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 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
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 (Respondent)
— AND —
M.P. (Applicant)
Section 11(b) Charter Ruling
Before Justice Davin M.K. Garg
Heard on April 10, 2026
Reasons released on June 15, 2026
Dayna Tinkham counsel for the respondent Crown
Natalia Pawlowski counsel for the applicant
GARG J.:
Overview
1The applicant is charged with sexual assault and forcible confinement. The initial trial dates were adjourned following the Crown’s late disclosure. The defence argues that the resulting delay to the anticipated end of trial violates the applicant’s right to be tried within a reasonable time under s. 11(b) of the Charter. The Crown counters that the net delay remains below the 18-month presumptive ceiling after deducting defence delay. This application turns on the attribution of defence delay.
2After accounting for defence delay, I conclude that the net delay exceeds the presumptive ceiling. The applicant’s s. 11(b) rights have been infringed, and a stay of proceedings is required under s. 24(1).
Procedural History
3The parties provided comprehensive charts; I have tried to distill that information to its salient points:
| Date | Event | Total Delay |
|---|---|---|
| April 4, 2024 | Information sworn. | 0 days |
| April 10, 2024 | Initial disclosure provided. | 6 days |
| April 12, 2024 | First court appearance; standard Jordan directive adjournment. | 8 days |
| July 5, 2024 | Court appearance; defence had recently reviewed disclosure, booked a CPT, and would schedule a JPT. | 92 days |
| July 9, 2024 | Date for the CPT but cancelled by the Crown. | 96 days |
| July 30, 2024 | CPT held. | 117 days |
| August 16, 2024 | Court appearance; defence would book JPT. | 134 days |
| September 27, 2024 | Court appearance; JPT not held because of defence counsel’s health issues; waived s. 11(b) until next court date. | 176 days |
| October 25, 2024 | Court appearance and JPT re-scheduled. | 204 days |
| November 20, 2024 | JPT held; defence still needed to look at records in their possession to determine whether to bring a pre-trial s. 278 application. | 230 days |
| November 29, 2024 | Court appearance; post-JPT steps not taken because of defence counsel’s health issues. | 239 days |
| December 20, 2024 | Court appearance; defence seeking another CPT and waived s. 11(b) until next court date. | 260 days |
| January 13, 2025 | CPT held. | 284 days |
| January 31, 2025 | Court appearance; Crown sought case management; post-CPT steps not taken because of defence counsel’s health issues; waived s. 11(b) until next court date. | 302 days |
| February 5, 2025 | Court appearance; defence counsel’s health issues remained cause of delay; waived s. 11(b) until next court date. | 307 days |
| March 5, 2025 | Court appearance; trial dates not set due to logistical hurdles and adjourned to permit scheduling by email. | 335 days |
| March 14, 2025 | Court appearance; pre-trial applications and trial dates set on a with or without counsel basis (anticipated end of trial was December 18, 2025), with a further date to confirm retainer. | 344 days |
| June 6, 2025 | Court appearance to see if defence counsel was retained and to set a self-represented JPT. | 428 days |
| June 24, 2025 | Court appearance to confirm trial dates and to adjourn for a retainer update. | 446 days |
| July 21, 2025 | Court appearance for a retainer update; s. 486 order signed to appoint counsel if retainer not realized. | 473 days |
| August 12, 2025 | Court appearance for retainer update. | 495 days |
| August 20, 2025 | Court appearance for retainer update; indication that pre-trial applications would likely be vacated. | 503 days |
| August 22, 2025 | Court appearance; defence abandoned the pre-trial applications; the dates were vacated. | 505 days |
| October 31, 2025 | Trial confirmation appearance; defence counsel confirmed their retainer. | 575 days |
| December 9, 2025 | Crown learned about new messages that had not been shared by the police. | 614 days |
| December 10, 2025 | Defence received the disclosure five days before trial: a 75-page document with screenshots of messages between the complainant and the applicant. | 615 days |
| December 12, 2025 | Court appearance; defence request to adjourn the trial was granted on account of the new disclosure. | 617 days |
| December 16, 2025 | Court appearance to set new trial dates; defence requested time to review the new disclosure. | 621 days |
| December 18, 2025 | Court appearance; adjourned to set new trial dates. | 623 days |
| December 22, 2025 | Court appearance where new trial dates were set; supplementary disclosure provided. | 627 days |
| September 24, 2026 | Anticipated last day of trial. | 904 days |
4Both parties agree that the total delay in this case is 904 days.
Admitted Periods of Defence Delay
5The defence acknowledges that the following periods constitute defence delay due to s. 11(b) waivers or defence counsel’s health-related unavailability:1
August 16, 2024 to September 27, 2024: 42 days
September 27, 2024 to October 25, 2024: 28 days
November 29, 2024 to December 20, 2024: 21 days
December 20, 2024 to January 13, 2025: 24 days
January 13, 2025 to January 31, 2025: 18 days
January 31, 2025 to February 5, 2025: 5 days
February 5, 2025 to March 5, 2025: 28 days
6The admitted defence delay totals 166 days. The defence conceded several additional days; however, they fall within periods for which the Crown submits that a greater portion should be considered defence delay. I will therefore address them in the section below.
Contested Periods of Defence Delay
7I start with the periods of delay associated with defence counsel’s unavailability.
Defence counsel’s unavailability for the initial trial dates
8I conclude that the period of delay caused by defence counsel’s unavailability for the initial trial dates is properly considered defence delay.
9The relevant facts are as follows. The parties initially sought two days for a s. 278 application (reflecting its two-stage process) and three trial days. The earliest day offered was May 15, 2025. Because of the need for a gap between the first and second stages of the application, and between the second stage and the start of trial, the earliest final trial date offered was August 22. The trial co-ordinator offered eight different combinations of application and trial dates throughout every month from May through November. All were rejected by the defence. Counsel ultimately accepted application dates on September 9 and October 31, and trial dates on December 15, 17, and 18.
10The defence argues that only the specific dates offered by the trial co-ordinator and rejected by the defence should be considered defence delay. I disagree.
11The court and Crown were ready to proceed on all the dates offered, until those ultimately accepted by defence counsel. Therefore, the delay between when the trial could have concluded and when it was scheduled to conclude was directly caused by the defence. But for defence counsel’s unavailability, the delay would not have arisen. Attributing the entire period to the defence accords with the jurisprudence: R. v. Williamson, 2016 SCC 28 at paras. 21-22; R. v. Albinowski, 2018 ONCA 1084 at para. 33; R. v. Bent, 2025 ONSC 1962 at paras. 18-20; R. v. Cadelis, 2026 ONSC 1748 at paras. 47-48. As Campbell J. explained in Bent at para. 20, “an accused cannot properly delay a criminal trial in order to accommodate the professional calendar of his or her defence counsel, and then later turn around and realistically complain that their own actions in this regard resulted (or contributed) to an unreasonable delay in the criminal proceedings against them”.2
12I am mindful that there is no bright line rule requiring that the attribution of all delay following the rejection of available dates: R. v. B.J., 2025 ONCA 103 at para. 32. A contextual assessment is required: R. v. Hanan, 2023 SCC 12 at para. 9. However, the context here supports attributing the whole period to the defence.
13There is no evidence of the defence being prepared to proceed on other dates not offered by the trial co-ordinator. Had such dates existed, then counsel could have suggested them. The reasonable inference is that earlier dates were not pursued because the defence preferred later dates. That inference is supported by the subsequent history of the matter. Even after the trial dates were set, the case continued to return to court to address and confirm the retainer.
14The scheduling process also supports full attribution to the defence. The trial co-ordinator offered a sufficient assortment and configuration of dates across multiple months. This is not a situation of limited availability, as described in B.J. at para. 36. Nor were the offered dates so soon to raise the concern that counsel cannot maintain constant availability: R. v. Godin, 2009 SCC 26 at para. 23.
15I reject the defence argument that the subsequent disclosure of messages between the complainant and the applicant should affect the attribution of earlier delay. The assessment of delay must be grounded in what was known to the parties at the time decisions were made. The late disclosure did not cause the delay; see R. v. Allison, 2022 ONCA 329 at paras. 50-51. There would also be an element of double counting to rely on the late disclosure in both the pre- and post-disclosure periods.
16I therefore accept the substance of the Crown’s position that the delay resulting from defence counsel’s unavailability for the initial trial dates is properly characterized as defence delay. That period begins on August 22, 2025, when the trial could have finished based on the dates offered by the trial co-ordinator. It does not, however, extend to December 18, when the trial was scheduled to finish. It ends on December 9, when the Crown became aware of the outstanding disclosure. From that point forward, the defence could no longer be said to be the sole or direct cause of the continuing delay.
17This period of defence delay from August 22 to December 9, 2025 is 109 days.
Defence counsel’s unavailability for the new trial dates
18I conclude that the period of delay caused by defence counsel’s unavailability for the new trial dates results in 12 days of defence delay.
19I summarize the relevant facts. Five days before the initial trial was set to commence, the Crown disclosed a 75-page document containing screenshots of messages between the complainant and the applicant. In the adjournment application that followed, the Crown stipulated that the disclosure contained 40 new pages of messages with some duplication. There were 14 screenshots of messages sent by the complainant, and the rest were predominantly messages from the applicant. The messages were not disclosed earlier simply because the police had missed them. Jennis J. granted the adjournment on the basis that:
Nor the Crown nor the court knows what the defence strategy is or will be and the disclosure of a significant amount of communications between the accused and the complainant only leads to the reasonable conclusion that the defence is entitled to an adjournment to review the evidence and determine its potential applicability to the trial.
20When the parties asked for new dates, they once again sought two days for applications and three days for trial. The earliest final trial date offered was June 25, 2026. The trial co-ordinator offered seven different combinations of dates. The defence rejected the first six due to counsel’s unavailability and ultimately accepted application dates on June 19 and July 13, and trial dates on September 21, 23, and 24.
21The defence argues that only the specific dates offered by the trial co-ordinator and rejected by defence counsel should be considered defence delay, for a total of 12 days. The Crown counters that, from when the new trial could have ended (June 25) until when it is now set to end (September 24), 50 percent of the time should be attributed to the defence, for a total of 45.5 days.
22While defence counsel’s unavailability was the proximate cause of the delay, both parties recognize that the circumstances justify apportioning only a portion to the defence: see R. v. Boulanger, 2022 SCC 2 at para. 8. The question is how much.
23The new disclosure was the precipitating cause of the adjournment and the need to reschedule the trial. The Crown sought to diminish the significance of the disclosure by highlighting that the volume of new messages was modest, that many were authored by the applicant, and that the material bore some connection to the abandoned pre-trial application. I do not accept that these considerations materially reduce the impact of the new disclosure. The messages ought to have been disclosed well before trial; the police had them before charges were laid. The late disclosure required the defence to reassess its position, including whether further applications under ss. 276 and 278 were necessary. That reassessment affected the timeline for completing the case. I have no evidence to support a suggestion that the new disclosure ought not to have prompted these applications. From my assessment, the defence has acted fairly and with reasonable diligence.
24The applicant’s prior familiarity with the messages does not diminish the significance of the disclosure. The Crown’s disclosure obligations are not satisfied by an accused’s personal knowledge of the underlying communications. Defence counsel was entitled to receive the material, review it for completeness, and determine whether it represented all relevant communications or a selective subset. In these circumstances, the late disclosure provides a sound basis for moderating the extent to which the ensuing delay should be attributed to the defence.
25The applicant’s position is supported by the jurisprudence dealing with the rescheduling of a trial following events not attributable to the defence. In R. v. Hanan, 2019 ONSC 320, late disclosure contributed to the last-minute adjournment of the initial trial. The court offered two sets of replacement dates that were separated by several months. The defence was only available for the later dates. The application judge attributed to the defence only the specific earlier dates that were declined. The judge did not attribute to the defence any of the period between the two sets of dates.3 Similarly, in R. v. Arth, 2022 ONCJ 216, the initial trial did not finish because the court was stacked and a key police witness did not attend. The application judge attributed to the defence only the specific days when the court and Crown were available to continue but the defence was not.
26In this case, a contextual analysis supports attributing 12 days of defence delay, which corresponds to the dates offered by the trial coordinator and declined by defence counsel. This approach keeps the defence accountable for securing timely trial dates, even where the need to reschedule arises through no fault of their own: see R. v. Jordan, 2016 SCC 27 at para. 41; R. v. Jacques-Taylor, 2026 SCC 20 at paras. 2, 5. Had additional dates been offered and declined, more delay would have been attributed to the defence. At the same time, this attribution reflects that the rescheduling was necessitated by the Crown’s late disclosure.
27I add one final observation. When re-scheduling a trial that already faces s. 11(b) pressures, it might often be necessary to shorten the intervals between the stages of a ss. 276 or 278 application, as well as between the application and the trial. While time for judicial consideration is required, the approximately one-month interval sought between the two stages could have been shorter.
Time to review the new disclosure
28The defence received the new disclosure on December 10, 2025. Counsel was not ready to set new trial dates on December 16, because she had not finished her review of the disclosure and completed associated steps. The matter was adjourned until December 18. I attribute these two days as defence delay. Without understating the significance of the new disclosure to the defence strategy, its scope was limited and likely familiar to the applicant. These two days are where the court and Crown were ready to proceed but the defence was not, beyond what I would characterize as expected preparatory time.
Jordan practice direction adjournment
29I reject the Crown’s argument that any period between the first and second court appearances should be attributed to the defence.
30In November 2023, the Ontario Court of Justice issued a practice direction with respect to the adjournment following a first appearance in criminal case management court. The objective is to reduce unnecessary administrative appearances. Rather than granting a series of short-term adjournments to confirm the completion of individual steps, the practice direction establishes a standard 12-week adjournment for matters in which counsel is retained at the first appearance or shortly thereafter.
31The Crown argues that the period between the first and second appearances—April 12 to July 5, 2024—should be attributed to the defence because the defence did not complete the steps outlined in the practice direction. In particular, defence counsel had not conducted a Crown pre-trial meeting (CPT), nor scheduled and conducted a judicial pre-trial (JPT). Rather, an agent for counsel at the second appearance said that “counsel recently met with the client to review disclosure, and a CPT is being held next week, after which counsel will schedule and conduct a JPT”.
32I acknowledge that the defence had not completed all the steps of the practice direction.4 I do not condone the defence approach. But the practice direction is not aimed solely at the defence. In the spirit of Jordan and its progeny, the direction is aimed at both parties. It holds that “[b]oth the Crown and defence counsel will work cooperatively to complete” such tasks as scheduling and conducting a CPT and JPT. Furthermore, “if either party encounters a problem with moving the case forward during the adjournment period, the parties are expected to communicate and cooperate with one another to address the issue. If they are unable to resolve the issue, either party should have the matter brought before the Court by either scheduling a judicial pre-trial or bringing the matter forward so that it can be addressed”. Jordan directed trial courts to “review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently”: para. 139. The practice direction reflects this court’s obligation to promote active case management and facilitate collaborative progress of criminal proceedings.
33There is no evidence that the Crown took steps during this period to advance the matter forward. If the Crown had asked to schedule a JPT or an earlier CPT and defence counsel had refused, then the argument for defence delay would be stronger. In the absence of any such effort, it cannot be said that the resulting delay was caused solely or directly by the defence: see Jordan at paras. 63, 66. Nor was the defence attempting to create delay. Where the Crown did not avail itself of the mechanisms provided by the practice direction, I decline the invitation to attribute any portion of this period to the defence. Instead, the period falls within the inherent time requirements for bringing a case to trial: see R. v. Vrbanic, 2026 SCC 19 at paras. 29, 31; Jordan at para. 53.
Other potential defence delay
34The Crown argues for 26 additional days of defence delay: (i) 17 days between the CPT on July 30 to the court appearance on August 16, 2024; and (ii) nine days between the JPT on November 20 and the court appearance on November 29, 2024. For the first period, the Crown argues that delay in scheduling a JPT should be attributed to the defence because one should have already been scheduled. For the second period, the Crown argues for defence delay because defence counsel had not obtained client instructions following a JPT.
35I do not attribute these periods of delay to the defence.
36For the first period, the matter was not moving with the dispatch expected at the case management stage. While defence counsel did not comply with the Jordan practice direction, there is also no indication of the Crown taking remedial steps, as already discussed. The court too could have been more proactive. The matter was adjourned for an extended period to schedule a JPT when, from my experience, it could have been arranged at the same court appearance. In any event, the delay that followed the court appearance has already been attributed to the defence.
37For the second period, defence counsel’s inability to obtain instructions has already been accounted for as defence delay. The inability to obtain instructions caused the delay after the court appearance, not the delay between the JPT and the court appearance.
38In determining whether any portion of these periods should nevertheless be attributed to the defence, I adopt the required bird’s eye view of the case: Jordan at paras. 37 and 91. The Crown contributed to delay during the intake phase, including by cancelling a CPT and rescheduling it. There is also some merit to the defence submission that the s. 11(b) waivers were given on the understanding that disclosure was complete.5 Since this holistic context informs the attribution exercise, I decline to take an expansive approach to defence delay when evaluating these discrete periods.
Total defence delay
39The admitted defence delay plus the three additional periods of defence delay totals 289 days of defence delay.
Net delay
40Subtracting the 289 days of defence delay from the total delay results in a net delay of 615 days.
Conclusion
41The presumptive ceiling is 18 months or 548 days. The net delay is well above the ceiling. The Crown does not advance any complexity or other exceptional circumstances to justify or reduce the net delay.
42I maintain a residual concern about finding a s. 11(b) breach in circumstances where the defence took considerable time to be ready for trial. However, much of that time has already been accounted for as defence delay, including delay arising from counsel’s unavailability, health issues, and the request for a further CPT to explore resolution. While the matter returned to court repeatedly to address the retainer, the reality is that the defence still set trial dates and was ready to proceed sufficiently in advance of trial. What ultimately altered the course of this case was not the pace of the defence, but the late disclosure. A single but significant disclosure failure can have outsized consequences, particularly where it triggers the layered pre-trial applications that often accompany sexual assault prosecutions. Systemic pressures, including under-resourcing in this jurisdiction, undoubtedly contributed to later trial availability. But it was the late disclosure that pushed the matter into the realm of unreasonable delay. As Wein J. explained in R. v. McCaffery, [2005] O.J. No. 5524 (Sup. Ct). at para. 40:
… delay caused by the [state] is particularly troubling in a jurisdiction where the system is overburdened, where unnecessary delays must be actively avoided. The public, and those injured by potentially criminal conduct, are understandably distressed when criminal charges are dismissed due to delay. This makes additional delay of a significant length which is caused by the police or Crown particularly problematic”.
43I find a breach of the applicant’s rights under s. 11(b) of the Charter. The Crown does not argue for an alternative remedy. I stay the charges pursuant to s. 24(1).6
Released: June 15, 2026
Signed: Justice Davin M.K. Garg
Footnotes
- The applicant appears to have counted both the start and end dates in every calculation, resulting in a double-counting of dates. I have corrected the calculation.
- This case appears to be unreported but was provided to me by the parties.
- The application judge’s approach on this issue was affirmed by the Court of Appeal (2022 ONCA 229 at paras. 47-49, 58) and the Supreme Court (2023 SCC 12 at para. 9).
- The defence had booked a CPT prior to the second appearance.
- The defence does not withdraw the waivers, and the waived periods have been considered as defence delay.
- I have appended the following documents to the physical copy of these reasons: (i) Trial Scheduling Form, March 13, 2025; (ii) Trial Scheduling Form, December 18, 2025; and (iii) Ontario Court of Justice Practice Direction.