected. Ms. Khan rightly submitted that this was a paradoxical argument for the Crown, as it sought to argue on this application that the case was both so complex as to justify a time limit above the Jordan ceiling, yet was also so simple that it could also be completed under the Jordan ceiling.
99The majority of the Supreme Court of Canada noted in Jordan that most cases “can and should” be completed in less time than the hard ceilings established in that ruling: Jordan at para. 56. The Ontario Court of Justice implemented a new Jordan-compliant scheduling practice directive on November 1, 2023, to ensure all cases are heard within 15 months. The Directive also creates the expectation that matters will be resolved or set down for trial within six months: see Ontario Court of Justice, “Practice Direction: Jordan-Compliant Trial Scheduling.” That did not happen in this case, as target dates for a trial were not obtained until over a year after the information was laid. No specific evidence was presented to explain why the directive was not followed in Mr. Ferguson’s case. The only reasonable conclusion I can draw from the evidence is that the significant disclosure problems precluded setting a trial date until Justice Fraser required the parties to do so.
100The Crown’s revised time estimate only demonstrates that, had the file been managed properly from the outset, it could have been set for trial at a much earlier date. The Crown cannot have it both ways. If the case, once properly assessed, is truly as straightforward as the Crown now suggests, it should have made that determination much sooner. A short trial can be obtained in this courthouse much earlier than 17 months after charges have been laid. The Crown cannot fail to act, allow nearly a year of delay to accumulate, and then turn the Jordan analysis on its head on the eve of the trial, once it has finally exercised its professional duties. Its obligation to act diligently arose from the case’s inception, not on the eve of an 11b application.
Conclusion
101This case serves as a reminder of the importance of the Crown taking a proactive approach to meeting its disclosure obligations. That will often require an early assessment of the materials that must be provided and how to obtain and vet them with the assistance of the investigating police force. It will also require that the Crown commence, as early as possible, a thorough review of the complexities of the prosecution and a realistic plan for charting the course of the case as it moves toward trial. None of that occurred here.
102When the Crown fails to act with the degree of professionalism and due diligence that must be demanded of any criminal prosecution, it is responsible for the adverse outcomes that will inevitably follow.
103The application is granted, and a stay of proceedings is entered.
Released: December 1, 2025
Signed: Justice B. Jones
Footnotes
- While I am assigned to hear this application, I am not the trial judge. Pursuant to the Ontario Court of Justice Practice Direction: Section 11(b) Charter Applications], the s. 11(b) application judge is appointed a case management judge under s. 551.1 of the Criminal Code for the purpose of hearing and determining the s. 11(b) application. If this matter were to go to a trial, it would be for the trial judge to determine whether this breach of CS privilege needed to be addressed further.
- I recognize that if these were third-party records not in the possession of the police or the Crown, they would not constitute first-party disclosure. It was not in dispute for the purpose of this application that the investigating police force had control of this item of disclosure and that the Crown accepted it bore responsibility for the delay in providing it: see R. v. Jalili, 2018 ONSC 6408, at paras. 47-67.
- Indeed, the Ministry of the Attorney General’s new “Protocol for Timely Disclosure in Criminal Cases” sets out a timeline for the provision of disclosure of this nature. In cases where there is not a sealing order, the material should be provided within six weeks (see section 7.1) In other cases, the material should be provided within 12 weeks (see section 8.1.) The protocol goes into effect February 1, 2026.
- I heard no evidence to the contrary, and the application was argued on this basis.