ONTARIO COURT OF JUSTICE
Toronto Court File No.: 23-1000749
BETWEEN:
HIS MAJESTY THE KING
— AND —
KUNAL DHANAK
REASONS FOR JUDGMENT
Section 11(b) of the Charter of Rights and Freedoms
Heard on February 27, 2026
Released on March 3, 2026
Mr. M. Chiang Counsel for the Crown
Mr. A. Hamzeh Counsel for Mr. Dhanak
I. Introduction
1Mr. Dhanak was arrested for impaired driving causing bodily harm, dangerous driving causing bodily harm and failing to provide breath samples on January 5, 2023. The Information was sworn on January 14, 2023. His trial is set to conclude on March 31, 2026. The total delay in this case is approximately 38.5 months. Since that period is well above the Jordan1 ceiling, Mr. Dhanak argues that his s. 11(b) Charter right to a trial within a reasonable time has been violated. As a result, he seeks a stay of proceedings pursuant to s. 24(1).
2Mr. Dhanak has had two lawyers in this case. His first lawyer acted for him for approximately 22 months. Mr. Dhanak waived his s. 11(b) rights during half of that time. When Mr. Hamzeh took over the case in November 2024, trial dates had not yet been set. Mr. Hamzeh quickly got down to the business of doing so. On February 26, 2025, a two-day trial was scheduled for October 7 and 8, 2025. The trial was not completed on those dates and had to be adjourned. It is set to continue on March 30 and 31, 2026.
3For the following reasons, I have concluded that Mr. Dhanak is entitled to a stay of proceedings. This is regrettable. First and foremost, because the public is deprived of a trial on the merits. At this juncture, I can say that the Crown’s case on the refuse roadside sample and the impaired driving charges appears to be strong. It is regrettable also because aspects of the conduct of this case demonstrated the complacency that the Supreme Court of Canada sought to eliminate almost 10 years ago.
4This case should serve as a lesson to Crown counsel not to be lulled into a false sense of security by a series of 11(b) waivers. It also illustrates the need to maintain clear evidence of the Court’s and parties’ availability when trial dates are being sought.
5That said, this case should not be taken as model of how to litigate s. 11(b) claims. Tardy s. 11(b) claims can waste judicial resources and frustrate the proper administration of justice. As the Supreme Court of Canada stated in R v J.F. 2022 SCC 17 at para 36, s. 11(b) breaches reveal themselves during a trial only exceptionally. All parties must be proactive in the pursuit of efficiency and timeliness throughout the proceedings. See also R v K.G.K. 2020 SCC 7 at para. 43.
III. Applicable Legal Principles
6Jordan’s analytical framework is well-known. The task of a judge hearing such an application is to determine the total delay period, and to subtract from it periods of defence delay. There are two kinds of defence delay: delay waived by