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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
— AND —
JORDAN SAUNDERS-WHITE
Before Justice F. A. McCracken
Heard on June 5, 2026
Reasons for Judgment released on June 16, 2026
I. Boiarski counsel for the Crown
A. Kleiman counsel for the accused Jordan Saunders-White
1Jordan Saunders-White is charged with two counts of sexual assault, two counts of assault, and one count of pointing a firearm. He asserts that his right to be tried within a reasonable time has been infringed and applies for a stay of proceedings.
2He was charged on April 3, 2024. The trial is presently scheduled to conclude on October 26, 2026. The total delay in this case is 936 days, or 30 months and 24 days. This exceeds the 18-month presumptive ceiling for a matter in the Ontario Court of Justice.
3The Crown seeks to justify this delay by attributing much it to the conduct of the defence. They assert that at least 373 days are attributable to the defence, putting the net delay at 563 days, or approximately 18.5 months – again, over the Jordan ceiling. They submit that this delay is justified by exceptional circumstances – case complexity and a specific scheduling event.
4The Applicant submits that no delay should be deducted as defence delay. On that approach, the net delay remains 936 days, placing the case 389 days, or 12 months and 24 days, above the presumptive ceiling. Through his counsel, he says that this delay is not justified by exceptional circumstances.
5For the reasons that follow, I find that even after allowing for defence delay, the net delay exceeds the presumptive ceiling. I decline to deduct any time as a discrete exceptional circumstance, and I do not find this case to be particularly complex in the Jordan sense. The application is granted.
TIMELINE
| Date of event | What took place | Days since Information sworn |
|---|---|---|
| April 3-5, 2024 | The Information was sworn. The accused appeared in bail court on three consecutive days and then was released. The matter was adjourned to its first case management appearance, on May 10, 2024. | 0 |
| April 23, 2024 | Defence counsel writes the Crown’s Office advising that they have been retained and are requesting disclosure. | 20 |
| May 10, 2024 | Defence counsel’s office appeared and advised that counsel had been retained. Initial disclosure was not ready at this appearance. The Crown requested a 12-week adjournment while disclosure was being vetted. The matter was adjourned for disclosure and CPT. | 37 |
| August 2, 2024 | Defence advised that some disclosure had been received and that a further disclosure request had been made earlier that day for the complainant’s video statement and any CCTV footage. A CPT had been scheduled for September 13, 2024. The Crown elected by indictment. The matter was adjourned for an update following the CPT and on disclosure. | 121 |
| September 11, 2024 | A JPT was conducted before Justice Rosenberg. The JPT form indicates, among other things, that the defence conceded the item was a BB gun but did not admit it was a firearm or prohibited weapon and the agreed trial estimate was two days. | 161 |
| September 17, 2024 | Defence advised that disclosure had been received, with the latest release on September 12, 2024, and that a further disclosure request had been sent. Defence advised that the JPT had been conducted on September 11, 2024, and that a trial scheduling appointment was scheduled for later that day. Defence also advised that, after obtaining OCJ trial dates, Superior Court dates would be canvassed before election so that the earliest available trial route could be identified. The matter was adjourned to November 15, 2024, to set trial dates. In the interim, correspondence addressed completion of the scheduling form, including defence follow-ups on September 25 and September 30, 2024, and Crown provision of an updated form on October 2, 2024. | 167 |
| October 8, 2024 | A second trial scheduling meeting took place. Trial dates of July 3 and 4, 2025 were secured along with pre-trial motion dates. | 188 |
| November 15, 2024 | No one appeared for the accused. The court noted that counsel had appeared on the previous occasion and that the matter had been properly adjourned to that date. The matter was adjourned to November 29, 2024, with a discretionary warrant. | 226 |
| November 29, 2024 | Defence appeared to place the pre-trial motion dates and trial dates on the record. The court set a Stage 1 motion date of February 5, 2025 a second motion date of March 25, 2025 and trial dates of July 3 and 4, 2025. | 240 |
| December 27, 2024 | Defence provided a written notice of election. The February 5, 2025 Stage 1 date, March 25, 2025 Stage 2 date, and July 3–4, 2025 trial dates were confirmed. The matter was adjourned to February 5, 2025. | 268 |
| February 5, 2025 | The Stage 1 s. 278 application was scheduled. Defence advised that the application concerned possible LeoList screenshots, but that there was no indication the record existed. Defence abandoned the application. The matter was adjourned to the July 3, 2025 trial date. | 308 |
| July 3, 2025 | The matter was scheduled for trial. The assigned judge was continuing another trial. Counsel advised that issues had arisen concerning whether certain material required a s. 276 direction or application, and that the two-day estimate might need revision. The matter was traversed to Justice Caponecchia for a JPT. After the JPT, Justice Caponecchia placed on the record that the original two-day estimate was no longer adequate. The court recorded that an additional Crown witness was required concerning the BB gun, that the defence had an additional witness, that Kinamore required the Crown to bring an application concerning evidence touching on prior sexual activity, and that defence evidence might also require directions or a s. 276 application. The revised estimates were at least half a day for Stage 1, a full day for Stage 2, and five days for trial. The matter did not proceed and was adjourned to July 17, 2025, for new dates. | 456 |
| July 11, 2025 | A trial scheduling meeting was held. New trial dates of July 27-31, 2026 were obtained, but pre-trial motion dates could not then be fixed because the judicial calendar for summer 2026 was not yet available. | 464 |
| July 17, 2025 | Defence advised the court that trial dates had been set for July 27-31, 2026. Defence also advised that there would be pre-trial motions, including s. 276 Stage 1 and Stage 2, and an intended s. 11(b) application. Defence indicated that the trial coordinator had advised that the judicial schedule for July 2026 was not yet available for pre-trial motion scheduling, and that a further scheduling meeting would be required around August. The matter was adjourned to September 17, 2025, to secure pre-trial motion dates. | 470 |
| September 9, 2025 | Defence attended a further trial scheduling conference. The assigned judge for the July 2026 trial dates had limited availability to hear the necessary pre-trial motions, and the trial coordinator determined that the July 27–31, 2026 trial dates would need to be vacated and replaced. Instead, trial dates of October 5-8 and October 26, 2026 were secured. | 524 |
| September 17, 2025 | Defence placed the scheduling issue on the record. Defence advised that the July 27–31, 2026 trial dates had been set after the July 11, 2025 meeting, but that the September 9, 2025 scheduling conference disclosed limited judicial availability for the necessary pre-trial motions. The July 27–31, 2026 trial dates were vacated. The matter was adjourned to October 8, 2025, to put new trial dates on the record. Various motion dates were later put on the record, after a series of non-appearances by defence counsel on October 8, 22, and December 17th. None of these non-appearances affected the ultimate end date of the trial, which remained as scheduled on September 9, 2025. | 532 |
| June 5, 2026 | Section 11(b) Charter application. | 793 |
| July 10, 2026 | Stage 1 of prior sexual activity application. | 828 |
| August 21, 2026 | Stage 2 of prior sexual activity application. | 870 |
| October 5–8, 2026 | Days one through four of the trial. | 915–918 |
| October 26, 2026 | Day five, and the anticipated end of the trial. | 936 |
LEGAL FRAMEWORK
6Section 11(b) of the Charter guarantees the right of any person charged with an offence to be tried within a reasonable time. In Jordan 2016 SCC 27 the Supreme Court of Canada established presumptive ceilings; in this Court that ceiling is 18 months.
7No person can or should benefit from delay that is caused exclusively by them. Thus, the ceiling is measured against the net delay in a case. That net delay is the total delay in the case minus any delay caused by the defence.
8If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The burden then shifts to the Crown to justify the delay by establishing exceptional circumstances. Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases. A discrete event must be reasonably unforeseen or reasonably unavoidable, and the Crown must show that it took reasonable steps to avoid and address the delay once the event arose.
9With those principles in mind, I turn to the periods of alleged defence delay advanced by the Crown.
DEFENCE DELAY
10Before embarking on an analysis of the different periods of defence delay relied upon by the Crown, it is important to define what does and does not qualify as defence delay. As the Supreme Court recently said in Jacques-Taylor 2026 SCC 20:
A period of delay will also be attributable to the defence where the defence is the sole or direct cause of that delay (Jordan, at para. 66). This is often referred to as "defence delay". Defence delay includes any period of delay that results from conduct that is undertaken for an illegitimate or unjustifiable purpose, such as dilatory tactics and frivolous applications (Jordan, at para. 63; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28). It also includes delays that are occasioned by the defence's unavailability where both the Crown and the court were ready to proceed (Jordan, at para. 64).
11Delay that is not caused ‘solely’ by the defence, but to which it has contributed, may be apportioned between the Crown and the defence where it is fair and reasonable to do so under the circumstances: Jacques-Taylor at para. 31.
12Defence delay, however, does not include delays that are the result of conduct that is both legitimate and reasonable under the circumstances: Jacques-Taylor at para. 30. This kind of delay is already accounted for by the Jordan ceilings and must not be ‘double counted’ by subtracting it as defence delay: Vrbanic 2026 SCC 19 at para. 31.
13Ultimately, the assessment of defence delay is context-driven. The Supreme Court has instructed trial judges to “rely upon their common sense, experience, and knowledge of their own jurisdiction in making these determination”: Jacques-Taylor at para. 32.
14It is with that in mind that I move on to assessing each of the periods relied upon by the Crown.
i. The Counsel-Retainer Period (April 3 to May 20,2024)
15The Crown submits that some portion of the period between the swearing of the Information and the first case management appearance should be attributed to the defence because counsel was not formally on the record until May 10, 2024.
16Defence – neither counsel, nor the accused personally – was the cause of none of the delay. I decline to attribute any of it to the defence.
17Mr. Saunders-White retained counsel prior to his first case management court appearance, less than 3 weeks after being charged. Retained counsel wrote to the Crown advising them of that and requested disclosure on April 23rd. This is about as diligent as the Court could hope that an accused person acts prior to their first appearance: retaining counsel and engaging with the Crown to request disclosure.
18In contrast, the Crown was not ready to proceed in any meaningful way on May 10. Initial disclosure was not ready at all. It was still being vetted.
19This is not a case where the accused’s failure to retain counsel stalled the matter. Defence counsel moved promptly. A disclosure request was made well in advance of the first appearance. The impediment to progress was that disclosure was not ready. I therefore decline to deduct any portion of this period as defence delay.
ii. The Pre-JPT Period: May 10 to September 11, 2024
20The Crown next submits that delay in the period between the May 10 first appearance and the September 11 JPT should be attributed, at least in part, to the defence.
21I again decline to attribute this delay to the defence.
22The most basic disclosure in this sexual assault prosecution, the complainant’s video statement, was not disclosed until at least August 26, 2024. That was more than four and a half months after the Information was sworn. In the context of a sexual assault prosecution, the complainant’s police statement is a critical piece of disclosure. It is foundational to the defence’s ability to understand the case, provide meaningful advice, identify live issues, assess possible applications, and participate usefully in a CPT or JPT.
23I have been pointed to nothing that justifies such a lengthy delay in providing that disclosure. Without that statement, there could be no meaningful discussion at a CPT or JPT about moving the matter forward in a realistic way.
24It is true that even in the face of missing disclosure, defence cannot sit idle. Defence is expected to be able to walk and chew gum at the same time. They are expected to pursue outstanding disclosure while also moving the case forward in concert with the Crown.
25But, contrary to the suggestion of the Crown, the record in this case shows defence counsel doing just that. They engaged with the Crown about that missing disclosure and scheduled a CPT. They later scheduled the JPT prior to receiving the complainant’s statement. They did not appear in Court appearance after appearance complaining about disclosure while failing to move the matter forward. They did what was expected of them.
26In addition, it bears repeating that it is difficult if not impossible to have any meaningful discussions on a prosecution like this one in the complete absence of the complainant’s statement.
27In my view, the delay during this period is not attributable to the defence. It falls at the feet of the Crown for failing to make timely disclosure.
iii. Defence s. 278 Litigation – the Abandoned Application
28The Crown asks that I consider as a contextual factor that defence counsel scheduled a s. 278 application but ultimately abandoned it. They do not ask for a numerical deduction of time but instead ask that I consider it in the broader analysis of defence delay.
29It is true that the defence scheduled an application to secure third-party records in this case. They say they did so because of uncertainty about whether these records existed. And, when they confirmed that they did not, they abandoned the application.
30In my view, this does not assist with either a numerical deduction or the contextual analysis. It does not support a numerical deduction because of how motion dates are scheduled in Brampton. These dates are scheduled backwards from the trial dates that are ultimately secured. For a routine motion like this, there is no suggestion that this caused any delay. The motions were not complex or numerous enough to require the trial to be scheduled far into the future. It is likely for that reason that the Crown does not rely upon these abandoned motions for a numerical deduction.
31I also have an insufficient evidentiary record to factor these abandoned motions into the contextual analysis. If at the time the motions were scheduled there was uncertainty about whether these records exist, scheduling the motions was a prudent action. If the records turned out to exist, this course of action would have likely avoided delay. And, once it was confirmed these records did not exist, abandoning the motion was the only course of action to be taken.
32Legitimate actions taken by the defence to defend the charges are already accounted for in the Jordan ceilings. In my view, this was one of those actions. In any event, it did not cause any delay.
iv. The July 3, 2025 Trial Adjournment
33The central dispute on this application concerns the loss of the July 3 and 4, 2025 trial dates. After all, despite the disclosure history in the early case management stages, those initial trial dates were Jordan-compliant. The impetus for this application is their adjournment, and what took place after that adjournment.
34The Crown submits that the collapse of those trial dates was driven by defence positions: the refusal to admit that the BB gun was a firearm or prohibited weapon, the existence of a defence witness, and the need for litigation concerning prior sexual activity evidence. The Crown therefore asks the court to apportion a substantial amount of the cascading delay to the defence.
35I do not accept that submission, although I do find that it is fair and appropriate to allocate a portion of the delay caused by the adjournment to the defence – just not as much as sought by the Crown.
36The Crown was prosecuting a point-firearm charge involving a BB gun. It was for the Crown to determine, before trial, how it intended to prove the statutory character of the object and how it intended to prove the connection between the object and the accused. The defence had not admitted that the BB gun was a firearm or prohibited weapon. That was clear from the JPT form. The Crown could not reasonably proceed on the assumption that this essential element would be conceded. If there was any ambiguity about the scope of that admission, it should have been resolved by the Crown engaging prior to the day of trial with defence counsel on the issue.
37Similarly, if the Crown intended to lead evidence touching on prior sexual activity, it was for the Crown to turn its mind to the proper evidentiary route in advance of trial. The release of Kinamore 2025 SCC 19 may have clarified or sharpened the issue, but it did not transform Crown trial preparation into defence delay.
38While I accept there were varied degrees of compliance with Barton 2019 SCC 33 and Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at the time, the law was clear that the Crown needed to apply to adduce prior sexual history evidence. That is evidenced by the pre-Kinamore Ontario Court of Justice JPT form. That form, which was completed in this matter, had a box to check off that there would be a “Crown application to lead evidence of other sexual activity – R. v. Barton; R. v. Seaboyer”. The box is not checked.
39Kinamore was also released almost three weeks in advance of the trial date. There is no evidence before me of the Crown taking steps to bring this application or address the issue prior to it being raised on the day of trial.
40Justice Caponecchia’s comments on July 3, 2025, show that the case could not proceed as scheduled. The Crown needed an additional witness concerning the BB gun. The Crown also needed to bring an application concerning evidence touching on prior sexual activity. The time estimate changed from two days to at least half a day for Stage 1, a full day for Stage 2, and five days for trial.
41However, the defence also had an additional witness and some defence evidence might require directions or a s. 276 application. Defence was also not ready to proceed. Accordingly, I find that the cause of the adjournment was a joint one. I intend on apportioning some of the delay to defence. In my view, it would be fair and reasonable to do so (Jacques-Taylor at para. 31, Boulanger 2022 SCC 2 at para. 10.)
42The question though is where fault lies for the delay – not just the adjournment. The cause of the adjournment is part of that inquiry, but it is not the only part. This trial was adjourned and then originally rescheduled more than 1 year from the original trial date, in clear Jordan jeopardy. This is unacceptable. Sooner dates should have been offered. If they were not by the trial coordinator, the Crown should have taken steps to bring this to the attention of a judge for further case management. Instead, dates that fell clearly outside of the Jordan ceilings were offered and acquiesced to.
43In these circumstances, I find that it is fair and appropriate to split this delay in half: 50% to the causes of the adjournment, to be allocated between the parties and 50% to the unacceptably long time that it took to reschedule the trial. I further split the 50% of delay allocated to the causes of the adjournment equally between the parties, resulting in a total split of 75/25.
44For clarity, I allocate 25% of the delay from what was to be the end of the first trial (July 4, 2025) to what was to be the end of the originally scheduled second trial date (July 31, 2025) to the defence. The remaining 75% of the delay is allocated to the Crown for their part in the adjournment as well as for the failure to prioritize and mitigate an offered second trial date that fell well outside of the Jordan ceilings.
45I deduct 98 days as defence delay.
v. Defence Unavailability for Motion Dates
46The Crown submits that defence counsel’s unavailability for three sets of motion dates offered before the July 2026 trial dates should result in a defence-delay deduction. They ask that I deduct ‘at minimum’ 30 days for this unavailability.
47I accept that defence counsel was unavailable for the specific motion dates that were offered. Three sets of pre-trial motion dates were offered to defence counsel – January 27, March 27, and May 11-12, all in 2026. Counsel was unavailable for each of these.
48As I have already indicated, motions in Brampton are scheduled by working back from the selected trial date. The defence unavailability for discrete motion dates did not affect the scheduled end date of the July 2026 trial. However, it did cause the adjournment of the trial.
49While on its face the July 2026 trial was rescheduled because of a lack of judicial unavailability for pre-trial motions, that is not entirely the case. Multiple pre-trial motion dates had been offered to defence counsel for which they were not available. It is true that defence need not hold themselves in a state of perpetual availability. However, in my view, the declining of 3 sets of pre-trial motion dates causes this delay to fall at the feet of defence.
50The adjournment of that trial caused an additional 87 days of delay. I would go beyond what the Crown seeks and allocate all of that 87-day delay to defence. Their unavailability for three pre-trial motion dates was the direct cause of the adjournment
vi. Failure to Invoke the Backlog Reduction Court
51The Crown also relies on the defence’s failure to invoke the Backlog Reduction Court. The objective of this time-limited initiative was to “identify cases for which delay is an issue, and endeavour to offer earlier dates for trial.” There is no suggestion that this matter was one of those cases so identified.
52The initial trial dates were Jordan-compliant. They were scheduled to conclude within the presumptive ceiling. During the period when the Backlog Reduction Court was operating in Brampton, there was no reason for the defence to invoke that court. The case already had trial dates within Jordan. The Jordan problem arose later, after the original trial dates were lost. I would add, there is no evidence of the Crown invoking that Court or taking steps to bring the matter forward to re-canvas dates.
53The defence cannot be faulted for failing in January 2025 to seek earlier dates when the dates already secured were compliant with Jordan. I therefore place no weight on the failure to invoke the Backlog Reduction Court.
vii. Late Assertion of Section 11(b) Rights
54The Crown abandoned this argument during submissions. I agree that it was properly abandoned. But because it was raised, I will nonetheless address it.
55The transcripts make clear that the defence indicated its intention to bring an 11(b) application when the rescheduled trial date was confirmed. On July 17, 2025, defence advised the court that there would be pre-trial motions, including a s. 276 Stage 1 and Stage 2 application, and an intended s. 11(b) application. The defence then took steps to schedule that application. Those steps were taken more than a year before the trial was scheduled to end.
56This is not a case where the defence remained silent in the face of a known Jordan problem and thereby deprived the Crown of an opportunity to mitigate. The defence raised the issue when the rescheduled dates created the delay problem. The Crown and the Court had more than a year of notice that defence was bringing this application. And yet, no meaningful steps were taken to address the issue.
57There is no basis to attribute any delay to the defence under this heading.
EXCEPTIONAL CIRCUMSTANCES
i. Discrete Event – Judicial Availability
58The Crown submits, in the alternative, that delay should be deducted as a discrete exceptional circumstance because of the July 2026 trial judge’s limited availability for pre-trial motion dates. However, I decline to do so, as that would amount to ‘double-counting’ this delay.
59I have already allocated all the delay caused by the adjournment of the July 2026 trial to defence. I therefore decline to deduct any time on this basis.
ii. Case Complexity
60The Crown also submits that this case is particularly complex and that any remaining above-ceiling delay is justified on that basis. With respect, I do not accept that submission.
61This case involves serious allegations, including sexual assault and a point-firearm charge. It also involves pre-trial litigation relating to prior sexual activity evidence. Those features require careful case management, but they do not make the case particularly complex in the Jordan sense.
62The trial estimate is now five days, with two pre-trial application dates. There is no voluminous disclosure, no large number of witnesses, no extensive expert evidence, no unusually long period of alleged offending, and no unusually complicated legal or factual matrix. The procedural requirements of ss. 276 and 278 are important, but they are not, without more, sufficient to transform this prosecution into a particularly complex case justifying a delay of this magnitude.
63In any event, even if I had found the case to be complex, I would not have found the delay justified. The net delay in this case is 25 months – 7 months over the Jordan ceiling. The complexity relied upon by the Crown would not have justified this delay.
64The Crown must still show that it took reasonable steps to mitigate delay. Here, the delay was driven by late disclosure, the parties’ non-readiness for the original trial dates, and – most prominently – the unacceptably lengthy period between the adjourned and rescheduled trials. The Crown has not shown sufficient effort to mitigate the resulting delay.
CONCLUSION
65The total delay is 936 days. From that, I deduct 98 days for the defence contribution to the adjournment of the first trial, and a further 87 days for their unavailability for the pre-trial motion dates. I decline to deduct any of the remaining time advanced by the Crown. This leads to a net delay of 751 days – or 25 months, well above the 18-month presumptive ceiling.
66The Crown has not rebutted the presumption of unreasonable delay. Neither discrete events nor case complexity justify this delay.
67The applicant’s right to be tried within a reasonable time under s. 11(b) of the Charter has been infringed. Accordingly, and unfortunately, given the seriousness of the charges faced by Mr. Saunders-White, the only remedy allowed for at law is a stay of proceedings.
68The application is granted. The proceedings are stayed.
Released: June 16, 2026
Signed: Justice F. A. McCracken