WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.S.
Before Justice R. Tomovski
Heard on January 5, 2026
Reasons for Judgment released on January 15, 2026
Palak Mehta counsel for the Crown
Aren Saakyan counsel for the defendant J.S.
Tomovski J.:
I. INTRODUCTION
1The Applicant’s case is a relatively straightforward case involving intimate partner violence allegations. There are no Charter applications. Credibility and reliability are central issues. The trial is scheduled for three days on April 14-16, 2026. It is the first time up for trial. The total delay is 588 days (approximately 19.5 months). This exceeds the 18-month presumptive ceiling established in R. v. Jordan, 2016 SCC 27.
2After the current trial date was set, the Crown made two attempts to secure an earlier Jordan-compliant trial date. In the five months preceding the scheduled trial, twelve earlier dates were offered. The Applicant was unavailable for all of them due to pre-existing commitments.
3The Applicant seeks a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay. He and the Crown disagree on who bears responsibility for the failed attempt to secure an earlier trial date. The Applicant submits that, regardless of how many earlier dates were offered or when they were scheduled, his unavailability for legitimate reasons prevents any of that time from being attributed as defence delay. Whereas the Crown submits that the Applicant’s complete unavailability for numerous dates offered over several months requires that the entire period between those earlier dates and the current trial date being attributed as defence delay.
4Neither party’s position fully reflects the contextual assessment required, which allows delay to be apportioned between the parties, where appropriate. In addition to attributing half of the period spent attempting to secure an earlier trial date as defence delay, I find that the Applicant also contributed to delay by postponing the scheduling of a crown pretrial, judicial pretrial, and trial scheduling meeting. These factors resulted in the net delay falling below the presumptive ceiling. A sub-ceiling stay is not appropriate in the circumstances of this case, as my reasons below will explain.
II. BACKGROUND
5J.S. was arrested and charged on September 4, 2024, with assault, assault with a weapon and mischief against two alleged victims. The Information was sworn on September 5. The trial is scheduled to conclude on April 16, 2026, the third day of a three-day trial.
6The overall delay is 588 days (approximately 19.5 months), which is over the Jordan presumptive ceiling for unreasonable delay of 18 months for a trial in the Ontario Court of Justice, when the Crown has elected to proceed summarily, which it has in this case.
7For the sake of analytical clarity, the history of the proceedings can be divided into three phases: the disclosure phase, the pre-trial phase, and the phase involving an attempt to secure an earlier trial date after the current trial date was set.
A. The Disclosure Phase
8The relevant period runs from September 5, 2024, when the Information was sworn, to January 13, 2025, when the Applicant finally received disclosure.
9The Information was sworn on September 5, 2024, the same day the Applicant was arrested. He was held pending a bail hearing and was released later that day. The case was then adjourned three times for disclosure: first to October 10, then to December 5, and finally to January 16, 2025.
10On October 10, the Applicant advised the court for the first time that he would file a written disclosure request. He did so on October 17, 2024, about 1.5 months after his arrest. The request was generic, asking only for “disclosure”.
11On October 10 and again on December 5, the Applicant said he would conduct a crown pretrial, and if required, a judicial pretrial, once disclosure was received. Core disclosure – officer notes, 911 call and the alleged victims’ video statements – was provided on January 13, 2025.
B. The Pre-trial Phase
12After having received disclosure on January 13, 2025, the Applicant appeared in court on January 16 and advised that he had not yet conducted a crown pretrial because he was waiting for additional disclosure. He did not identify what items he believed were outstanding. Further, aside from his initial written request for disclosure dated October 17, 2024, the Applicant made no subsequent written requests, nor did he specify at any later court appearance what disclosure items remained outstanding. The case was adjourned to March 6 for the Applicant to complete a crown pretrial, and, if required, a judicial pretrial, and to secure trial dates by the next appearance.
13A crown pretrial was held on February 7, 2025. However, there is no evidence before me when the Applicant arranged this pretrial.
14On March 6, the Applicant sought an adjournment in order to schedule a judicial pretrial, despite having previously been directed by the court to do so before that date. Later that same day, he scheduled a judicial pretrial for April 16, even though an earlier date – April 15 – was available.
15On April 16, following the completion of the judicial pretrial, the Applicant scheduled a meeting with the trial coordinator for May 8, 2025. Earlier dates, beginning April 24, were available.
16At the May 8 trial scheduling meeting, a three-day trial was set for April 14-16, 2026. The trial scheduling form indicates that this was the first date offered by the court.
C. Securing an Earlier Trial Date
17I turn now to the parties’ efforts to obtain an earlier trial date. On September 29, 2025, the Crown wrote to the Applicant requesting that they arrange a meeting with the trial coordinator in an attempt to secure an earlier, Jordan-compliant trial date. The meeting occurred on October 2. At that time, the court offered twelve earlier three-day trial dates: December 2-4, 8-10, 16-18, 2025; January 6-8, 12-14, 19-21, 26-28; February 2-4, 9-11, 17-19, 23-25; and March 2-4, 2026. The Applicant was unavailable for all of these dates due to pre-existing court commitments. The Crown was available for all of them.
18The Crown again contacted the Applicant to attempt to secure an earlier trial date, and a further meeting was held on October 29. The same dates were offered, and the Applicant – predictably – remained unavailable. As such, the current trial date of April 14-16, 2026, was maintained.
19On May 29, 2025, the current application was scheduled for January 5, 2026. It proceeded before me at that time. I reserved my reasons to January 15.
III. ANALYSIS
D. The Jordan Framework
20The Supreme Court in Jordan, supra, outlined the framework by which delay is to be assessed under s. 11(b) of the Charter. The framework as it applies to the Ontario Court of Justice is summarized as follows.
21There is a presumptive ceiling of 18 months. Delay above that mark is presumptively unreasonable, whereas delay below it is presumptively reasonable. Delay is considered and calculated in different ways at various stages of the framework. At the outset, the total delay must be calculated. This period is calculated from the date of the charge to the end of the trial: Jordan at paras. 5, 46-49, 60, 68, 82 and 105. The former equates with the date the Information is sworn: see R. v. Allison, 2022 ONCA 329 at paras. 35-43; R. v. Kalanj, 1989 63 (SCC).
22Defence delay is then subtracted from the total delay. Defence delay can result from an explicit or implicit waiver or delay caused solely or directly by the defence’s conduct. An example of the latter is when the Crown and court are ready to proceed but the defence is not. However, legitimate defence conduct is not defence delay: Jordan at paras. 49-66.
23When the delay is above the presumptive ceiling, the onus is on the Crown to establish the presence of exceptional circumstances that justify the delay. Exceptional circumstances are circumstances that are reasonably unforeseen or reasonably unavoidable and the ensuing delay emanating from those circumstances cannot reasonably be remedied by the Crown. The Crown must show that it took reasonable steps to avoid the delay before the presumptive ceiling was surpassed. Those steps need not be successful in preventing the delay: Jordan at paras. 47, 68-70, 81, and 105.
24Generally, exceptional circumstances fall into two groups: discrete events or particularly complex cases. The former includes medical emergencies or unexpected illnesses, whereas the latter includes cases with novel or complicated legal issues, voluminous disclosure or many witnesses requiring a lengthy trial. Like defence delay, delay caused by exceptional circumstances is subtracted from the total delay: Jordan at paras. 71-78.
25When the delay is below the presumptive ceiling, the onus is on the Applicant to show that the delay is otherwise unreasonable by establishing that it took meaningful steps that demonstrate a sustained effort to expedite the case, and the case took markedly longer than it reasonably should have. Meaningful and sustained steps include seeking and setting the earliest available trial dates and giving notice when delay is becoming a problem. Whether a case took markedly longer considers multiple factors including the case’s complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan at paras. 48, 82-87 and 105.
26Stays beneath the presumptive ceiling will be granted only in clear cases: Jordan at para. 83.
E. Jordan Applied
27The total delay in the Applicant’s case is from when the Information was sworn on September 5, 2024 to the anticipated end of trial on April 16, 2026, a period of 588 days (approximately 19.5 months).
1. Crown Delay
28The Crown properly conceded that the period from the swearing of the Information on September 5, 2024, to January 13, 2025, when the Applicant finally received disclosure, constitutes crown delay. I agree. It took approximately 4.5 months after the Applicant’s arrest for the Crown to provide disclosure, including items that would have been in the police’s possession from the outset, such as the alleged victims’ statements and officer notes. Not only did the Crown fail to provide disclosure in a timely manner, but it also offered no explanation for the delay, reflecting a persistent culture of complacency regarding the production of disclosure.
29This period of 130 days is attributable to the Crown.
2. Defence Delay
30Three discrete periods of delay attributable solely to the defence must be deducted from the total delay.
31The first period runs from January 20 to February 7, 2025, totalling 18 days. After receiving disclosure on January 13 and allowing one week for its review and for obtaining client instructions, the Applicant nonetheless delayed in scheduling and completing a crown pretrial until February 7.
32This delay was unreasonable for several reasons. First, at the January 16 court appearance, the Applicant advised that a crown pretrial had not been conducted because he was awaiting additional disclosure. However, by January 13, the Applicant had received core disclosure, which I find was sufficient to permit a meaningful crown pretrial: see R. v. Kovacs-Tatar, 2004 42923 (ON CA) at para. 47; and R. v. Richards, 2010 ONSC 6202 at para. 22.
33Second, the Applicant neither wrote to the Crown nor advised the court what, if any, disclosure remained outstanding or how the absence of such items prevented a crown pretrial from proceeding. Even at the time of this application, the record remains unclear as to the nature or existence of any outstanding disclosure.
34Third, the Applicant did not take advantage of the opportunity to conduct an earlier pretrial with an “R1” Crown, who are available daily in this jurisdiction for that purpose.
35The second period of delay runs from February 14 to March 6, and April 15 to 16, 2025, totalling 21 days. After completing the crown pretrial on February 7 and allowing one week for obtaining client instructions, the Applicant delayed in arranging a judicial pretrial. A judicial pretrial was not scheduled until March 6, and even then, it was set for April 16 despite April 15 being available. After receiving disclosure on January 13, the Applicant appeared in court on January 16 and represented that he would complete both a crown pretrial and a judicial pretrial before the next court date. He then requested a lengthy adjournment – nearly two months – to March 6 for that purpose, yet returned on that date seeking a further adjournment, having failed even to schedule the judicial pretrial. This conduct contributed to the overall delay.
36The third period of delay runs from April 24 to May 8, 2025, totalling 14 days. Following the completion of the judicial pretrial on April 16, the Applicant scheduled a meeting with the trial coordinator for May 8 to obtain trial dates, despite several earlier dates being available beginning on April 24.
37The record contains no explanation for the Applicant’s failure to arrange an earlier meeting with the trial coordinator. Even allowing time for updated client instructions after the judicial pretrial, April 24 was an appropriate and available date for the trial scheduling meeting. The Applicant’s choice to wait until May 8 contributed to the overall delay.
38Subtracting 18, 21 and 14 days from the total delay of 588 days leaves a net delay, below the presumptive ceiling, of 535 days (approximately 17.5 months): see R. v. Shaikh, 2019 ONCA 895 at footnote 2 for the conversion of actual days to months.
3. Delay Apportioned per Hanan
39This period of delay relates to the parties’ efforts to obtain an earlier trial date than the one already scheduled. The relevant period runs from December 2-4, 2025 to April 14-16, 2026, which is the first of the twelve earlier trial dates that were offered but unavailable to the Applicant, and the current trial date. Having considered all of the relevant circumstances, I find that this period of delay should be apportioned between the Applicant and the Crown in accordance with the principle set out in R. v. Hanan, 2023 SCC 12.
a. The Principle in Hanan – Explained
40In Hanan, the Supreme Court rejected a bright-line rule that would attribute all subsequent delay to the defence whenever an initially offered date is declined due to defence unavailability. Instead, the Court emphasized a contextual approach in which all relevant circumstances must be assessed to determine whether and how the ensuing delay should be apportioned: Hanan at para. 9; see also R. v. M.E., 2025 ONCA 729 at paras. 17-18 and 26; R. v. Jacques-Taylor, 2024 ONCA 458 at paras. 5-7; R. v. Shaporov, 2025 ONCA 281 at para. 33; and R. v. Jones, 2025 ONCA 103 at para. 33. Relevant considerations include the reason why rescheduling was required and whether that reason lies with the defence; the extent of the defence’s availability; and the explanation for any defence unavailability: R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-48.
41The Court of Appeal further clarified the application of Hanan in R. v. K.D., 2025 ONCA 639. At para. 46, van Rensburg J.A. stressed that Hanan does not mean that delay must be apportioned in every case; rather, it requires a consideration of the circumstances in every case to determine whether apportionment is appropriate. Likewise, in Jones, supra, at para. 32, the Court confirmed that Hanan does not create an “inverse bright-line rule” that would automatically shield the defence from any allocation of delay.
42The contextual approach in apportioning delay does not depend on the presence of exceptional circumstances, nor is it limited to cases where the Crown caused the need to obtain a new date. This narrower interpretation was expressly rejected in K.D. At para. 46, van Rensburg J.A. observed that although the Crown sought to confine Hanan to situations involving exceptional circumstances, “nothing in Hanan limits the principle that all relevant circumstances should be considered to determine how delay should be apportioned among the participants”.
b. The Principle in Hanan – Applied Generally
43Courts have applied the Hanan principle to a range of circumstances. Hanan itself involved apportioning delay arising from the need to reschedule a trial due to crown fault. In K.D. and Jacques-Taylor, supra, the principle was applied to the scheduling of an initial trial date where neither party was at fault: see also R. v. R.W., 2025 ONSC 2297 at paras. 42-47. In M.E., supra, delay was apportioned both in securing an initial trial date and in arranging a continuation date. In Jones, supra, the Court apportioned delay in the scheduling of a judicial pretrial, again in circumstances involving no party fault: see paras. 22-36.
44Unlike those cases, the Applicant’s case concerns whether, and in what manner, delay should be apportioned when the parties attempt to obtain an earlier trial date after a trial date has already been set. Several decisions in this jurisdiction have addressed the application of Hanan in this specific context: see R. v. A.H., 2025 ONCJ 243 at paras. 7-23; R v. A.B., 2023 ONCJ 459 at paras. 21-27; and R. v. S.C, 2022 ONCJ 486 at paras. 8-29.
45By way of example, in A.H., supra, Monahan J. apportioned equally between the Crown and the accused the delay associated with efforts to secure earlier trial dates: see paras. 22-23. After an initial trial date was set, the case was brought before a backlog-reduction court, where multiple earlier dates were offered that provided sufficient time for the accused to prepare. Although the accused’s counsel had legitimate reasons for being unavailable (including a lengthy jury trial and a pre-paid family vacation), Monahan J. nevertheless concluded that some portion of the delay should be attributed to the defence. At para. 16, he explained:
[I]f there are multiple blocks of earlier dates offered over a reasonable period of time and the dates allow sufficient time to permit defence counsel to prepare for trial, then defence delay may be attributed from the first date offered depending upon the circumstances
c. The Principle in Hanan – Applied to the Applicant’s Case
46As in A.H., the Applicant was offered numerous earlier trial dates on October 2, 2025, each of which provided ample time to prepare for what is a relatively straightforward three-day trial focused primarily on credibility and reliability issues. The Applicant had possessed disclosure since January 13, 2025, and had already reviewed it and participated in both a crown and judicial pretrial to canvass trial issues. There is no basis to conclude that the Applicant could not be prepared to proceed on one of the earlier dates offered, well in advance of the currently scheduled trial of April 14-16, 2026.
47However, I am not persuaded by the Crown’s submission that the entire period – from the earliest of the offered trial dates (December 2-4, 2025) through to the current trial date – should be attributed to the defence. The Crown’s position relies almost exclusively on the amount of time available for the Applicant to prepare for trial.
48While I accept that an earlier trial date of December 2-4, 2025, offered on October 2, would have provided the Applicant with sufficient preparation time, trial readiness is not the only relevant consideration.
49Reasonable availability is a significant consideration. It would not be reasonable to expect the Applicant to be available on short notice, and I find that this applies to the December dates and, to a lesser extent, the January dates – particularly given that December is a period in which court availability is often reduced. By contrast, the February and March dates were offered four to five months in advance, which is sufficient time to expect the Applicant to have reasonable availability or, if not, bear some responsibility for the resulting delay. The Applicant was unavailable for all of the February and March dates, and although not determinative, the application record discloses no explanation for that unavailability.
50Applying the guidance from Hanan and subsequent cases to this period (December 2-4, 2025 to April 14-16, 2026), I find that apportioning some of the delay arising from the efforts to obtain an earlier trial date is both reasonable and warranted in the circumstances.
51Of the twelve earlier trial dates offered by the trial coordinator on October 2, 2025, (December 2-4, 8-10, 16-18, 2025, January 6-8, 12-14, 19-21, 26-28, February 2-4, 9-11, 17-19, 23-25 and March 2-4, 2026), I do not apportion the earliest of those dates (December 2-4, 2025 to January 26-28, 2026) as defence delay because they do not account for the Applicant’s reasonable availability.
52I find that the Applicant’s unavailability beginning February 2-4, 2026 constitutes defence delay. The trial could have concluded below the presumptive ceiling as early as February 4. The 70-day period from February 4 to April 16, 2026 provided ample time to prepare for trial while also accommodating reasonable availability.
53Subtracting 70 days from the net delay of 535 days leaves a net delay of 465 days (approximately 15.2 months): see Shaikh, supra.
4. A Sub-ceiling Stay is not Appropriate
54In his written materials, the Applicant did not address the possibility of a net delay falling below the presumptive ceiling. During oral submissions, I asked the Applicant to indicate his position on a sub-ceiling stay in the event that I found the net delay to be below the presumptive ceiling.
55The Applicant’s primary basis for seeking a sub-ceiling stay was the alleged existence of actual prejudice. Alternatively, he submitted that he took meaningful steps demonstrating a sustained effort to expedite the proceedings. I reject both submissions.
56With respect to the submission based on prejudice, Jordan makes clear that the revised framework removes prejudice as an independent factor in the s. 11(b) analysis. At para. 54, the Court states: “although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests.” The presence or absence of actual prejudice below the ceiling does not justify a stay.
57As for the Applicant’s alternative argument, I am not satisfied that this is the type of clear case in which a sub-ceiling stay is warranted. On the contrary, the record demonstrates several instances where the Applicant failed to take meaningful steps or to sustain efforts to move the matter forward.
58First, the Applicant appeared content with the slow pace of disclosure. He waited approximately 1.5 months after his arrest to write a generic request for disclosure. Aside from that request, the Applicant did not follow up with a written request outlining what, if any, items in his view precluded him from conducting a crown pretrial earlier than he did. Nor did the Applicant articulate such concerns at any court appearance. While this does not absolve the Crown of its constitutional obligation to provide disclosure, the Applicant’s conduct demonstrates an indifference to the pace at which disclosure was being produced.
59Second, the Applicant’s scheduling inaction contributed to the overall delay. The Applicant failed to promptly schedule a crown pretrial, a judicial pretrial and a trial scheduling meeting – delays that, cumulatively, amounted to roughly two months of inactivity and undeniably impeded the setting of an earlier trial date.
60Third, the Applicant did not accept any of the earlier trial dates offered. After the Applicant scheduled this application, the Crown brought the case forward in an effort to secure an earlier, Jordan compliant trial date. The Applicant, however, was unavailable for all twelve dates offered.
61In light of these three factors, it is unnecessary to consider whether the case took markedly longer than it reasonably should have. In any event, the Applicant did not address this criterion in his written materials or during submissions.
IV. CONCLUSION
62The net delay of 465 days (approximately 15.2 months) is below the Jordan presumptive ceiling. The Applicant has failed to rebut the presumption and show that the delay is otherwise unreasonable and that a sub-ceiling stay is warranted.
63The application is dismissed.
Released: January 15, 2026
Signed: Justice Tomovski