ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVID RICHARD MURRAY
Before Justice S. Murphy
Heard on August 15, 2025
Reasons for Judgment released on September 19, 2025
M. Flagg counsel for the Crown
A. O’Brodovich counsel for the accused, D. Murray
1Mr. Murray was arrested for several counts of fraud over $5,000 in May of 2019. Information No. 19-2152 was sworn on June 4, 2019 and it alleged 20 counts of fraud over $5,000 and three counts of fraud under $5,000.
2Mr. Murray’s trial commenced on March 8, 2021 and it continued for a total of 21 trial days over almost four years before Justice L. Serre. In February of 2025, the Chief Justice of the Ontario Court of Justice determined that Justice Serre was no longer able to continue the trial. At that time, Chief Justice Nicklas determined that the trial would have to restart before a different Judge, as a continuing trial. Continuing trial dates were set to start on June 2, 2025 and to finish on August 15, 2025, for an additional 32 days of trial.
3When the new dates were coordinated and noted on the record, it was also noted that the Defence would be filing an 11(b) application, seeking a stay of proceedings, as they claimed Mr. Murray’s Charter right to be tried within a reasonable time, pursuant to s. 11(b), had been violated. This is the first time that the Court was put on notice that Mr. Murray was claiming that his 11(b) rights were violated or were going to be violated for delay. The Defence seeks a remedy of a stay, pursuant to s. 24(2) of the Charter.
4This ruling deals with that Application.
5By way of the detailed calculations set out below, I find that the time required to conduct Mr. Murray’s trial has exceeded 18 months, by a period of 21 days. Accordingly, I find that Mr. Murray’s right to have a trial conducted within a reasonable time has been breached, and pursuant to s. 24(2) of the Charter of Rights and Freedoms, I intend to enter a stay of proceedings, after trial submissions.
Calculation of Time
6The Defence and Crown agree that the total time that elapsed between the swearing of the first information and completion of the evidence at trial was 2,264 days or 74.43 months. There is no dispute that this total delay would be over the Jordan ceiling of 18 months, if no adjustments were made.
7Both counsel have submitted that no deduction should be made due to a claim of complexity of the case, despite the fact that the evidence at trial ultimately took 29 days to complete.
8In addition, for this decision, I am acting as though the trial completed on August 15, 2025. However, that is the date that the evidence was completed, and the Charter Application submissions were given. We have adjourned the trial to October 9, 2025, for submissions on the trial. With the consent of the Defence, I have been asked to rule on the 11(b) issue prior to counsel arguing the merits of the Crown’s case.
9Not surprisingly, the area of dispute between Crown and Defence is what periods of time constitute Defence delay or Defence-caused delay, what periods of time are properly characterized as Discrete Events and what periods of time are Institutional delay.
Position of the Parties
10The Defence acknowledges that there is Defence delay or Defence caused delay of 385 days. Most of the periods of time that the Defence admits delay, the Crown also claims is Defence delay. However, some of the time periods are characterized by the Crown as Discrete Events. I will deal with this issue below.
11The Crown submits that the total Defence caused delay should be calculated as 597 days, with an additional 64 days that the Crown says is either Defence delay or Discrete Event between March 5 and June 1, 2025.
12If I give effect to the Crown’s calculation for days in dispute, the Defence would be responsible for an additional 276 days than what the Defence says. When combined with what the Crown claims are deductions for Discrete Events, the Crown submits that the total remaining delay is 14.89 months, which is under the 18 month ceiling set by the Supreme Court in R. v. Jordan, 2016 SCC 27.
13If I give effect to the calculation of the Defence, the total remaining delay is 59.4 months, which is clearly in excess of the 18 month ceiling.
Discrete Events
14The Defence has suggested that there was no evidence to support a claim that the matter was delayed due to Discrete Events.
15I have reviewed the records submitted, including the Affidavit sworn by Amanda Lalljee, sworn on July 3, 2025 and various emails attached to that Affidavit. While it is true that the Defence did not have the Affidavit of Ms. Lalljee prior to drafting his argument and, therefore, may not have had all of the email exchanges which were sent in an effort to schedule dates, there was ample evidence available to him regarding Discrete Events in the form of the transcripts of the proceedings.
16The first Discrete Event is attributable to the COVID-19 protocols, the direction by the Chief Justice of Ontario regarding suspension of setting trial dates for out of custody matters between March 2020 and October 2020, the echo from that event, and the resurgence and further protocol adjourning scheduled trial dates for out of custody matters in May of 2021. Mr. Murray’s matter was directly affected by these Discrete Events. The matter essentially went into suspension before a trial date could be set, it was then scheduled for trial, part of which had to be vacated and rescheduled in May of 2021, all directly as a result of the protocols.
17The second Discrete Event is the requirement of Defence counsel, Mr. Fabris, to have emergency orthopedic surgery in the summer of 2021. Mr. Fabris was notified of the surgery after the trial was scheduled to take place, and it appears that Mr. Fabris was unaware as to when the surgery would be scheduled when he set the trial dates, based on the transcripts. This event prompted an adjournment of the trial dates scheduled in the summer of 2021.
18The third Discrete Event is that the original trial judge, Justice L. Serre, was unavailable to conduct the trial on at least three occasions, which prompted adjournments. Although there is no reason given for Justice Serre’s absence, it is not appropriate for the parties to probe or to be given reasons for her absence. She was not available to conduct the trial, and her unavailability prompted adjournments. The claim by the Defence that the Crown should have made inquiries is without merit. Ultimately, a decision was rendered by the Chief Justice of the Ontario Court of Justice that Justice Serre could not continue the trial. She directed that the trial had to restart.
19All of these Discrete Events are tied directly to the time that expired between the date of charge and the conclusion of the trial. Each, either separately, or in combination, caused delay which could not have been foreseen or ameliorated.
20I find that there is ample evidence to support these several Discrete Events, namely the COVID-19 protocols, which delayed setting any trial dates between March of 2020 and October of 2020 and which also interrupted the trial in May of 2021, the emergency surgery of the Defence counsel of record in the summer of 2021 and the unanticipated leaves of the trial judge, Justice L. Serre, and ultimate finding by the Chief Justice of Ontario that the trial must restart.
21Each of those events were unanticipated and unforeseen when either attempting to set trial dates or having set trial dates in the continuation of trial. There was nothing the Crown could do to ameliorate those events. In fact, there is ample evidence, as born out in the transcripts and the emails, that the Crown was urging the earliest possible dates to be set, as there was a significant concern about the passage of time. I will deal with each period and its corresponding Discrete Event or events below.
Delay in Filing the Application
22The Crown submits that the Defence delayed in filing the Application and, accordingly, did not permit the Court or the Crown to ameliorate the delay. Accordingly, the Crown submits that any remaining delay should be considered Defence delay. The Crown cites R. v. J.F., 2022 SCC 17, as authority:
33Defence conduct is considered under the Jordan framework, since the delay attributable to the defence is subtracted from the gross total delay (para. 60). Defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely or directly by the defence (Jordan, at paras. 61 and 63; Cody, at para. 26). Inaction may amount to illegitimate conduct on the part of the defence, because “[i]llegitimacy may extend to omissions as well as acts” (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively:
Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [para. 33]
34An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.
35It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 1991 CanLII 7073 (ON CA), 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as “encourag[ing] pre‑trial s. 11(b) applications” (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows “the parties to know ‘in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay’” (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)).
36In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.
23A review of the timeline below reveals that although the Defence did not raise issues regarding filing an 11(b) Application with the Court until February of 2025, the Crown was alive to the issue of delay, and he repeatedly made efforts to seek additional and earlier dates. He had been put on notice by the Defence as early as September 28, 2023 that the Defence intended to file an 11(b) Application. Shortly after, Defence counsel was removed and another Defence lawyer was retained. Further, there were very clearly Discrete Events related to COVID-19 and the associated directives, the medical condition of counsel and the unexpected and repeated unavailability of the Judge which certainly affected the calculation of delay. In addition, there were multiple changes of counsel for Mr. Murray. Calculating the delay in this matter was complicated and not straightforward.
24In addition, it was not simply Discrete Events which caused delay in relation to this matter. There was a significant underestimation of the amount of time required to complete this trial.
25Despite the original estimate of four weeks in January of 2020 at a self-represented judicial pretrial, a second pretrial with counsel resulted in a trial estimate of 3 weeks, or 15 days. The trial coordinator offered 12 days for trial, and asked if the trial would be completed within that time. The Crown said that they would need the entire 15 days. After two days of trial, it became apparent that the original estimate of 15 days was going to be wholly inadequate, and both Crown and Defence repeatedly sought additional days.
26Ultimately, the Crown’s case took 20 days to complete before Justice Serre, and the Defence case started. Mr. Murray testified in-chief over three days before Justice Serre could not continue. At this point, a new trial had to be coordinated, and it was scheduled for 32 days.
27The length of the trial was required despite many critical admissions by the Defence, which were fundamental to the case. The contracts and the parties to the contracts, the work that was done or not done, the banking records and the incorporation documents all were admitted into evidence by Mr. Murray as a self-represented person in January of 2020. Those admissions were relied on by the Crown throughout the entire proceeding.
28There are periods of time noted below that I have found should properly be split between the Crown and the Defence for the initial failure to properly estimate the amount of time required for the trial to complete.
29It cannot be laid entirely at the feet of one party or the other, and it cannot be completely explained by the phenomenon of Zoom trials taking longer. Only part of this trial was conducted by Zoom, and there were certainly delays caused by that, but the majority of delay would have occurred regardless of whether or not the trial was conducted virtually.
30The amount of time set aside was clearly inadequate, given that the Crown’s evidence consisted of 45 complainant witnesses, two witnesses from the City of Sudbury, one witness from a window manufacturer and the Investigating Officer. That totalled 49 witnesses. As well, the Crown filed a Similar Fact Application which had to be argued. All of this was known to the Crown and Defence when the trial estimate was determined and dates were set.
31In addition, Mr. Murray made it clear from the start that he intended to call a defence. In fact, he was the only Defence witness. His examination in-chief took three days in the first trial before the trial was interrupted by Justice Serre’s inability to continue. In the second continued trial, his chief took 6 and-a-half days. He was then cross‑examined for 7 and-a-half days.
32It should also be noted that there was a technical glitch in the middle of the reconvened trial, where it became apparent that some of the evidence of one witness and all of the evidence of another was completely lost, due to a problem with the sound recording in the courtroom. We were alerted to that problem, as all participants were routinely ordering transcripts of the proceedings. The transcriptionist noticed that there appeared to be missing evidence, and notified the Crown. That necessitated recalling two witnesses, which used an additional half day, which otherwise would not have been necessary. I note that this was with the consent of the Defence. As well, we were notified of a problem with the sound equipment on a different day, in which about 4 minutes of the evidence of another witness was garbled and could not be understood. When alerted, the Defence chose to simply continue, rather than seek another remedy. He had satisfied himself that he could continue. I am grateful to Crown counsel and to Defence counsel for the manner in which these issues were dealt. These issues could have derailed this trial, at least temporarily. Instead, they were dealt with efficiently and expeditiously, and we were able to move on.
33Also, when the trial was restarted, Mr. Murray had the option to simply pick up where his trial left off, given that there were transcripts available of all of the proceedings before Justice Serre, which could be reviewed and relied upon by the replacement Judge. He chose to start all over again. While Mr. Murray had the right to do that, his choice had a significant impact upon the length of the trial.
34Accordingly, it was a combination of factors that were ongoing and evolving, which affected Mr. Murray’s right to a trial within a reasonable time. It is difficult to point to a particular point in time when the Defence knew that an Application should be filed. It cannot be said in the context of this particular case that the Defence simply sat and waited for the delay to accrue to the point where the Crown and the Court would be unable to ameliorate. Therefore, I decline to attribute any time periods as Defence delay, or Defence caused delay due to the Crown’s claim of late filing of his 11(b) Application.
Calculating the Attribution of Time
35There are many ways of assessing the evidence. In these circumstances, I will examine each period of time in a timeline, evaluate which periods of time are Defence delay or Defence-caused delay, which are Discrete Events, and which are institutional delay. I do so in these exceptional circumstances because of the length of time that transpired between the laying of the first information and the date of the last court attendance. That period of time is five years and 2 and-a-half months. In order to be certain that I am not missing any periods of time, I will deal with them in a continual timeline. I will then examine the entire timeframe and apply the Jordan framework, by deducting Defence caused delay from the total delay to determine the net delay. Next I will deduct the total time attributable to Discrete Events which results in determining the remaining delay.
June 4, 2019 to September 24, 2019 – 112 days
36The information was laid on June 4, 2019. The Crown and Defence both agree that the period between June 4 and September 24, 2019 is neither defence delay nor a Discrete Event. I agree. It is properly characterized as an intake period. Accordingly, it is institutional delay of 112 days.
September 24, 2019 to March 18, 2020 – 176 days
37The Crown claims that the entire period between September 25, 2019 to March 18, 2020 is either Defence delay or Defence caused delay, due to Mr. Murray’s failure to retain counsel. The Defence claims that none of the period is attributable to the Defence, given that Mr. Murray had made ongoing efforts to obtain a Legal Aid Certificate, the difficulties caused by conflicts due to the 45 complainants with local counsel, and his ultimate retainer of counsel from Elliott Lake.
38I have reviewed the transcripts of that period of time, and the copies of the informations. What is revealed is that Mr. Murray was initially charged with 20 counts of fraud, in May of 2019, and the information was laid on June 4, 2019. On his first appearance in court on July 3, 2019, he had already obtained disclosure and had already started his application for Legal Aid. On his subsequent attendances in court, Mr. Murray indicated that he wanted counsel and was pursuing that. He also advised the Court of his efforts to satisfy Legal Aid’s requirements.
39On his second attendance, he had arranged for an agent, Mr. Fournier, to assist him. Mr. Fournier was retained on unrelated matters, and anticipated that he would be retained in relation to the fraud allegations. Mr. Murray was told to “step on the gas” regarding his application for Legal Aid, to retain Mr. Fournier. On the next court attendance, Mr. Murray through Mr. Fournier advised the Court that he was having trouble obtaining financial information to satisfy Legal Aid.
40The next attendance in court for Mr. Murray was August 28, 2019, at which time, he attended and advised the Court through the agent who assisted him, that Legal Aid had responded with forms that had to be completed. He had not yet received the forms, but he expected that he would get them soon. He asked for a further adjournment to complete the forms. By the next attendance, on September 25, 2019, Mr. Murray had responded to Legal Aid, but indicated that Legal Aid was backlogged and had not yet reviewed his material. He sought a further adjournment and the matter was adjourned to October 16, 2019.
41On October 16, 2019, agent for Mr. Fournier indicated that Mr. Fournier was retained on this matter, and that a pre-trial had been conducted.
42On November 13, 2019, agent for Mr. Fournier confirmed that Mr. Murray had been approved for Legal Aid, but that he needed some time to retain counsel, as there were new charges coming, first returnable on December 11, 2019.
43On December 11, 2019, Mr. Murray advised that due to the charges, he was having difficulty finding counsel who was not in conflict. The matters were set for a self‑represented judicial pretrial on January 7, 2020.
44As of January 7, 2020, Mr. Murray had only had one prior appearance in relation to the second information. There was yet a third information before the Court for which this was the first return and he had not yet received disclosure on the second information. He was taking active steps to address the concerns from Legal Aid. He had a Certificate from Legal Aid, but he had problems finding Counsel who would take the Certificate. He tried local counsel without success. When he tried out of town counsel, they required travel expenses to be covered. Legal Aid had denied that request, but that denial was under appeal. He had attended all court appearances, and he advised the Court either through an agent appearing or himself, of his ongoing efforts to retain counsel. In fact, at one point, agent for Mr. Fournier indicated that Mr. Fournier was retained.
45To say that Mr. Murray was doing nothing to advance his case would in no sense be accurate. In fact, Mr. Murray had been charged with another set of charges in December of 2019, and had not been able to deal with them. Further, the Crown at the pretrial indicated that he had a conversation with the Investigating Officer, and had already determined that he was intending to consolidate the entirety of both original informations into one count of fraud over. However, there had already been sworn an information that consolidated all of the charges into one information, with all but one count (count 16) naming individual complainants. Later in the pretrial, the Crown indicated that he was going to withdraw the two original informations and proceed on the consolidated information.
46In light of these circumstances, it is not appropriate to attribute this part of the period to Defence delay. It is apparent that the Crown’s case was evolving given the second information with additional counts, the third consolidated information, and the Crown’s submissions at the pretrial.
47As well, Mr. Murray did not have disclosure for the second set of charges. He was pursuing Legal Aid, and had in fact been granted a Certificate. What was in issue was who was going to be counsel. Mr. Fournier had attended on his behalf or had sent agents on his behalf, until December of 2019. An inference can be drawn that it was the laying of the second information, which caused Mr. Fournier to be in conflict, not anything that Mr. Murray did.
48The judicial pretrial judge observed that the trial was likely to take 4 weeks time to complete. The matter was adjourned to January 21, 2020, for Mr. Murray to confirm that his Legal Aid matter had been straightened out, and that he had counsel. If counsel was arranged by that date, then a subsequent judicial pretrial would be arranged.
49On January 21, 2020, Mr. Murray told the Court that he disclosed to Legal Aid additional income information, which then prompted Legal Aid to cancel his Certificate. He had launched an appeal of that decision. The matter was then set to Feb 6, 2020 for a continuing self-represented pretrial continuation for half-a-day. Although Mr. Murray was making efforts to retain counsel through Legal Aid, his efforts were not successful. The period between January 7, 2020 and February 6, 2020 is Defence delay. Although Mr. Murray was making efforts, his efforts appear to have not been fruitful. His situation essentially remained unchanged. It is understandable that he was pursuing Legal Aid, and had in fact obtained a Certificate to assist him, but he had an obligation to consider his ability to retain counsel without the benefit of a Certificate.
50On February 6, 2020, Mr. Murray attended and advised that his Legal Aid was still under appeal. The Court conducted a fulsome pretrial regarding the matter, but Mr. Murray was not able to elect his mode of trial. The trial estimate was three to four weeks for the Crown’s case. The estimate was the same, if the matter was to be scheduled for a Preliminary Inquiry. Mr. Murray indicted that he intended to call between 10 and 30 witnesses, so that also had to factor into the trial estimate.
51Mr. Murray was given time to consider his options regarding mode of trial. The elections available to him were explained in detail. The matter was adjourned to March 10, 2020 in order for Mr. Murray to elect, and to set either a Preliminary Inquiry date or a trial date.
52The Court observed that the matter was being adjourned for a month, there was some complexity to the charges, there was an anticipated witness list of 50 witnesses for the Crown and Mr. Murray did not yet have counsel. An 11(b) was discussed. In fact, Mr. Murray asked what would happen if he waived his 11(b) rights, but he was never asked whether or not he intended to waive those rights as a self-represented person. In fact, the Court specifically said that Mr. Murray would need to consider the matter before the question was asked of him. The Crown expressed some concern about the passage of time, and wanted to schedule trial dates or Preliminary Inquiry dates on March 10, 2020. The Court observed that if counsel were retained on March 10, 2020 he or she might request an adjournment to be properly prepared to advise Mr. Murray on that issue.
53The matter was adjourned for a month, the only purpose for which was to ascertain whether or not Mr. Murray had retained counsel. This is Defence delay even in light of the substantive step taken by way of the pretrial. Until Mr. Murray elected his mode of trial, the matter was essentially at a stand-still, and there could be no forward progress.
54On March 10, 2020, Mr. Murray advised that the Legal Aid issues had not been resolved, but he had privately retained Mr. Fabris from Elliott Lake. Mr. Fabris was not available to attend court, but that he was seeking an adjournment regarding elections and setting dates, in order to properly review the disclosure.
55The next adjournment was to March 27 or March 25, 2020, which was impacted by the protocols associated with the COVID-19 Pandemic. However, it became clear in later attendances that Mr. Murray had not yet fully retained Mr. Fabris. The matter was brought forward to March 18, 2020.
56At each appearance after September, the Crown expressed concern about the passage of time. The Court and the Crown made efforts to move the matter along. However, the laying of the second and the third informations substantively affected Mr. Murray and changed his jeopardy. At no point did Mr. Murray expressly waive delay.
57However, it was only after Mr. Murray attended the self-represented pretrial, and all three informations were before the Court for at least the second time that the delay falls upon Mr. Murray. By that point, he had been attempting to persuade Legal Aid to assist him for about 7 months. He had successfully obtained a Certificate, but then had trouble finding a lawyer to take the Certificate. Then the Certificate was cancelled. I have not considered the first seven months to be delay caused by the Defence, partly because of the reasonableness of his pursuit of Legal Aid. It is only after the pretrial, when it was made clear to Mr. Murray that the matter could not be delayed any further, that I begin counting Defence caused delay. The Crown did attempt to move the matter forward, and so did the Court. It was Mr. Murray’s insistence that he be given more time to retain a lawyer that was the sole cause of the delay after the pretrial.
58Accordingly, the total Defence caused delay between September 24, 2019 to March 18, 2020 is limited to between January 7, 2020 and March 18, 2020 or 71 days.
59The balance of the time is institutional time between September 25, 2019 and January 7, 2020 – 105 days
March 18, 2020 to October 28, 2020 – 224 days
60The matter was brought forward to March 18, 2020, in accordance with the COVID‑19 protocols. The time after this date is a Discrete Event directly related to the COVID-19 interruption in the court process. It was completely unforeseen, and there was nothing that any participant in the process could do to ameliorate that interruption. In fact, it was a unique event in court history.
61The Defence characterized the first period between March 18, 2020 to May 4, 2020 as Defence delay due to an illness by counsel for Mr. Murray. The Crown characterized the same period as a Discrete Event. In my view, it is properly characterized as a Discrete Event, regardless of whether or not it was caused by an illness of counsel or the COVID‑19 pandemic. Either way, it was unforeseen and the Crown could not have ameliorated that delay.
62The Defence agreed that the period of time between August 5, 2020 and October 14, 2020 as “Covid Delay” meaning a Discrete Event, so I will not examine that period any further other than to observe that, in examining the Defence Chart attached to their materials, there appears to be some confusion or perhaps a typographical error. The Defence claims that the period between May 4, 2020 and October 14, 2020 is Defence delay of 70 days. The next entry claims that the period between August 5, 2020 and October 20, 2020 is “Covid delay”. These two date ranges are duplicated. May 4 to August 5, 2020 is 56 days. August 5, 2020 to October 14, 2020 is 70 days. Defence accounted for two periods of 70 days each. The first time period is clearly in error.
63In light of the unforeseen event of the COVID-19 pandemic, and the corresponding court shutdown, and restart under restrictions, I find that the entire period between March 18, 2020 to October 28, 2020 is a Discrete Event of 224 days.
64In the intervening time, based on the emails, which were attached to the Crown material, there was a subsequent JPT held, in which it appears that both counsel and Justice Buttazoni agreed that the trial could be conducted in three weeks. Defence counsel advised that he was not available in the month of April of 2021. The Trial Coordinator offered 12 days, and asked if the matter could be finished in 12 days. The Crown indicated that 12 days would not be sufficient and asked for an additional three days.
October 28, 2020 to March 8, 2021 – 131 days
65The next period of time is time that is allotted within the Jordan framework is a period of institutional delay, or time that is not deducted. It is a period of 131 days.
66The Crown claims that the period between October 28, 2020 and March 1, 2021 is a Discrete Event. It is followed by a period of 7 days, after the confirmation hearing held on March 1, 2021. The Defence claims that this period is “Court delay” or “Crown delay”.
67There does not appear to be a reason for which the Crown claims that this is a Discrete Event. I infer that the claim arises from the court coming out of the original COVID-19 restrictions, and the corresponding shut-down and the suspension of scheduling of trials until October of 2020. However, on October 28, 2020 trial dates were confirmed for March 8, 9, 10, 11, 22, 23, 24, 25, 26, 29 and 30, April 1, May 3, 4 and 5, 2021, for a total of 15 days. The trial dates were set outside the Jordan deadlines, given that in normal times, the trial would have had to be completed within 18 months of June of 2019, or by the end of November of 2020. Delay was not canvassed during this court attendance, and these appear to be the first dates available. This is a period of about four months, and it is a normal amount of time that would be required between date setting and the first day of trial. It is not defence delay, and it is not a Discrete Event. It is part of the Jordan framework. Defence was offered April 12 to 16, but was not available, which will be addressed in the next section.
March 8, 2021 to April 28, 2021 – 51 days
68On March 8, 2021 the trial started and continued through to April 1, 2021 for 12 days of trial. What must be noted is that when the trial dates were being set, the Defence was not available for the entire month of April of 2021. Trial Coordination offered April 12 through April 18, 2021 as available dates, for which the Crown was available. Because of Defence unavailability, the anticipated completion of the trial was scheduled into May of 2021. Therefore, 5 days is attributable to Defence caused delay and 46 days is inherent time required for trial.
69However, what must also be considered is the underestimate of the time needed for trial. For some reason, despite the Judge observing that four weeks was required during the first pretrial, only 15 days were scheduled. There is an inference that there is a combination of responsibility for this miscalculation, between Defence, the Crown and the Court, given that the change in estimate to three weeks seems to have come after a second judicial pretrial in which Defence counsel participated. I will deal with this issue below.
70The trial commenced on March 8, 2021 for the scheduled dates. March 11, 2021 was adjourned after a half-day, due to the Defence counsel attending a medical appointment.
71On March 10, 2021, the Crown reached out to Trial Coordination, to advise that the trial would not be completed within the allotted time, and he requested to secure four more days to be added to the trial schedule. He noted that one reason for additional time required was that conducting a trial remotely caused the trial to proceed more slowly than originally anticipated. This phenomenon has become well known, and it is a legitimate reason for a trial to take longer than originally anticipated. When the trial date was originally scheduled, it was not anticipated that it would continue remotely, and this was unforeseen. There is no consequence to this part of the underestimation. It will be considered to be inherent time for trial.
72The Trial Coordinator suggested May 24, 25, 26, 27 and 28, 2021. The Crown advised that he was not available. The Defence does not appear to have responded. On March 23, 2021, the Crown sought more dates from Trial Coordination. The Trial Coordinator offered May 17, 2021 but neither Crown nor Defence was available. The Trial Coordinator then offered June 8, 9 and 11, 2021. Defence was not available for any of those dates. On March 26, 2021, the Trial Coordinator then confirmed that June 22 and 24, July 20, August 24 and September 1, 2021 would be continuation dates. Despite the agreement that August 24, 2021 was a date to be confirmed, and an Order on the record that August 24, 2021 was to be endorsed, it was not done. The other dates were endorsed. This appears to be a clerical error.
April 28, 2021 to September 1, 2021 – 126 days Discrete Event
73The Crown claims this entire period is as a result of a combination of Discrete Events due to the COVID-19 Directive and the need for Defence counsel to undergo surgery. The Defence claims that this entire period, except for 19 days which he claims is Defence delay, due to challenges in scheduling continuation dates.
74For the reasons noted below, I find that this entire period is due to Discrete Events.
75On April 21, 2021, a Directive was released from the Office of the Chief Justice of Ontario, that in an effort to curb a resurgence in COVID-19, all trials scheduled between April 26 and May 7, 2021 for accused who were out of custody were to be adjourned, subject to an Order by the trial judge to continue. Mr. Murray’s trial continuation fell squarely in this category. The trial judge did not order this trial to continue, and the May dates were vacated on April 28, 2021, when the matter was brought forward. The matter was adjourned to May 12, 2021 to fix additional trial dates, to make up the three vacated May trial dates.
76On May 12, 2021, the matter was adjourned to June 9, 2021 to permit finalizing the setting of replacement dates as well as continuation dates.
77On June 9, 2021, Mr. Fabris, counsel for Mr. Murray, advised the Court that he was not able to continue the trial starting on July 20, 2021. The matter was adjourned to June 11, 2021 for a Motion to adjourn the trial dates. The June and July dates were vacated, and the matter was adjourned to June 16, 2021. The adjournment was as a result of Defence counsel’s need for surgery. For some reason, August 24, 2021 was not endorsed on the information as a trial date, and it was not vacated. It also appears that August 24, 2021 did not take place as part of the trial.
78The matter was adjourned one week from June 16, 2021 to June 23, 2021 to finalize the continuation dates. On June 23, 2021, continuation dates were arranged for October 12, 13 and 14, 2021, but could not be confirmed. The matter was adjourned to July 7, 2021 to confirm the dates. On July 7, 2021 trial continuation dates of September 1 and 20, October 12, and 14, 22 and November 1, 2021 were confirmed. It was noted that Defence was offered October 13, 2021, but Mr. Fabris was not available.
79The next date that the matter was addressed in court was on September 1, 2021 for trial continuation. Accordingly, regarding the time between April 28 and September 1, 2021, five days were for trial, one day is Defence caused delay, and the period between is a Discrete Event. It was first affected by the COVID-19 Directives, which prompted the adjournment of the matter in May, and then the surgery of Mr. Fabris which prompted the adjournment of the June and July trial dates. Further, the August 24, 2021 date was never noted on the record as a continuation date. Five days for trial – and the period of time from the original anticipated completion time for trial (15 days of trial completed on October 12, 2022). Accordingly, the period between October 12 and November 4, 2022 is split between the Crown and Defence. Accordingly, an additional 23 days for a total of 24 days, is Defence caused delay.
September 1, 2021 to November 4, 2021 – 63 days
80On September 1, 2021 the trial recommenced and day 13 was completed. It continued for all scheduled dates, until November 4, 2021. Because Mr. Fabris was not available on October 13, 2021 and the Court and Crown were available, one day will be noted as Defence caused delay. In the intervening time, additional dates were scheduled for November 3 and 4, 2021.
81The remaining 62 days are part of the Jordan framework.
November 4, 2021 to May 17, 2022 – 194 days
82On November 4, 2021, the presiding Justice was not available to continue. It was noted on the record that counsel was seeking an additional five days for trial, so six days had to be coordinated. The matter was adjourned to November 24, 2021 to coordinate the additional dates. It was noted that the absence of the Judge was unforeseen and unanticipated. It was not noted for how long the Judge was not going to be available.
83The Defence alleges that since there was no information provided regarding the unavailability of the Judge to continue, there was an obligation on the Crown to ameliorate this delay and, therefore, the delay is “Crown delay”. The Crown correctly observes that there is no obligation on the Crown to pry into the reasons for which a judge is “unavailable”, and the delay caused by the unavailability of the judge is properly considered as a Discrete Event. Regardless of the underlying reason, the judge was not available to conduct the trial. Her inability to continue the trial on November 4, 2021 was unforeseen, and it caused the adjournment of the trial to May 17, 2022.
84Emails show Trial Coordination offered May 17, 19, 30 and 31, June 2 and 9, 2022 as possible continuation dates. Those dates were accepted and all but May 31, 2022 was noted on the record on November 24, 2021. There is no explanation as to why May 31, 2022 was not noted. November 4, 2021 to May 16, 2022 is 194 days. This period is a Discrete Event, being the judge was not available to continue the trial in the adjusted trial time. It was noted that six more days were required being one day of the adjusted trial time, and an estimated five additional days required to complete the trial.
May 17, 2022 to November 23, 2022 – 190 days
85The Defence acknowledges that the delay between May 17, 2022 to November 23, 2022 is Defence delay due to a request to adjourn the trial on May 17, 2022 to accommodate a change of counsel. New counsel attempted to resolve the matter, but ultimately sought new trial dates, which were scheduled on November 23, 2022.
86The Crown agrees that the period between May 17, 2022 and November 22, 2022 is Defence delay.
87I have examined that period of time, and I agree that this period of 190 days is Defence caused delay.
November 23, 2022 to April 28, 2023 – 156 days
88The next period of time, the Defence claims is “court delay”. The Crown says the entire period is a “Discrete Event”.
89The matter was adjourned to November 23, 2022 to set continuation dates for the trial, after a change in counsel to Mr. Orazietti. There was a pending request to be removed as counsel by Mr. Orazietti, which was abandoned. On November 23, 2022 the matter was set to May 1, 2, 4 and 5, 2023 for continuation. A Confirmation Hearing was set for March 7, 2023, at which time the continuation dates were confirmed. Ultimately, the matter was brought forward on April 27, 2023.
90It is important to note that earlier dates for trial in May and June of 2022 had already been vacated due to a Defence request. But for that adjournment, Mr. Murray’s trial may have been completed. Then Defence spent the next 156 days getting up to speed. Trial completion dates were scheduled. Defence counsel had advised that he was not fully retained, which the evidence supports caused the delay in scheduling trial continuation dates. Accordingly, I find that the period of time between November 23, 2022 and April 27, 2023 or 156 days is Defence caused delay. There is nothing in evidence to support that any of this period is due to a Discrete Event.
April 28, 2023 to December 12, 2023 – 228 days
91On April 28, 2023, the matter was brought forward and the anticipated trial continuation dates were vacated, as the presiding Judge was unavailable.
92The Crown submits that between April 28, 2023 and June 1, 2023 is a Discrete Event due to the unavailability of the trial Judge. He argues that the balance of the time is due to Defence caused delay. The Defence says that the entire period is “court delay”.
93After April 28, 2023 the matter was adjourned several times, in part to determine if the Judge would be available to continue, and in part to attempt to resolve the matter. Another judicial pretrial was scheduled for October 3, 2023, and the matter was next returnable in court on October 4, 2023. On October 4, 2023, the matter was adjourned to October 26, 2023. On October 26, 2023, it was clear that the relationship between Mr. Murray and his counsel had broken down, and Mr. Orazietti was removed. The matter was then adjourned for a continuation of the trial on December 12, 13, 14 and 15, 2023.
94Between April 28, 2023 and December 12, 2023, 228 days is a Discrete Event. It was caused entirely by the unavailability of the trial judge to sit. A review of the email exchanges between Crown, Defence and Trial Coordination shows that on April 28, 2023 the Trial Coordinator asked for counsel’s availability in December of 2023 to continue the trial. I infer from this that the trial Judge was not going to be available to conduct this continuation until December in any event.
December 12, 2023 to June 20, 2024 – 191 days
95Defence acknowledges that the period of time between December 12, 2023 and February 7, 2024 was defence delay. The remainder of the time is claimed as “Crown delay” or “Court delay”. The Crown claims that the period between December 12, 2023 and February 14, 2024 is Defence delay. The Crown claims that the remainder of the time is a Discrete Event.
96On December 12, 2023, Mr. Murray attended and sought an adjournment to April of 2024, in order to fully retain Mr. Perrin. He had partially retained Mr. Perrin, but Mr. Perrin was not present, and not prepared to continue the trial on that date. Mr. Murray advised that he needed legal advice prior to waiving his 11(b) right, and the matter was adjourned to January 24, 2024.
97It was adjourned again to February 7, 2024 to coordinate continuation dates. A lawyer from Mr. Sheikh’s office attended on February 7, 2024 and requested an adjournment.
98On February 14, 2024 the matter was adjourned to June 20, 2024 for the anticipated one further day for the Crown’s case. The Defence anticipated calling evidence on July 4, 8 and 11, 2024.
99The entire period between December 12, 2023 and June 20, 2024 is clearly Defence caused delay. Mr. Murray requested the adjournment on December 12, 2023 so that he could retain new counsel. He had not yet retained counsel by that date, and in fact, had only retained Mr. Shaikh’s office as of February 14, 2024. Mr. Peters, who attended, said that he needed time to review 6 banker’s boxes of materials in order to continue the trial. But for Mr. Murray’s request, the trial may have completed in the allotted time. His new counsel was not even retained until February of 2024, and he clearly required time to prepare and review the transcripts, so that the trial could continue. 191 days is Defence delay.
June 20, 2024 to July 11, 2024 – 21 days
100June 20, 2024 was conducted as a trial continuation. Mr. S. Peters attended on behalf of Mr. Sheikh and conducted the trial continuation. July 4, 2024 was the argument of the Crown’s Similar Fact Application. Justice Serre reserved her decision, and the trial continued on July 4 and July 8, and July 11, 2024. There is no dispute that this is inherent trial time.
July 11, 2024 to December 16, 2024 – 158 days
101The Crown claims that this period is a Discrete Event. The Defence says that entire period is “Court delay” or “Crown delay”.
102On July 11, 2024, the Crown observed that continuation dates were being explored with Trial Coordination, and dates were being offered in March of 2025. The Court and the Crown expressed concern with that, and the matter was adjourned to August 28, 2024 to attempt to coordinate earlier continuation dates.
103On August 28, 2024, earlier dates were scheduled for December 17, 18, 19 and 20, 2024. A speak-to date was set for September 18, 2024 to confirm the December trial continuation dates.
104On September 18, 2024, the matter was adjourned to October 2, 2024 to confirm the December dates, as well as two additional dates. On October 2, 2024, an agent for Mr. Sheikh indicated that another lawyer in his firm had been assigned, confirmed December 17, 18 and 19, 2024 as well as February 13 and 14, 2025 as additional trial dates, and was looking to schedule another day in order to complete the trial. On October 23, 2024 additional dates of March 10 and 11, 2025 were confirmed. The matter was adjourned to December 17, 2024 to continue the trial.
105July 12, 2024 to December 16, 2024 is solely attributed to the underestimation of trial time – 156 days. The Crown’s case was complete. The Defence case had commenced. The original trial estimate was three weeks, and the effects of a remote trial slowed the trial down. However, the effect of an underestimation of trial cannot be completely explained by remote attendances. There was a serious underestimation of required trial time, even exceeding the original trial estimate while Mr. Murray was a self‑represented accused. Each party has to bear the effect of this serious underestimation and, accordingly, I apportion this time between Crown and Defence. Accordingly, I attribute 79 days to the Crown and 79 days to the Defence.
December 16, 2024 to June 2, 2025 – 168 days
106The Crown says that this period of time is due to a Discrete Event, or Defence waiver. The Defence says that the entire time is court delay, except between February 5, 2025 and August 15, 2025, which may be characterized as either a Discrete Event or “court delay”.
107On December 16, 2024, the matter was brought forward because the presiding Justice was not available to continue the trial, and the December dates were vacated. The matter was adjourned to February 5, 2025 as a check-in date. At that time, the next dates to be scheduled were February 13, 14, May 5, 6, 8 and 26, 2025. March dates were available, but the Crown was not. February 13 and 14, 2025 were confirmed as trial continuation dates.
108On February 5, 2025, Counsel was advised that the presiding Justice was not able to continue the trial, and by Order of the Chief Justice, pursuant to s. 669.2(3), the trial was to restart before another Judge. Mr. O’Brodovich appeared, and indicated that he was assisting counsel of record, Mr. Sheikh. Another judicial pretrial was set for February 10, 2025. Mr. Murray was given the option of having a new judge simply review the transcripts of evidence, rather than start the trial over again.
109The matter was adjourned to March 5, 2025, to confirm new trial dates, and the February dates were vacated.
110On March 5, 2025, new trial dates were scheduled, to commence on June 2, 2025 and complete on August 15, 2025, for a total of 32 days. For the first time, there is mention of an anticipated 11(b) Application. Earlier dates commencing on April 1 up to May 30, 2025 and June 6 and June 13, 2025 were offered, but Defence counsel was not available on those dates. Defence counsel anticipated that the bulk of the evidence would go in by way of transcript, but did not confirm. A continuing JPT was scheduled to take place on April 2 and the matter was returnable in court for the first day of trial on June 2, 2025.
111December 17, 2024 to June 1, 2025 is a Discrete Event – 168 days. The delay is caused entirely due to the unavailability to the trial judge to continue the trial, and the need to coordinate a judge to sit for an additional 32 days, in order to continue the trial. It is somewhat miraculous that the trial continuation was scheduled as quickly as it was, and all parties are to be commended for working as quickly as they did in order to get this trial restarted and finished within the timeframe.
June 2, 2025 to August 15, 2025 – 75 days to complete the evidence
112The trial was completed during this time. It necessitated that all of the evidence, except the evidence regarding the investigating officer’s evidence be recalled. One day was lost due to my unavailability, one day was lost due to Mr. Murray being ill, and we finished early on two dates. As well, for reasons unknown, Trial Coordination in Sudbury assigned trial dates for five dates for which I was not available. I made myself available on one of those dates, but the others had to be vacated. After discussion with all counsel and court personnel, we started court at 9:00 a.m., and only took one hour for lunch each day in June and for most of the days in August. In that way, we were able to make up significant time for time that would have been lost. I am grateful for all participants being flexible and in ensuring that the evidence in this matter could be completed within the scheduled time. Pending this decision, the parties have scheduled October 9, 2025 to argue the merits of the Crown’s case.
113After the above assessment was completed, I have calculated the total delay attributable to the Defence as 693 days.
114I have calculated the total delay caused by the combination of Discrete Events to be 1,002 days.
115Accordingly, the calculation pursuant to the Jordan framework is as follows:
Total delay: 2,264 days
Less Defence Caused delay: 693 days
Net Delay: 1,571 days
Less Discrete Events: 1,002 days
Remaining Delay: 569 days
116In R. v. Jordan, the Supreme Court determined that any delay over 18 months or a total of 548 days, is presumptively a breach of the right of the accused to be tried within a reasonable time, pursuant to s. 11(b) of the Charter of Rights and Freedoms. As the remaining delay is 569 days, or 21 days in excess of 18 months, Mr. Murray has succeeded in establishing that his right pursuant to s. 11(b) has been violated. Pursuant to s. 24(2), I will enter a stay of proceedings as the remedy for the breach of Mr. Murray’s right.
Released: September 19, 2025
Signed: Justice S. Murphy