ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HARINDER KHOSA
Before Justice S. Robichaud
Heard on December 29, 2025
Reasons for Judgment released on December 29, 2025
Ismar Horic.......................................................................................... Counsel for the Crown
Preet Gill....................................................... Counsel for the defendant Harinder Khosa
Reasons for Judgment
1The Applicant, Harinder Khosa, is charged with Impaired Operation, contrary to s. 320.14(1) of the Criminal Code; Dangerous Operation, contrary to s. 320.13(1); Flight from a peace officer, contrary to s. 320.17; and Fail or refuse to comply with a demand, contrary to s. 320.15(1).
2Before the commencement of oral submissions on this application, I confirmed with counsel and the accused that all parties are prepared to proceed on January 19, 2026. I confirmed: no further Charter applications are anticipated other than those already filed; the accused, who resides in Alberta, will attend in person if this application is dismissed; defence counsel is retained and ready to proceed; and the Crown confirms that the material witnesses have been subpoenaed or are expected to attend.
3Subject to this motion, the parties jointly indicate that the trial is ready to commence, neither party anticipates seeking any further adjournment.
4The Applicant seeks a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms based on an alleged breach of s. 11(b). The information was sworn on February 21, 2023. The trial is scheduled to commence on January 19, 2026, and conclude on January 21.
5The parties filed transcripts and scheduling materials. The total period is 1063 days, approximately 35 months. The record establishes periods of delay waived by the defence and delay caused by the defence.
6After accounting for institutional delay, deducting defence‑caused delay, waiver as set out below, apportioned delay, the net delay is 307 days (approximately 10.1 months), which well below the 18‑month presumptive ceiling for trials in the Ontario Court of Justice.
7The application is dismissed.
I. Background and Procedural History
8Referencing the materials filed by the Applicant and Respondent, including the transcripts of the proceedings, court documents, trial co-ordinator forms, correspondence, I find the factual history of the matter is as follows:
Date
Total Delay
Event
Feb 21, 2023
0 days 0 months
Bail hearing. Release on undertaking with conditions (no driving; address notification to the officer in charge). Adjourned to set first appearance.
April 5, 2023
43 days (1 month, 15 days).
First appearance post-release. Disclosure available. Request submitted a week prior. Adjourned to allow disclosure processing and receipt.
May 24, 2023
92 days (3 months, 3 days).
Self-represented with Punjabi interpreter; accused advised can’t afford find and plea will affect employment. LAO denied. Court suggests a self-represented judicial pre-trial (SR-JPT). Court scheduled SR-JPT on first available date provided: 2023-08-29. 11(b) not raised.
August 29, 2023
189 days (6 months, 8 days).
Counsel (S. Shaffie) retained; designation and disclosure request sent; no specifics on when that occurred or what efforts were made prior to this date to review disclosure; discretionary bench warrant issued out of caution. Adjourned to permit counsel to review disclosure and hold a Crown pre-trial. 11(b) not raised.
September 27, 2023
218 days (7 months, 6 days).
Adjourned again at request of the defence for Crown pre-trial and disclosure review despite same request on last date. Defence requests five weeks for this purpose. 11(b) not raised by defence. The Court orders that the adjournment is granted but “is for all the case management steps to take place with the months of adjournment all the way up to setting of the trial dates or plea dates that can be done behind the scenes [Emphasis added] 11(b) not raised.
December 13, 2023
295 days (9 months, 22 days).
Crown noted the case was ready to proceed, but no CPT had occurred despite previous court order. No explanation provided by the defence. Crown points out that this is now 10 months out without a CPT. Court again directs a CPT be scheduled and adjourned for an update. Up to this point counsel has not appeared, only agent for counsel. 11(b) not raised by the defence. 11(b) not raised.
February 7, 2024
351 days (11 months, 17 days).
Crown elected summarily on one information; defence advised CPT is set for February 8 with no explanation on why one could not be conducted in the previous two months allotted. Adjourned to await CPT outcome. Again, agent appears for counsel. Defence requests a month adjournment despite CPT taking place the next day. 11(b) not raised.
February 16, 2024
Email from A/CA Paul Renwick confirms that a non‑criminal resolution would not be offered and directs defence to either resolve on the offences charged or set the matter down for trial.
March 6, 2024
379 days (12 months, 14 days)
Agent for counsel reported “extensive pre-trials”; requested resolution denied; complainant input pending. Defence requests further adjournment for “ongoing resolution discussions” and complainant input despite clear denial of desired outcome as stated. 11(b) not raised.
March 27, 2024
400 days (13 months, 6 days)
Agent for counsel appears and advises “Mr. Shaffie is having ongoing discussions with Mr. Hendry from the Crown's office with respect to both of them, possibly resolving these matters.” despite previous admission that desired resolution was denied. defence continues to pursue global resolution. Acknowledges that CPT already conducted with Crown Renwick as well. Crown repeated that they will not agree to non-criminal resolution on this matter per previous denials. Defence requests further three-week adjournment. Court suggest a JPT to be scheduled promptly and prior to the return date. Court points out protocol that anything past six moths, trial dates are to be set. Court asks for 11(b) waiver, but counsel does not have instructions to do so but acknowledges it is a “defence request”.
April 17, 2024
421 days (13 months, 27 days).
Agent for counsel appears and indicated readiness to resolve; plea date requested.
May 1, 2024
435 days (14 months, 10 days).
Counsel Naresh, acting as agent for counsel Shaffie, appears and advises that despite intent to resolve matters, accused now facing new charges and therefore requested to be adjourned for another four weeks for another CPT. Adjourned for short update on bail/disclosure and further Crown pre-trial.
May 15, 2024
449 days (14 months, 24 days
Change of counsel to Mr. Bal. interpreter participation arranged. Adjourned to judge’s court to formally effect change of counsel.
May 22, 2024
456 days (15 months, 1 day)
Mr. Bal confirmed retained by student-at-law appearing on counsel’s behalf who advised “fully retained on all of Mr. Khosa's matter, and so we will be representing him moving forward.”; assigned Crown identified; remand for counsel to review disclosure and engage R1 Crown. Punjabi interpreter present. Adjourned at counsel’s request for a two-week adjournment for disclosure review, and CPT arrangements. Crown advises Mr. Hendry is the assigned Crown on both files.
June 5, 2024
470 days (15 months, 15 days).
Agent for counsel appears and advises that a further R1 discussion needed, client instructions outstanding. Crown entered summary election on impaired information (ending in 2008). Adjourned for ongoing resolution steps and instructions.
July 3, 2024
498 days (16 months, 12 days
Defence requests three weeks to schedule JPTs; court required trial or resolution dates on next date. Adjourned to schedule JPT and obtain dates.
Presiding justice indicates:
“So we're well beyond the timeframe within which trial dates or resolution dates should have been set. That's my concern. … depending on the instructions, that they can be set either to resolve or for trial. But I do need dates on the next occasion.”
August 14, 2024
540 days (17 months, 24 days)
Agent for counsel attends. Court order not followed to set dates. Defence sought three weeks for global resolution discussions. 11(b) waiver. Adjourned for global resolution efforts. Crown advises that JPT was conducted on Aug 2, 2024, and that “Trial estimates were more or less finalized at that time. They just need to be provided.” Crown concedes that “There is some prospect of a global resolution, but there's a file in Toronto that's involved that I understand may be, be a wrinkle. We're content with that, with the matter going over, given that there's going to be a waiver” Defences waives delay.
NOTE (non-transcript event)
JORDAN CEILING SURPASSED
(August 21, 2024)
18 months
- No trial dates scheduled
- Repeated defence requests for “on going resolution discussion”
- Explicit denial of desired resolution 15 months prior.
- Accused facing new charges (Toronto)
- Accused changes counsel.
- New counsel retained three months prior with no movement forward.
- Court orders to set dates not followed.
- Trial estimates ready and trial dates would have been set but-for defence waiver.
September 4, 2024
561 days (18 months, 14 days).
Agent for counsel attends. Global resolution discussions continued with s. 11(b) waiver. Court sought clarity on trajectory. Adjourned for ongoing global resolution and instructions. Court raises 11(b) concerns. Defence replies “So counsel's anticipating to have global discussions on both of the Brampton — the charges out of Brampton and Toronto.” Adjourned on that basis and with waiver with caveat “It's for counsel to obtain a resolution date, which appears likely. And if not, a trial date. Both — either of which can put on, put on the next occasion.”
September 25, 2024
19 months, 4 days
Agent for counsel attends. Defence requested two weeks due to pending disclosure from another jurisdiction; s. 11(b) waived. Adjourned to await disclosure and continue exploring global resolution. Crown raises 11(b) and agrees to “one more adjournment” in consideration of clear waiver. Also advise that counsel can set dates and resolution discussions can continue in the background.
October 9, 2024
596 days (19 months, 18 days)
Agent for counsel attends. Defence advised JPT had been held and unrelated (Toronto) disclosure outstanding; s. 11(b) waived.
November 6, 2024
624 days (20 months, 16 days
Agent for counsel attends. Defence received initial Toronto disclosure; requested two weeks; s. 11(b) waived. Crown emphasized Peel matters must proceed. Adjourned to permit defence request to review and resolution decision.
November 26, 2024
644 days (21 months, 5 days
Agent for counsel attends. Agent for counsel attends. Defence reported receipt of other-jurisdiction disclosure; requested four weeks; s. 11(b) waiver continued. Adjourned for ongoing resolution discussions.
December 18, 2024
666 days (21 months, 27 days
Agent for counsel attends. Crown pre-trial set for the trial matters. Adjourned Crown pre-trial set for the trial matters. Adjourned to set trial dates or resolve after CPT. Crown advises this is a clear defence request with no comment to the contrary.
January 22, 2025
701 days (23 months, 1 day
Agent for counsel attends. Language rights canvassed (English). Given age of the case, peremptory on defence to set trial dates next appearance. Adjourned to February 12, 2025. 11(b) not raised.
February 12, 2025
722 days (23 months, 22 days).
Agent for counsel attends Impaired matter trial set confirmed for January 19–21, 2026 with a Punjabi interpreter; adjourned to September 10, 2025, to put trial dates on the record, and assault matter adjourned to March 5, 2025, to obtain dates. Court asks if there are any pre-trial motions. Advised Court there are no motions. 11(b) not raised. Adjourned to September 10 to confirm trial dates.
September 10, 2025
932 days (30 months, 20 days)
Agent for counsel attends. Trial dates put on the record. Court required either commitment not to raise s. 11(b) if trial concludes on time or scheduling of s. 11(b) motion. Adjourned to confirm the s. 11(b) path. Agent for counsel confirms that “If
trial does finish on time, I — don't anticipate
that's an issue. However, if the trial does not,
then….”
November 6, 2025
989 days (32 months, 16 days)
Agent for counsel attends. Defence confirmed intention to bring s. 11(b) motion and that transcripts had been ordered.1 Adjourned two weeks to set hearing date.
November 20, 2025
1003 days (32 months, 30 days
Agent for counsel attends. Defence advised a scheduling conference on November 25 for s. 11(b). Adjourned to put application dates on the record.
December 29, 2025
11(b) motion argued
January 19, 2026
1063 days
Trial date set to commence
II. Applicable law
9Timely justice is a cornerstone of a fair and democratic society. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees every accused person the right to be tried within a reasonable time. This right protects not only the liberty and security of the accused, but also the integrity of the justice system itself. When trials are delayed, accused persons remain in legal limbo, victims are left without closure, and public confidence in the courts is eroded.
10As the Supreme Court emphasized in R. v. Jordan2, excessive delay has become a systemic issue, often tolerated through outdated practices and institutional inefficiencies.
11The framework established in Jordan, and reaffirmed in R. v. Cody3, requires all participants in the justice system to take proactive steps to prevent delay and ensure that criminal proceedings are conducted fairly, efficiently, and within constitutionally acceptable timelines.
12The Jordan analysis was simplified by the Ontario Court of Appeal in R v. Coulter,4 as follows:
(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
(2) Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66)
(3) Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
(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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
(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 (Jordan, para. 75).
(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 (Jordan, at para. 80).
(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
13In addition to this framework, I am mindful that: i) The “presumptive ceiling” for provincial courts, as is the case here, is 18 months; ii) a stay of proceedings “below the ceiling” are rare and require proof of meaningful defence efforts and unreasonable delay.; iii) in setting the “ceilings”, the Supreme Court factored in tolerance for reasonable institutional delay.5
14To the extent the defence invokes Askov and Morin in their materials to frame calculation or prejudice, those authorities have been superseded by Jordan for the purpose of delay assessment. A stay “below the ceiling” is reserved for the clearest of cases and requires meaningful defence steps and delay markedly exceeding what was reasonably required.
III. Methodology and Calculation Framework
15As noted, the total delay to the commencement of trial in this matter is 1063 days: approximately 35 months. This delay is well above the presumptive ceiling set out in Jordan.
16There are no discrete events.
17The case is not complex.
IV. Defence‑Attributed Delay and Waiver
18The defence submits that 364 days should be deducted as defence‑caused delay, yielding a net of approximately 21 months. I reject this calculation. The interval they identify from March 6 to December 18, 2024, is 287 days, not 364. More broadly, the defence chart in Appendix A contains cumulative figures that do not reconcile with the record. My deductions and the net delay are based on verified intervals and are set out in these reasons.
19Quoting directly from the relevant passage in the Supreme Court’s decision in R. v. Jordan:
61Defence delay has two components. The first is delay waived by the defence. […] Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. […] [I]t must be remembered that it is not the right itself, which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” […]
63The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
64As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. […] 6 [Emphasis added]
20The Supreme Court makes clear that delay “waived by the defence” and delay “caused solely by the conduct of the defence” must be deducted, including where the defence is not ready when the Crown and the court are ready, or where defence actions are illegitimate and not taken to respond to the charges.
a. Delay was a deliberate and calculated tactic employed to delay the trial
21On the totality of the record, I find this is one of the rare matters contemplated in Jordan mentioned in the cited paragraphs above in which defence conduct amounted to a deliberate and calculated tactic to delay the trial.
22In R v Cody, the Court stated defence conduct may be deemed not legitimate if it exhibits marked inefficiency or marked indifference toward delay.7 In R v J.F., the Court underscores the obligation to raise delay concerns in a timely, proactive way so proactive measures can be taken to remedy any delay.8
23Applied here, the persistent pursuit of adjournments to advance “global resolution” long after the Crown’s firm February 16, 2024 position, the sequence of express s. 11(b) waivers through late 2024, the failure to flag s. 11(b) when trial dates were set on January 30, 2025 and put on the record on February 12, 2025, and the late assertion only on November 6, 2025, together demonstrate in my view a deliberate and calculated tactic (or, at minimum, a “marked indifference”) to guide the case to drift beyond the ceiling. 9
24On this record, I go beyond a finding of “marked indifference” and conclude there was an intent to delay as a tactic.
25The conduct was not a passive acceptance of adjournments. The transcripts reflect repeated, deliberate defence requests for additional time, further negotiations, and indulgences from the Court and the Crown, with no evidence of meaningful progress in the background. The defence persisted in pursuing a global resolution that was never realistically attainable and previously denied, which reinforces that the resulting delay was a matter of choice rather than acquiescence.
b. Crown “ready to proceed” on December 13, 2023 – waiting on defence
26The Crown’s trial readiness is first recorded clearly on December 13, 2023, when the Crown stated the impaired matter was ready to proceed to trial, but no Crown pre‑trial had been held. The Court directed that a CPT be scheduled. A CPT did not occur until February 8, 2024.
27The defence writes in their materials:
“This is not a complex case; rather, it is a simple one without any significant trial issues or witnesses, and without voluminous disclosure. There are no discreet [sic] events or exceptional circumstances that justify the delay.”
28I agree; notwithstanding, the transcripts show defence requests for adjournment after adjournment under a generalized claim of ‘ongoing resolution,’ rather than setting trial dates, including March 6, March 27, April 17, May 1, June 5, and July 3, 2024.
29The defence submits that:
“[U]pon being retained, defence has taken all necessary steps to expedite the matter and schedule dates once a global resolution was not obtained for the Applicant.”
30Such a position is untenable on this record. The opposite occurred. I accept the Crown’s submission that:
“Throughout the history of the matter the Crown and the court had been ready to proceed, but the defence was not. The matter was delayed by lengthy periods of inactivity and defence failure to take meaningful steps to progress the matter.”10
31Not only did the defence fail to take “all necessary steps to expedite the matter” as claimed, but it also took steps that delayed it.
32If not for the Court’s order on January 22, 2025, making it peremptory on the defence to set trial dates, I have no confidence a trial date would have been scheduled on January 30, 2025, either.
33At no point in the proceedings did defence take any proactive measures to move the matter forward in an expeditious manner and this is why I have reached the conclusion that delay was the intent.
a. A stay is not available for delay of the defence’s making
34The Supreme Court’s decision in R v Cody confirms that defence‑caused delay includes periods attributable to defence conduct, and those periods must be deducted so the defence does not obtain a benefit from self‑created delay. Here, the application seeks a stay based on the delay generated or tolerated by the defence. The framework does not permit such a result.
35I agree with the Respondent that on this record, the repeated adjournments for “global resolution,” coupled with express waivers, and the failure to flag s. 11(b) when trial was set, are properly treated as defence‑caused delay.11
36The transcripts and the charted history speak for themselves and are at odds with the defence’s attempt to minimize its conduct. I highlight the salient portions below.
37On February 16, 2024, the Crown communicated a firm resolution position. In his email, A/CA Paul Renwick advised defence that a non‑criminal resolution would not be offered and directed counsel either to resolve on the offences charged or set the matter for trial.12
38Rather than set trial dates and continue any resolution discussions in the background, defence maintained that resolution was close and sought further adjournments on that premise.
39From March to August 2024, defence repeatedly sought adjournments for disclosure review, resolution discussions, and pre‑trial scheduling rather than setting trial dates, notwithstanding the Crown’s February 16, 2024, communication that the matter should resolve on the charges or proceed to trial.
40Even accepting that resolution discussions (global or otherwise) were ongoing, they were pursued at the defence’s request and recorded through successive adjournments accompanied by express section 11(b) waivers (Aug 14, Sep 4, Sep 25, Oct 9, Nov 6, Nov 26, 2024; Tabs 19–24).
41Whatever the objective of seeking a global resolution on other outstanding charges in another jurisdiction, those discussions should not have impeded the expeditious progression of these matters if section 11(b) was to be raised at a later date. Resolution efforts can proceed in the background while firm deadlines are maintained, focusing all participants on the scheduled hearing. Properly managed, such parallel efforts may facilitate resolution without the cost of delay.
42Between August 14 and December 18, 2024, defence expressly waived section 11(b) at successive attendances. This runs counter to any pressing 11(b) concerns.
43After December 18, 2024, the matter ought to have been promptly set; the delay to January 30, 2025, is attributable to defence inactivity. When trial was set above the ceiling on January 30, 2025, defence did not raise section 11(b) until November 6, 2025, depriving the Crown and the Court of any meaningful opportunity to mitigate.
44As it became apparent that further adjournments would not be granted on the strength of unparticularized “defence requests,” waivers were required and provided, making clear that any resulting delay was attributable to the defence (see Jan 22, 2025, peremptory order; Tab 26).
45These efforts inevitably proved fruitless considering the Crown’s February 16, 2024, email declining any noncriminal resolution and directing that trial dates be set.13
46On February 12, 2025, when the trial dates were set, the presiding justice asked whether any pre‑trial motions were anticipated. Defence answered “No,” and added that the matter would proceed “as a blended trial with the Charter.” In the circumstances, no discrete pre‑trial applications were identified or scheduled at that time, notably nothing relating to delay and 11(b) of the Charter.
c. The non-attendance of counsel
47It is worth noting that counsel of record, Mr. Rupinjit Singh Bal, did not appear for the accused at any stage. On each appearance, a non‑lawyer agent addressed the court, often on vague or guarded instructions; and on at least one occasion inaccurate instructions.14
48Despite Ms. Gill’s capable submissions at the section 11(b) hearing, she is not counsel of record; Mr. Bal has yet to appear. While I did not let it disrupt the proceedings, as Mr. Khosa was content that Ms. Gill make submissions, at no point did the Court permit anyone other than counsel of record to attend to make submissions on a pre-trial motion. Counsel of record was presumptively expected to attend and that did not happen nor was any explanation provided. I mention this to illustrate the issues raised in this section, and not in anyway to disparage counsel who did attend and made helpful and appreciated submissions.
49This underscores the importance of counsel attendance on contentious matters so that complete and accurate information can be placed on the record, including the status of negotiations and any disclosure issues.15 In oral submissions, the defence relied on disclosure timing to recast adjournments as institutional or inherent. I disagree. The record shows that disclosure was available at an early stage, and no evidentiary foundation was filed to establish late or inadequate disclosure. To the extent disclosure issues in another jurisdiction arose, the resulting adjournments were defence requests pursued for global resolution and accompanied by section 11(b) waivers. The authorities invoked do not assist in the absence of supporting evidence and in light of clear defence‑driven adjournments on this record.
50While counsel may engage agents for administrative appearances, this practice carries the risk that statements advanced in support of a section 11(b) claim lack the necessary detail. Matters best known to counsel of record, including the particulars underlying delay assertions, may not be placed on the record with adequate specificity.
d. Late Assertion and Apportioned Delay
51As the Respondent has pointed out, section 11(b) was first raised—apart from earlier waivers and denials (approximately 32.5 months) after the arrest and 75 days before the scheduled trial. In practical terms, the defence moved from waiving delay, to denying that delay was at issue when asked, to silence, and then to asserting a breach and seeking the most severe remedy only weeks before trial. This timing deprived the Crown and the Court of any meaningful opportunity to mitigate.
52As also pointed out, and despite this urgency of the violation raised by the defence¸ “The matter was adjourned to November 20, 2025, so that the motion dates could be scheduled. However, the Applicant had still not scheduled a motion by that date. The matter was adjourned yet again to November 27, 2025, to put motion dates on record.”16
e. The obligations of defence counsel to raise issues relating to delay
53Defence counsel is expected to raise any section 11(b) concern when trial dates are set. Silence at that stage deprives the Crown and the court of a meaningful opportunity to mitigate delay, including by seeking earlier dates or by prioritizing or stacking the matter where scheduling practice permits.
54Courts have recognized that where trial dates are set above the Jordan ceiling and defence remains silent, a portion of the period from the date set to the anticipated end of trial may be attributed to defence delay.17 This duty of the defence is not optional and creates a positive obligation to raise these issues in a timely manner so mitigative steps are possible.18
55To be timely within the meaning of J.F., the issue must be raised early enough to allow those mitigation steps to be taken. Where the defence remains silent after dates are set beyond the ceiling, courts have frequently attributed a portion of the interval from the setting of dates to the anticipated end of trial, often 50 percent, to defence‑caused delay, provided there is a basis to conclude that mitigation was realistically possible had the issue been raised promptly.
56I find as a fact that defence failed to raise 11(b) concerns in a prompt manner; an, for reasons expanded upon below as it relates to local practices, such a failure significantly contributed to the delay in this case.
f. Apportioned delay when the defence is silent
57In several of the above-cited decisions where defence failed to raise 11(b) concerns, the, courts have applied a 50 percent allocation, sometimes allowing a brief interval for defence to obtain transcripts before the attribution begins. The principle is also consistent with the Supreme Court’s direction in J.F. that delay concerns must be raised in a timely way. Justice P.F. Monahan of this courthouse in Peel Region, attune to the local practices that this case is subsumed under, summarized this development in the case law well in the case of R. v. Lokubalasuriya19:
[A] considerable body of law is developing at the Ontario Court of Justice (“OCJ”) level to the effect that the failure of defence to proactively assert their client’s section 11(b) rights may lead to having some defence delay attributed to the defence. Relying on Jordan, Cody and J.F., a number of OCJ Courts have held that where a defendant sets a trial date above the Jordan ceiling and says nothing about section 11(b) concerns, then some portion of time associated with the delay in raising these issues should be attributed as defence delay. In particular a number of OCJ judges have attributed as defence delay 50% of the time from when the dates are set until the trial date or, in some cases only until the Crown is put on notice that the defence intends to bring a section 11 (b) application: see R. v. Nigro 2023 ONCJ 41 (per Justice West); R. v. Ahmed (unreported per Justice Caponecchia); R. v. A.D. (unreported per Justice Lai); R v. MacDonald (unreported per Justice Daviau); R. v. Kullab 2023 ONCJ 458; and R. v. M.W. 2023 ONCJ 581. Courts have in some cases allowed defence counsel 2 to 4 weeks after the trial dates are set for defence to order transcripts of past court attendances in order to finalize the defence’s position on section 11(b) (see Ahmed and M.W.)
58The Crown submits that where defence remains silent after trial dates are set beyond the Jordan ceiling, courts have frequently attributed 50 percent of the interval from the date set to the anticipated end of trial to defence delay, to reflect the Crown’s lost ability to mitigate.20 The Respondent’s calculation attributes 50 percent of the 356 days from January 30, 2025 to January 19, 2026, namely 177 days, to defence delay.21
59I agree with this submission on apportioned delay; however, I differ on when that attribution should be applied to the Crown. In this case, that window runs from November 6, 2025, to January 19, 2026, a span of 74 days. A 50 percent allocation therefore yields 37 days of defence‑attributed delay in that late‑assertion period.
60Even if a broader, generous attribution were applied as the Crown submits, from January 30, 2025, to January 19, 2026 (354 days), the 50 percent allocation would be 177 days. In either approach, the defence‑attributed deduction is appropriate on this record and falls well below the Jordan ceiling.22
61I reject the defence submission that institutional factors or other court matters prevented timely scheduling.
62The Trial/Preliminary Inquiry Scheduling Form reflects that earlier January dates were offered, and the Crown was available while the defence was not. Local scheduling practices in Peel permit prioritization or stacking when section 11(b) is flagged promptly. Had the defence raised delay at the trial‑setting stage, realistic mitigation existed. On this record, the inability to secure earlier dates was not due to institutional unavailability; it resulted from defence posture and late signaling.
g. Local practices in scheduling dates, stacking, and prioritization in Peel Region
63The Crown’s materials also describe local practices in Peel to prioritize or stack matters when section 11(b) is flagged promptly. This satisfies the requirement articulated in authorities cited by the Crown23 that there be a basis to find the Crown could have taken steps to bring the matter under the ceiling had defence acted in a timely way and that any late‑assertion allocation should be supported by evidence that mitigation of delay was realistically possible had defence raised its s. 11(b) concerns earlier.
64The Respondent’s record accurately addresses local Peel scheduling practices (including stacking and priority scheduling when 11(b) is signalled) and identifies earlier January trial dates that the Crown could accommodate but defence could not, demonstrating concrete mitigation potential.24
65As a local judge familiar with these practices, I am satisfied that significant mitigation could have occurred through prioritizing or stacking the matter had the defence acted diligently and raised delay concerns when they first became apparent.
66The issue should have been raised at the time trial dates were set. If the dates still exceeded the Jordan timeline, the matter could then have been brought before a Local Administrative Judge to seek prioritization. Those steps might have expedited the case, but the defence’s silence made such mitigation impossible.
67While it is insignificant on the total calculation, it must be noted that the Trial/Preliminary Inquiry Scheduling Form shows that earlier January dates were offered, with the Crown available and defence unavailable, and that January 19–21, 2026 were thereafter set when both were available.
h. The obligations of new counsel in taking over a file and how it relates to 11(b) considerations
68It is worthwhile to turn my attention to the issue relating to the transfer of a file from one lawyer to another and how that can contribute to delay if obligations are not fulfilled.
69When counsel is retained partway through a matter, whether from a self‑represented accused or from previous counsel, the obligation to advance the case promptly is heightened.
70It is not acceptable to reset the file and proceed at the same pace as if proceeding from early stages in the criminal file. Counsel must promptly review disclosure, identify and request any outstanding items, connect with the assigned Crown, and acquaint themselves with any existing s. 11(b) considerations.
71A change of counsel does not justify attributing any resulting delay to the Crown or the Court. Generally, there should be no gap in the pace of the proceeding; to the extent a gap arises from a change of counsel, that gap is presumptively attributable to the defence.
72Exceptions may exist. For example, where substantive disclosure was not provided despite reasonable diligence of previous counsel, but such instances are rare and fact‑specific and must be assessed in the context of the transition. Put simply, counsel who assume carriage of a file should do everything reasonably possible to achieve the same state of knowledge and pace as diligent prior counsel. Counsel must “hit the ground running” and not go back to the starter blocks.
73Deliberate efforts to defer the inevitable, into a sword in a section 11(b) application. Not only is this not permitted under Jordan, Cody, J.F., etc., applications brought under this tactic undermine efficient case management by discouraging good‑faith resolution efforts in other matters where counsel properly seek short adjournments with clear waivers. It places the Crown and Court into unnecessary defensive positions when they can no longer rely on representations that delay is not in issue only to be sprung with threats of 24(1) relief on the eve of trial.
V. Jordan-Compliant Trial Scheduling Practice Direction
74In consideration of such applications, it is unsurprising that the Ontario Court of Justice promulgated the Jordan‑Compliant Trial Scheduling Practice Direction. 25 Its purpose is to ensure early trial‑date setting and timely 11(b) signalling so that firm dates are maintained and the right to be tried within a reasonable time is safeguarded. Those protocols were not followed here.
75Part II of the Ontario Court of Justice’s ‘Jordan‑Compliant Trial Scheduling’ Practice Direction applies because the Information was sworn on February 21, 2023.
76The practice direction states that “Part II of this practice direction applies to all criminal cases with an Information sworn date before November 1, 2023.” At the early stage, the accused appeared self‑represented with an interpreter. The practice direction applies, with necessary modifications, to self‑represented accused; the SR‑JPT proposed by the court was appropriate within those protocols.
77The Ontario Court of Justice’s scheduling directives require that trial dates be set using the Trial/Preliminary Inquiry Scheduling Form and a scheduling conference and provide that if a trial is scheduled more than 18 months from the information date, a section 11(b) application will be scheduled unless the defence confirms it will not bring one.
78This case did not comply.
VI. Conclusion
79As a final calculation, I accept the Respondent’s concession that the interval from May 24 to August 29, 2023, reflects unavailability of an earlier self‑represented judicial pre‑trial date. I treat May 24 to June 24, 2023 (31 days) as neutral time pending the first available SR‑JPT, and June 25 to August 29, 2023 (65 days) as institutional scheduling delay. Neither interval is deducted as defence‑caused delay. The SR‑JPT was set on the first available date offered by the Court, and there is no basis to attribute this time to the defence.
80Therefore, only the late‑assertion window beginning November 6, 2025, is attributed, on a principled basis, at 50 percent to the defence. That window is 74 days; the 50 percent allocation is 37 days. Deducting defence‑caused delay and waiver as set out above, and treating May 24 to June 24, 2023, as neutral time and June 25 to August 29, 2023, as institutional scheduling delay, the net delay is 307 days (approximately 10.1 months).
81Even if I am wrong and a 50 percent allocation were applied from the date the trial was set to the start of trial (January 30, 2025, to January 19, 2026: 354 days; 50 percent attribution: 177 days), the net delay would remain well below the presumptive ceiling after deducting remaining defence‑caused delay. To be clear, this is an alternative scenario only; the preceding paragraph reflects my actual calculations, including my findings regarding defence‑caused delay.
82This alternative computation is provided solely to demonstrate that, even on the Crown’s broader attribution from the trial‑setting date, the resulting net delay remains below the presumptive ceiling after deducting defence‑caused delay and waiver.
83The application is dismissed.
Released: December 29, 2025
Justice S. Robichaud
Footnotes
- The ordering dates reflected on the transcripts show that, apart from the transcript ordered in October 2025, all transcripts were ordered on or after November 17, 2025. Defence conceded in oral submissions that the October transcript was ordered for a bail variation, not for a s. 11(b) motion. In these circumstances, the agent’s representation that transcripts had been ordered for the s. 11(b) application was, at its most charitable interpretation, misleading. There is therefore no evidence that the issues surrounding 11(b) were considered until November 17, 2025.
- R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631
- R. v .Cody 2017 SCC 31, [2017] 1 SCR 659
- R. v. Coulter 2016 ONCA 704 at paras. 34-41
- Jordan, para 83
- R. v. Jordan, supra, at paras 61-64
- R. v. Cody, supra, at para 32
- R. v. J.F., supra, at para 35
- R v Jordan, supra at paras 61–66; R v Cody, supra at paras 32–36; R v J.F. supra, at paras 31–34]
- Respondent’s Factum, para 15
- Respondent’s Factum, paras. 12–15, 20–22,
- Email from A/CA Renwick, Feb 16, 2024” (Responding Record, Tab 3)
- Responding Record, Tab 3
- This relates to erroneous representations that 11(b) transcripts were ordered. This is not accurate. Only one transcript was ordered in October and that was for the purpose of a bail variation, not 11(b). See further footnote below.
- At one point in oral submissions, defence counsel Ms. Gill asserted that disclosure of body‑worn camera footage was delayed. The Crown, ACA Horic, responded that this was inaccurate and not supported in the Applicant’s materials. I do not make a definitive finding on this point; however, the Applicant’s materials do not disclose any late or inadequate disclosure. An allegation of this significance ought to have been supported by filed material if it were to be relied upon and should not be raised for the first time in oral submissions without an evidentiary foundation.
- Respondent materials, p.7, para 11
- R. v. Nigro, 2023 ONCJ 41 at paras. 34–38; R. v. Kullab, 2023 ONCJ 458 at paras. 19–32; R. v. Robins, 2024 ONCJ 12 at paras. 17–35; R. v. Lokubalasuriya, 2024 ONCJ 46 supra at paras. 12–23; R. v. Alsouki, 2024 ONCJ 9 at paras. 13–35; R. v. Wang, 2024 ONCJ 177 at paras. 19–29; Also see: R. v. Wright, 2024 ONSC 1893 at paras. 22–34 and R. v. Andrew, 2024 ONSC 607 at para. 18.
- R. v. Vallotton, 2024 ONCA 492 at paras. 29–31; R. v. Mengistu, 2024 ONCA 575 at paras. 38–44.
- R. v. Lokubalasuriya, supra, at para 13
- R. v. Nigro, 2023 ONCJ 41; R. v. Kullab, 2023 ONCJ 458; R. v. Robins, 2024 ONCJ 12; R. v. Lokubalasuriya, 2024 ONCJ 46; R. v. Alsouki, 2024 ONCJ 9; R. v. Wang, 2024 ONCJ 177; and two Superior Court decisions, R. v. Wright, 2024 ONSC 1893 and R. v. Andrew, 2024 ONSC 607.
- Respondent’s Factum, paras. 22–28, 13, 24–26; Tab 2 Trial Scheduling Form; Tab 4 Jan 30, 2025
- See, for example, R. v. Nigro, 2023 ONCJ 41 at paras. 34–38; R. v. Kullab, 2023 ONCJ 458 at paras. 19–32; R. v. Robins, 2024 ONCJ 12 at paras. 17–35; R. v. Lokubalasuriya, 2024 ONCJ 46 at paras. 12–23; R. v. Alsouki, 2024 ONCJ 9 at paras. 13–35; R. v. Wang, 2024 ONCJ 177 at paras. 19–29; R. v. Wright, 2024 ONSC 1893 (per Akhtar J.) at paras. 22–34; R. v. Andrew, 2024 ONSC 607 (per Code J.) at para. 18; R. v. Vallotton, 2024 ONCA 492 at paras. 29–31; R. v. Mengistu, 2024 ONCA 575 at paras. 38–44.
- R. v. Vallotton, 2024 ONCA 492, at paras. 29–31; R. v. Mengistu, 2024 ONCA 575, at paras. 38–44
- Respondent’s Factum, paras. 23, 28–29; Tab 2 Trial Scheduling
- Ontario Court of Justice Practice Direction: Jordan-Compliant Trial Scheduling https://www.ontariocourts.ca/ocj/notices/jordan-compliant-trial-scheduling/