R. v. Eagen, 2025 ONCJ 687

ONTARIO COURT OF JUSTICE

CITATION: R. v. Eagen, 2025 ONCJ 687

DATE: 2025 12 23

COURT FILE No.: Central West (Peel) Region 998-2331112342

BETWEEN:

HIS MAJESTY THE KING

— AND —

RYAN EAGEN

Before Justice R. Tomovski

Ruling on s. 11(b) Charter Application

Heard on December 16, 2025

Reasons for Judgment released on December 23, 2025

Lawrence Eikelboom......................................................................... counsel for the Crown

Ryan Eagen……………….……………...……………………………….. on his own behalf

Tomovski J.:

I. INTRODUCTION

1The Applicant’s first trial was scheduled to proceed below the Jordan presumptive ceiling. However, the trial did not proceed and is currently scheduled to proceed above the presumptive ceiling. The key issues in dispute are who is responsible for the adjournment of the first trial and whether and how the ensuing delay between the first and second trial should be apportioned.

2The Applicant brings an application pursuant to s. 11(b) of the Charter, alleging a breach of his right to be tried within a reasonable time. He seeks a stay of proceedings. The Applicant argues that the first trial was adjourned because of disclosure and, what he refers to as, “restructuring” issues and, therefore, the ensuing delay to the second trial should be attributed as crown or court delay.

3The Crown argues that the first trial was adjourned at the Applicant’s request because of his dissatisfaction with the s. 486.3 court-appointed lawyer’s conduct leading up to the trial, which the trial judge held was unfounded. As a result, the Crown argues that the entire delay between the first and second trial is defence delay.

4For my reasons that follow, I allow the application. I find that once defence delay is deducted from the total delay, the net delay is above the presumptive ceiling and the Crown has failed to rebut the presumption of unreasonableness and prove the existence of exceptional circumstances justifying the delay. Although the first trial was adjourned at the request of the Applicant because of his misplaced distrust of the court-appointed lawyer and request that a new lawyer be appointed, the Crown and court failed to try to minimize the ensuing delay in setting the second trial resulting in the delay being apportioned between the Crown and the Applicant.

II. BACKGROUND

5The Applicant is self represented. He is charged with criminally harassing the complainant between October 5 and November 2, 2023. The Information was sworn on November 6, 2023. The anticipated end of trial is April 30, 2026, the third day of a three-day trial. As a result, the total delay is 906 days or 29 months, which is well over the Jordan presumptive ceiling for unreasonable delay of 18 months for a trial in the Ontario Court of Justice, when the Crown has elected to proceed summarily, which it has in this case.

6For analytical clarity, the history of the proceedings can be divided into three phases: the setting of the first trial, the adjournment of the first trial, and the setting of the second trial.

a. The Setting of the First Trial

7The applicable period is from when the Information was sworn on November 6, 2023, to the start of the first trial on April 29, 2024.

8The Applicant was charged on November 15 and given a first court date of November 28. He appeared in court on November 28 and then on December 19 and was advised by the Crown each time that disclosure was still being vetted. On December 19, rather than insisting on receipt of disclosure before setting a pretrial, the Applicant was proactive and requested that a judicial pretrial be set. The presiding Justice obliged and set the earliest available pretrial of February 20, 2024. Following completion of the judicial pretrial, the case was adjourned at the Applicant’s request to March 28 and then April 11 to consider the Crown’s resolution offer.

9The Applicant was first advised on March 28 that if the case did not resolve, and proceeded to trial, the Crown would seek to have a lawyer appointed to cross-examine the complainant pursuant to s. 486.3(2) of the Criminal Code.

10At the April 11 court appearance, the Applicant declined the resolution offer and confirmed his intention to proceed to trial. The court advised that it was “too late in the day to set a trial date”. No time was noted, and no reason was given for why it was too late. The case was adjourned to April 18 to set a trial date. Before the case was adjourned, the Applicant stated that he believed disclosure was incomplete. However, he did not identify at that time which items he believed were missing.

11Like the preceding court date, the Applicant was advised that he could not set a trial date, this time because an officer, who was required to be present to set the date, had already left for the day. The Applicant reiterated his belief that disclosure was incomplete. The case was adjourned to April 22, but before it was, the judge made an order appointing a lawyer to cross-examine the complainant. When asked for his comment before the order was made, the Applicant stated, “I don’t really think I need to be honest…I guess I’ll have one in case”.

12The trial scheduling appearance occurred on April 22. The first date offered by the court for a two-day trial was the following year on April 29-30, 2025. The date fell just below the Jordan presumptive ceiling. The order appointing counsel was confirmed as having been previously made. The Applicant provided his telephone number and email address and was told he would be sent a copy of the order. The case was adjourned to January 30, 2025 to allow time for the court-appointed lawyer to contact the Applicant. The Applicant did not make any reference to the missing disclosure at this time.

13At the January 30 court appearance, a representative of the court-appointed lawyer attended and advised that they had reached out to the Applicant and had not heard back. The representative and the Applicant exchanged information and confirmed the lawyer would get in contact with the Applicant before trial. The Applicant referenced a McNeil report that was outstanding. The Crown promised to follow up. No other items of disclosure were referenced by the Applicant. The case was adjourned to the first day of trial.

b. The Adjournment of the First Trial

14The trial did not proceed as scheduled on April 29, 2025. On that date, the Applicant sought an adjournment and a new court-appointed lawyer because he lost confidence in the lawyer initially appointed by the court (pp. 11 and 24 of the April 29, 2025 and p. 3 of the May 29, 2025 transcripts). The basis for the Applicant’s request was that, in advance of the trial, he asked the lawyer to find out the Crown’s current resolution position and when the Applicant was told the position, and did not accept it, he believed the lawyer had colluded with the Crown, which he felt compromised both the lawyer’s ability to act at trial and the Applicant’s right to a fair trial.

15The trial judge granted the adjournment even though the Crown was ready to proceed to trial, including the complainant being present. Although the trial judge did not find any impropriety on the lawyer’s part, he found it was in the interests of justice that the Applicant has confidence in any court-appointed lawyer. The judge stated (at p. 2):

The reason I’m gonna adjourn this case is I’m concerned, not that there’s any reality to a suggestion that 486 counsel in this case has done anything inappropriate because I highly doubt that she has done anything inappropriate. But, and notwithstanding the fact that 486 counsel is not counsel to the accused, it is in the interests of justice that there be some level of at least an absence of inappropriate distrust between 486 counsel and the accused…[N]ot that 486 counsel did anything wrong here

16Having granted the adjournment, the trial judge took on a case management role to oversee several outstanding issues including appointing a new 486.3 lawyer, increasing the trial estimate to three days based on late Charter motions filed by the Applicant, including on the morning of trial, that had not been factored into the original time estimate, and scheduling a potential disclosure motion. The judge adjourned the case to May 29 for a judicial pretrial and for a new trial date to be set.

17Regarding the McNeil report referenced by the Applicant at the January 30 court appearance, the Crown confirmed it was previously disclosed to the Applicant but agreed to share another copy.

c. The Setting of the Second Trial

18Before the first trial was adjourned, the trial judge directed that a new date be set “as quickly as possible”.

19The trial scheduling appearance occurred on May 29. The first date offered by the court for a three-day trial was June 18-20, 2025. However, this date could not be set because rules 3.1 and 2.6, respectively, of the Criminal Rules of the Ontario Court of Justice require service 30 days in advance of the Applicant’s disclosure motion being heard (i.e., June 28, 2025) and the motion being heard 30 days prior to trial (i.e., July 28, 2025). The next date offered by the court was April 13-15, 2026, ten months after the first trial, which was available to the Applicant and the Crown and set as the current trial date.

20At the time the first trial was cancelled (April 29) and when the trial was rescheduled (May 29), a s. 11(b) waiver was not canvassed with the Applicant nor was he advised of the consequences of seeking an adjournment of the first trial.

21A s. 11(b) Charter application was scheduled and proceeded before me on December 16, 2025. I reserved my reasons to December 23.

III. ANALYSIS

a. The Jordan Framework

22The Supreme Court in R. v. Jordan, 2016 SCC 27 outlined the framework by which delay is to be assessed under s. 11(b) of the Charter. The framework as it applies to the Ontario Court of Justice is summarized as follows.

23There is a presumptive ceiling of 18 months: Jordan at paras. 5, 46, 49, and 105. Delay above that mark is presumptively unreasonable, whereas delay below it is presumptively reasonable: at paras. 47-48, 68, 82 and 105.

24Delay is considered and calculated in different ways at different stages of the framework. At the outset, the total delay must be calculated. This period is calculated from the date of the charge to the end of the trial: Jordan at para. 60. The former equates with the date the Information is sworn: see R. v. Allison, 2022 ONCA 329 at paras. 35-43; R. v. Kalanj, 1989 CanLII 63 (SCC).

25Defence delay is subtracted from the total delay: Jordan at paras. 49, 60, and 66.

26Defence delay can result from an explicit or implicit waiver or delay caused solely or directly by the defence’s conduct: Jordan at paras. 61, 63 and 66. An example of the latter is when the Crown and court are ready to proceed but the defence is not: at para. 64. However, legitimate defence conduct is not defence delay: at para. 65.

27When the delay is above the presumptive ceiling, the onus is on the Crown to establish the presence of exceptional circumstances that justify the delay: Jordan at paras. 47, 68, 81 and 105. Exceptional circumstances are circumstances that are reasonably unforeseen or reasonably unavoidable and the ensuing delay emanating from those circumstances cannot reasonably be remedied by the Crown: Jordan at para. 69. The Crown must show that it took reasonable steps to avoid the delay before the presumptive ceiling was surpassed: at para. 70. Those steps need not be successful in preventing the delay: at para. 70.

28Generally, exceptional circumstances fall into two groups: discrete events or particularly complex cases: Jordan at para. 71. The former includes medical emergencies or unexpected illnesses, whereas the latter includes cases with novel or complicated legal issues, voluminous disclosure or many witnesses requiring a lengthy trial: at paras. 77-78. Like defence delay, delay caused by exceptional circumstances is subtracted from the total delay: at para. 75.

29When the delay is below the presumptive ceiling, the onus is on the Applicant to show that the delay is otherwise unreasonable by establishing that it “took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and the case took “markedly longer than it reasonably should have”: Jordan at paras. 48, 82 and 105.

30Meaningful and sustained steps include seeking and setting the earliest available trial dates and giving notice when delay is becoming a problem: Jordan at para. 85. Whether a case took markedly longer considers multiple factors including the case’s complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: at para. 87.

31Stays beneath the presumptive ceiling will be granted only in clear cases: Jordan at para. 83.

b. Jordan Applied

32The total delay in the Applicant’s case is from November 6, 2023 (the date the Information was sworn) to April 30, 2026 (the anticipated end of trial). The total delay is 906 days or 29 months.

i. Exclusively Defence Delay

33I find there are three periods of delay that are exclusively defence delay and are to be deducted from the total delay.

34First, following completion of the February 20, 2024 judicial pretrial, the Applicant sought multiple adjournments to consider the Crown’s resolution offer. It was not until April 11 that the Applicant declined the Crown’s offer and requested to set a trial date. I accept the Crown’s concession that one week is an appropriate period of time following the judicial pretrial for the Applicant to consider the resolution offer. Less one week, I find this period is defence delay. Subtracting this 44-day period from the total delay of 906 days leaves a net delay of 862 days.

35The second period is from April 11 to 18, 2024. The case had returned on April 11 for resolution but because the Applicant unexpectedly changed course and requested to set a trial, the court was unable to accommodate the request on short notice. The case was adjourned to April 18 to set the trial date. I find this period is defence delay. Subtracting this 7-day period from the net delay of 862 days leaves a net delay of 855 days.

36I do not find the period from April 18 to 22 to be defence delay. The Applicant was present in court on April 18 when his case was called but the officer, who sets the date on behalf of the Crown, had already left for the day. The Applicant was ready to set a trial date, but the Crown was not. In those circumstances, the ensuing delay to April 22 to set a trial date is not defence delay.

37The third period of exclusively defence delay is from May 29 to July 28, 2025. After the first trial was adjourned at the Applicant’s request on May 29, the latter date is the earliest the second trial could have proceeded while still allowing for the Applicant to comply with the notice and time requirements under the Criminal Rules in order to advance his disclosure motion, a motion he chose not to file in advance of the first trial but only after the first trial was cancelled. Subtracting this 60-day period from the net delay of 855 days leaves a net delay of 795 days.

ii. Not Exclusively Defence Delay

38This period is from July 28, 2025 to April 30, 2026, which is the earliest a second trial could have proceeded to the anticipated end of the current trial. After having considered all relevant circumstances, I find apportioning this 276-period of delay between the Applicant and the Crown and court is warranted based on the principle in R. v. Hanan, 2023 SCC 12.

39In Hanan, at para. 9, the Supreme Court rejected a bright-line rule of attributing all of the ensuing delay to the defence after the rejection of an initial date because of unavailability. Instead, a contextual analysis was emphasized in which all relevant circumstances are to be considered to determine whether and how the ensuing delay should be apportioned: see also R. v. M.E., 2025 ONCA 729 at paras. 17-18 and 26; R. v. Jacques-Taylor, 2024 ONCA 458 at paras. 5-7; R. v. Shaporov, 2025 ONCA 281 at para. 33; and R. v. Jones, 2025 ONCA 103 at para. 33. Relevant circumstances include the reason for the need to reschedule and whether it was caused by the defence; the extent to which the defence was available; and the reasons for the defence unavailability: R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-48.

40In R. v. K.D., 2025 ONCA 639, the Court of Appeal clarified the application of Hanan. At para. 46, van Rensburg J.A. noted, “it is not that the apportionment of delay is warranted in every case, but rather that the circumstances of every case must be considered to determine whether apportionment is warranted”. In Jones, supra, at para. 32, the Court of Appeal further clarified that Hanan did not “adopt an inverse bright-line rule apportioning the defence with none of the delay”.

41Apportionment of delay based on the principle in Hanan has been applied to different situations. Hanan, itself, involved apportioning delay caused by the need to reschedule a trial because of Crown fault. K.D. and Jacques-Taylor, supra, both involved apportioning delay in the scheduling of an initial trial date, which involved no fault: see also R. v. R.W., 2025 ONSC 2297 at paras. 42-47. M.E., supra, involved apportioning delay both in the scheduling of an initial trial date and in scheduling a trial continuation date. Jones, supra, involved apportioning delay in the scheduling of a judicial pretrial, which involved no fault: see paras. 22-36.

42A contextual approach permits apportioning delay in situations where the court has limited availability for large periods of time. As noted by van Rensburg J.A. in K.D., supra, at para. 45:

[T]he defence cannot fairly and reasonably be held wholly responsible for a span of time largely comprising a period where the court was unavailable. This is so even if the period of delay began because the defence was not available on the first date offered

In the Applicant’s case, the first date offered was the only date offered. The court was otherwise unavailable for nine months when rescheduling the trial.

43The contextual approach in apportioning delay is not contingent on exceptional circumstances or crown delay having caused the need for another date. This approach was expressly rejected in K.D. At para. 46, van Rensburg J.A., stated:

[T]he Crown sought to limit the applicability of apportionment pursuant to Hanan to cases where the need for continuation dates was caused by an exceptional circumstance. However, nothing in Hanan limits the principle that “’[a]ll relevant circumstances should be considered to determine how delay should be apportioned among the participants”

44In applying the guidance from Hanan and subsequent cases to the period from July 28, 2025 to April 30, 2026 (the earliest the second trial could have proceeded to the anticipated end of the second trial), I must consider all relevant circumstances in deciding whether, and how, to apportion the delay. Relevant factors, as referenced, include the reason for the need to reschedule and whether it was caused by the defence and court availability in rescheduling the trial.

45The Crown argues the entire period between the adjournment of the first trial to the second is defence delay, because the Applicant’s actions solely caused the need for an adjournment. He further argues that the adjournment was necessitated by the Applicant’s misplaced distrust of the court-appointed lawyer and his request that a new lawyer be appointed. Although I agree the Applicant’s actions solely caused the adjournment of the trial, I find the Crown’s submission in asking for the entire delay to be attributed to the Applicant indicative of the bright-line approach that was rejected in Hanan. I find the Crown’s position fails to account for the Crown’s and court’s ongoing responsibility in trying to minimize delay, even when the Crown and court are not responsible for the adjournment.

46Turning first to the reasons I find the Applicant was the sole cause of the adjournment of the first trial. Pursuant to s. 486.3 of the Criminal Code, a court-appointed lawyer is not appointed to represent an accused but is appointed to cross-examine a witness: see R. v. N.H., 2023 ONCA 586 at para. 3; R. v. B.N., 2025 ONCA 534 at para. 13; R. v. McQuarrie, 2024 ONSC 2716 at para. 56; and R. v. Thornton, 2014 ONSC 6688 at paras. 50-51. Despite this limited role, the Applicant directed the court-appointed lawyer to contact the Crown to get the Crown’s resolution position. After having been advised of the position and declined it, the Applicant suggested the lawyer had colluded with the Crown which compromised his right to a fair trial.

47I agree with the trial judge’s finding that the court-appointed lawyer did not act inappropriately. I find the lawyer acted in good faith as a conduit between the Applicant and the Crown. The Applicant cannot benefit, even unintentionally, from the delay his own request for a trial adjournment caused when it was the Applicant who directed the lawyer to engage in conduct on his behalf that was outside the scope of the lawyer’s appointment.

48The trial was not adjourned because of any disclosure or restructuring issues as argued by the Applicant. Regarding the former, it is unclear what, if any, items were outstanding at the time of the first trial. The Applicant’s materials on this application did not include any written requests for disclosure. Further, the Applicant did not seek to justify an adjournment of the trial on the basis of outstanding disclosure. Regarding the latter, it was only after the Applicant requested a new lawyer be appointed and the adjournment was granted that the trial judge assumed the role of case management judge to address any outstanding or “restructuring” issues in advance of a new trial. It is only then, as well, that the Applicant requested that a disclosure motion be set.

49Turning next to the reasons I find apportioning some of the delay in rescheduling the trial to the Crown and court is warranted. In oral submissions, the Crown argued that the principle in Hanan has no application in this case, because, unlike Hanan, where the Crown’s tactical decision caused an adjournment of the trial, the Applicant was the sole cause of the adjournment of the first trial. I do not agree. I find the Crown’s submission advocates for a categorical approach to the apportionment of delay and takes a narrow view of the principle in Hanan.

50In oral submissions I posited a hypothetical scenario to the Crown in which an accused is the cause of a trial adjournment, and the first date offered by the court for a new trial is two, three or even four years away. On the Crown’s approach to apportionment, because the accused caused the adjournment, all ensuing delay would be attributed as defence delay. The Crown agreed, however, that, based on the hypothetical, namely, the considerable gap between the cancelled trial date and the new date offered, it would be unreasonable to attribute the entire ensuing delay to the accused. The Crown further agreed that determining how much the gap must close before the entire delay is attributed as defence delay is not a mathematical formula.

51Because the Applicant was the sole cause of the adjournment of the first trial, I find it is appropriate to apportion a significant portion of the ensuing delay to the Applicant. However, as referenced, I find it is warranted to apportion a portion of the delay in rescheduling the trial to the Crown and court. The Applicant was always available and accepted the first date offered by the court every time his case was adjourned including when the second trial was scheduled. Further, the first date offered by the court after July 28, 2025 (the earliest the second trial could have proceeded while still allowing compliance with the Criminal Rules) was April 28-30 2026, nine months later. This is despite the trial judge, when adjourning the first trial, directing that the second trial be rescheduled “as quickly as possible”. A trial date offered nine months later, which placed the total delay at 29 months, is not indicative of any attempt by the Crown and court to try to minimize delay. The Crown conceded in oral submissions that it did not take any steps to prioritize the rescheduling of the trial.

52In the circumstances, of the 276 days from July 28, 2025 to April 30, 2026, I find it appropriate and reasonable to apportion 207 days as defence delay (75%) and the remaining 69 days as non-defence delay (25%). Subtracting this 207-day period from the net delay of 795 days leaves a net delay of 588 days or 19.3 months: see R. v. Shaikh, 2019 ONCA 895 at footnote 2 for a conversion of actual days to months.

iii. Absence of Exceptional Circumstances

53Even after accounting for the adjournment of the first trial, and the related delay attributed to the Applicant in rescheduling the trial, the net delay remains above the presumptive ceiling. As such, the onus falls on the Crown to rebut the presumption of unreasonableness. Neither in its written materials or in oral submissions, did the Crown argue in the alternative that an above-the-ceiling delay was justified because of the presence of exceptional circumstances. Despite this, I will briefly outline the reasons I find the presumption has not been rebutted.

54The Applicant’s case is not a complex one. It is a relatively straightforward prosecution. One charge and one complainant. The Crown has not suggested there are any novel or complex legal issues. Although the Applicant has filed Charter applications, they are, in the Crown’s view, frivolous and ought to be summarily dismissed.

55Recently, the Court of Appeal in R. v. Singh, 2025 ONCA 843, granted a crown appeal of a s. 11(b) above-the-ceiling stay because the trial judge erred in his assessment of exceptional circumstances in “focusing narrowly on the relative simplicity of the individual charges” and overlooking the complexity of the prosecution. In addition to other relevant factors, Singh was a large and complex project case involving multiple accused and voluminous disclosure. Unlike Singh, the Applicant’s case is neither complex nor large. Neither is it a project prosecution. The Applicant is the lone accused. There is no suggestion that disclosure is voluminous.

56As referenced earlier, the Crown and court did not take any steps to minimize the delay once the presumptive ceiling was breached, including any steps to prioritize the rescheduling of the trial. This is despite the trial judge’s direction to schedule the second trial as quickly as possible. An offered trial date of 9 months away is not timely in the circumstances especially when it means a total delay of 29 months.

57It is unfortunate that this charge cannot be adjudicated on its merits due to unreasonable delay.

IV. CONCLUSION

58The application is allowed. The charge is stayed.