ONTARIO COURT OF JUSTICE

CITATION: Durham (Regional Municipality) v. Sivaguru, 2026 ONCJ 418

DATE: 2026 07 13

COURT FILE No. 2860 999 00 5593191Z

BETWEEN:

Durham (Regional Municipality)

— AND —

Niss SIVAGURU

Before Justice of the Peace Kevin J.A. Hunter

Heard on June 26, 2026

Reasons for Judgment released on July 13, 2026

M. TADROS for the Applicant

J. FERAN for the Respondent

JUSTICE OF THE PEACE HUNTER:

I. INTRODUCTION

1The applicant, Niss SIVAGURU, seeks a stay of proceedings pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms (the Charter), alleging a violation of his right to be tried within a reasonable time.

2I heard the application on June 26, 2026. At the conclusion of the hearing, I dismissed the application with reasons to follow. These are my reasons.

II. FACTS

3The relevant chronology is not in dispute:

• January 19, 2024: The applicant was issued a certificate of offence for a Highway Traffic Act infraction.
• January 22, 2024: The certificate of offence was filed with the court.
• The applicant chose to participate in the early resolution process.
• February 7, 2025: An early resolution meeting was held. No resolution was reached and the applicant requested a trial.
• April 3, 2025: First trial, the applicant was acquitted.
• January 28, 2026: The respondent’s appeal was allowed, and a new trial was ordered.
• March 23, 2026: Second trial. The applicant failed to attend and was deemed not to dispute pursuant to s. 9.1 of the Provincial Offences Act (POA), resulting in a conviction.
• March 26, 2026: The applicant's reopening request was granted. The conviction was set aside, and a new trial was ordered.
• June 26, 2026: Third trial. This application was heard.

III. ISSUE

4The issue before me is whether the applicant's right to be tried within a reasonable time, guaranteed by s. 11(b) of the Charter, has been infringed.

5Determining that issue requires consideration of the following questions:

1. What effect, if any, does the applicant's participation in the early resolution process have on the delay analysis?

2. What effect do the applicant's acquittal and the respondent's successful appeal have on the delay analysis?

3. What effect does the applicant's failure to attend the retrial, and the subsequent reopening of the proceeding, have on the delay analysis?

6In the end, the answer to the third question is determinative of the application. Nevertheless, I will address the first two questions to respond to the parties' submissions and to clarify the legal significance of each distinct period of delay.

IV. THE LAW

7The governing framework for applications under s. 11(b) of the Charter was established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

8For matters in the Ontario Court of Justice, the Jordan framework requires the court to:

• Calculate the total delay, being the period from the laying of the charge to the actual or anticipated end of the trial.
• Subtract any defence delay from the total delay to determine the net delay.
• Compare the net delay to the applicable 18-month presumptive ceiling.
• If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable and the prosecution bears the burden of establishing exceptional circumstances.
• Where applicable, deduct delay attributable to discrete exceptional events and determine the resulting remaining delay.
• If the remaining delay still exceeds the presumptive ceiling, determine whether the case was particularly complex such that the additional delay is justified.
• If the prosecution fails to establish exceptional circumstances sufficient to justify the delay, a stay of proceedings will follow.
• If the remaining delay falls below the presumptive ceiling, the burden shifts to the defence to establish that the delay is nevertheless unreasonable.

V. POSITIONS OF THE PARTIES

9The applicant submits that the relevant period of delay runs from January 19, 2024, the date of the offence, to June 26, 2026, the date of the third trial. On that basis, the total delay is approximately 29¼ months.

10The applicant does not meaningfully address the impact of having elected to engage in the early resolution process. He does, however, acknowledge that he failed to attend his second trial date. The applicant maintains that his absence was through no fault of his own. Thus, the applicant submits that no portion of the total delay is attributable to him. In his view, the total delay and the net delay are therefore the same. As that delay exceeds the 18-month ceiling established in Jordan, the applicant argues that it is presumptively unreasonable.

11The applicant’s analysis treats the proceeding as a single, continuous process from the date of the offence to the third trial date. In my view, that approach fails to account for several procedural developments that altered the applicant's status for the purposes of s. 11(b).

12The respondent advances a substantially different position. It submits that the relevant s.11(b) period commenced on January 28, 2026, when the appeal court ordered a new trial, and concluded on June 26, 2026, the date of the third trial. On this approach, any time that elapsed before the retrial order should be excluded from the Jordan calculation. The total delay is therefore slightly less than 5 months.

13The respondent further submits that the period from March 23, 2026, to June 26, 2026, should be characterized as defence delay. In its view, the applicant’s failure to attend the retrial was the direct cause of the matter being reopened and a third trial date being scheduled. This approximately 3-month period should be deducted from the total 5-month delay for a net delay of approximately 2 months.

14While the respondent’s position comes closer to the mark, neither party’s approach fully aligns with the applicable jurisprudence. In my view, the delay analysis is best undertaken by examining each distinct phase of the proceeding separately, assessing whether s. 11(b) was engaged during that phase and, where it was, the extent to which the time elapsed forms part of the constitutional delay analysis.

VI. ANALYSIS

15The analysis begins with the text of s. 11(b) of the Charter itself. The constitutional guarantee applies only to a "person charged with an offence."

16In a proceeding under Part I of the POA, a person becomes “charged with an offence” when the certificate of offence is filed with the court, not, as the applicant submits, when the alleged offence occurs.

17The certificate of offence in this matter was filed on January 22, 2024. Accordingly, the applicant became a person charged with an offence on that date for the purposes of s. 11(b). The significance of that date, and whether it represents the commencement of the delay period to be assessed under the Jordan framework in the procedural circumstances of this application, is considered below.

The Effect of the Early Resolution Process

18Once the proceeding commenced, the applicant had three available courses of action: pay the ticket, request a trial, or participate in an early resolution meeting.

19The applicant chose to pursue early resolution. An early resolution meeting was ultimately conducted on February 7, 2025. No resolution was achieved at that meeting, and only then did the applicant request a trial.

20In my view, the applicant’s initial decision to pursue early resolution, rather requesting a trial, bears directly on the extent to which the resulting delay may be relied upon in support of a claim under s. 11(b). The delay associated with the early resolution process was the foreseeable result of a procedural option voluntarily chosen by the applicant. By electing that process, the applicant effectively waived any reliance on the time reasonably required to complete it for the purpose of advancing a claim of unreasonable delay in eventually bringing his matter to trial.

21This conclusion finds support in the decision of Puddington J. in R. v. Grewal, 2025 ONCJ 600. At para. 16, the court stated:

Section 11(b) of the Charter protects a trial within a reasonable time. If the accused is looking to resolve the matter, they are not at that point pursuing a trial. They are on a different path – a path that is not covered by the section 11(b) right to a trial within a reasonable time. A person issued a certificate of an offence is presented with a choice. They can choose to have a trial, or they can choose to try and resolve the matter. In Mr. Grewal’s case, he chose to try and resolve the matter, and therefore he should be seen to have waived his time to a trial up and until he changed his mind and wanted a trial.

22Not only do I agree with that reasoning, but Grewal is a decision of the POA appeal court and is therefore binding upon me. Hence, the period from January 22, 2024, to February 7, 2025, would likely constitute defence delay and be deducted from the total delay under the Jordan framework. As discussed below, however, subsequent events render any determination of that issue unnecessary because the Jordan clock applicable to this application did not begin to run until a later date.

The Effect of the Acquittal and Successful Appeal

23Following the unsuccessful early resolution meeting, the matter proceeded to trial on April 3, 2025, at which the applicant was acquitted. On January 28, 2026, the respondent successfully appealed the acquittal, and a new trial was ordered.

24The applicant submits that the nearly 9-month period during which the respondent's appeal was pending should be included in the s. 11(b) delay calculation. I do not agree.

25This issue was conclusively addressed by the Supreme Court of Canada in R. v. J.F., 2022 SCC 17. Although J.F. arose in the criminal context, the analysis turns on the meaning of the phrase "person charged with an offence" in s. 11(b) of the Charter and is therefore equally applicable in proceedings under the POA. Writing for the majority, Wagner C.J. stated at paras. 23-24:

Section 11(b) protects an accused only while they have the status of a person charged with an offence (R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 908). The term “person charged with an offence” has been interpreted broadly by this Court and refers to a person who is the subject of criminal proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at paras. 11‑13). A person is charged with an offence from the time the charge is laid (R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1602; Potvin, at p. 910) until the final resolution of the matter and the end of the sentencing process (MacDougall, at paras. 10 and 17‑18; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at paras. 26‑27). On appeal, an accused is no longer a person charged with an offence (Potvin, at pp. 911‑12; MacDougall, at para. 17). The accused reverts to this status only if the trial decision is set aside and a new trial is ordered (Potvin, at p. 912).

While s. 11(b) protects an accused throughout the period when they have the status of a person charged with an offence, the framework established in Jordan has a limited temporal scope. The presumptive ceilings apply only to delay in holding the trial.

26The court made clear that a person ceases to be "charged with an offence" once the matter is adjudicated. Equally important, the court held that a person does not regain that status merely because an appeal is ongoing. A person regains that status only if the original disposition is overturned and a new trial is ordered.

27The court further confirmed, at para. 60, that where a new trial is ordered, the constitutional clock is reset:

When a new trial is ordered, the constitutional clock for calculating delay is reset to zero (Gakmakge v. R., 2017 QCCS 3279; JEV, at para. 37; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415, at para. 91). It follows that only the retrial delay can be counted when a s. 11(b) application is brought in that new trial.

28Applying J.F. to the present case is straightforward. The applicant's acquittal on April 3, 2025, brought the original proceeding to an end. As a result, he ceased to be a person charged with an offence and the first period during which s. 11(b) was engaged ended.

29The applicant regained the status of a person charged with an offence only when the appeal court set aside the acquittal and ordered a new trial on January 28, 2026. That order initiated a new s. 11(b) period and reset the Jordan clock to zero.

The Effect of the Reopening Order

30While the preceding issues were the primary focus of the parties' submissions, they are not ultimately dispositive. In my view, this application turns on the legal effect of the reopening order granted on March 26, 2026.

31The applicant’s retrial was scheduled for March 23, 2026. He failed to attend and was convicted in his absence. Three days later, he successfully applied to reopen the proceeding pursuant to s. 11 of the POA. The conviction was set aside, and a new trial was ordered.

32The respondent submits that any delay accruing after March 23, 2026, should be characterized as defence delay because it was the applicant's non-attendance that necessitated the reopening process. I do not share that view.

33The applicant correctly points out that the reopening could only have been granted if the justice considering the application was satisfied that the applicant failed to appear for trial through no fault of his own. The fact that the application was granted necessarily implies that the justice was so satisfied. Had the justice concluded that the applicant bore responsibility for his failure to attend, the application ought to have been denied.

34While that submission might appear to advance the applicant's position, it ultimately does not. The issue is not the basis upon which the reopening application was granted, but the legal consequence that flowed from it.

[35[ Pursuant to the appeal court’s order for a new trial, the matter was rescheduled and subsequently adjudicated. The applicant later invoked the statutory reopening procedure, successfully set aside the resulting disposition, and secured an order for a further new trial.

36If that sequence appears familiar, it is because it closely resembles the procedural history considered in J.F. As discussed above, the original adjudication in that case was successfully challenged, set aside, and replaced with an order for a new trial.

37The only material difference is the mechanism by which the matter was returned to the trial process. In J.F., that occurred through a successful appeal; here, it occurred through a successful reopening application. In both cases, however, the existing adjudication was set aside and a new trial ordered. The underlying principle is therefore the same notwithstanding the different procedural routes by which that result was achieved.

38A similar approach was adopted by Szenes J.P. in Toronto (City) v. Agrippa, 2025 ONCJ 46. Considering the effect of a successful reopening in a s. 11(b) application, the court wrote at para. 16:

For the purpose of this application, there is no difference between a person who is party to an appeal or party to a reopening application to have the decision overturned. The Applicant’s reopening was granted which corrected whatever issue led to the defendant being convicted and placed him back before the court with an opportunity to address the allegations, just as it would have following a successful appeal against conviction.

39I agree with that conclusion. Whether a proceeding is revived through a successful appeal or a successful reopening application, the legal effect is the same. The existing disposition is set aside, the proceeding is restored to the trial process, and a new trial is directed. For the purposes of determining whether a person is a "person charged with an offence" under s. 11(b), the distinction between the two mechanisms is immaterial.

40Accepting that premise, however, carries a further consequence. If a successful reopening is analogous to a successful appeal for the purposes of J.F., then the methodology prescribed in J.F. for calculating delay must also apply. It is in that limited respect that I respectfully depart from the analysis offered in Agrippa.

41The Supreme Court held in J.F. that where a disposition is set aside and a new trial ordered, the constitutional clock is reset to zero and only the retrial delay is counted for the purposes of a subsequent s. 11(b) application. In my view, that principle applies equally where the new trial results from a successful reopening application. Nothing in the reasoning of J.F. suggests that the restart of the constitutional clock depends upon the procedural mechanism through which the prior disposition is set aside.

42It follows that the applicant ceased to be a person charged with an offence when he was convicted on March 23, 2026, and regained that status only when the conviction was set aside and a new trial ordered on March 26, 2026. For the purposes of the present application, J.F. requires that the delay calculation begin with the date of the reopening order.

43The relevant period, then, began on March 26, 2026, when the reopening was granted and a new trial ordered. It ended on June 26, 2026, when this application was heard. No other time periods require consideration. The total and net delay are therefore the same - 3 months.

VII. CONCLUSION

44The applicant was a person charged with an offence from January 22, 2024, when the certificate of offence was filed, until his acquittal on April 3, 2025, subject to the effect of his election to participate in early resolution. Upon his acquittal, the applicant’s s. 11(b) right came to an end.

45That right was revived when the appeal court set aside the acquittal and ordered a new trial. The applicant’s s. 11(b) right was once again extinguished when the retrial resulted in a conviction. Once that conviction was set aside and a reopening granted the applicant a new trial, he once again became a person charged with an offence and the Jordan clock restarted afresh.

46J.F. requires that only the delay accruing after the reopening order be considered for the purposes of the present application. That period is approximately 3 months, well below the 18-month presumptive ceiling established in Jordan, and it is not unreasonable. The applicant has failed to establish a breach of s. 11(b) of the Charter, and the application is dismissed.