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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
RAGHEED AJAJ
Before Justice F. A. McCracken
Heard on June 8, 2026
Reasons for Judgment released on July 22, 2026
Counsel: M. Lippa, counsel for the Crown D. Pak, counsel for the defendant Ragheed Ajaj
1Ragheed Ajaj alleges that his right to be tried within a reasonable time has been infringed. He applies for a stay of proceedings.
2Mr. Ajaj is charged with one count of distributing an intimate image contrary to s. 162.1(1) of the Criminal Code. The information was sworn on December 4, 2024. His trial is scheduled for January 4 and 5, 2027. The total delay in the matter is 762 days.
3On behalf of Mr. Ajaj, defence counsel submits that none of the delay in this matter is attributable to the defence or exceptional circumstances. Accordingly, since the net delay exceeds the presumptive ceiling established in R. v. Jordan 2016 SCC 27, a stay must be granted.
4The Crown disagrees. They submit that 341 days of delay are attributable to the defence, with the resulting net delay falling below the presumptive ceiling.
5For the reasons that follow, I conclude that 191 days are attributable to the defence. The resulting net delay is 571 days, or approximately 19 months. The net delay therefore exceeds the presumptive ceiling. The Crown concedes that if the delay exceeds the ceiling, there are no exceptional circumstances upon which it relies to justify the excess delay. Accordingly, the application succeeds.
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 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. They do not seek to do so in this case, and so there is no need to review the law that applies to that burden.
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 determinations”: Jacques-Taylor at para. 32.
14These reasons will outline the chronology of the case as viewed through the lens of the five periods of delay that are in issue on this application.
ANALYSIS
Period 1: April 25 to June 13, 2025
15Mr. Ajaj first appeared in court on December 6, 2024. Initial disclosure was not yet ready. The matter was adjourned for disclosure and for Mr. Ajaj to apply for legal aid. Disclosure was ready at his next appearance. The matter was then adjourned six times until counsel appeared on his behalf on June 20, 2025.
16The Crown says that the period up until April 25, which was Mr. Ajaj’s 5th appearance, was more than enough time for him to retain counsel. They submit that the time between April 25 and June 13, when initial disclosure was requested by counsel, should be deducted as defence-caused delay.
17In response, Mr. Ajaj argues that because further disclosure was outstanding, along with a s. 278.2(3) records notice, that the Crown was not ready to proceed. Accordingly, they suggest that this is not truly defence-caused delay.
18I reject this submission and accept the position advanced by the Crown. One of the functions of defence counsel is to assist with resolving outstanding disclosure issues. Had counsel been retained earlier, I am satisfied that the remaining disclosure issues would have – or should have - been resolved sooner. It is clear from the transcript of the court appearances that the cause of delay was Mr. Ajaj’s failure to take timely steps to apply for legal aid and then ultimately select counsel.
19These 49 days are attributable to Mr. Ajaj as delay caused by him.
Period 2: June 14, 2025 to September 5, 2025
20Once counsel was retained the matter was adjourned several times for what counsel asserted was outstanding disclosure. The Crown asserts these adjournments were unnecessary. They say that defence is responsible for the delay up until they had a CPT on September 5 to try to resolve these disclosure issues.
21On June 20, counsel appeared and advised that they received initial disclosure a week prior, had reviewed it, and had sent a detailed disclosure request the previous day. The Crown asked for the matter to return on July 21st and indicated that counsel should take steps to move the matter along “schedule a CPT, JPT, if necessary […]” Counsel took the position that they need disclosure before “they can have a meaningful CPT”.
22The matter returned on July 21. Counsel advised that they had requested disclosure on June 19 – the day before the previous appearance – and had yet to hear back. They asked for a four-week adjournment to review the disclosure and schedule a CPT. The Crown took the position that “quite a lot of disclosure has been given”, that they could not sort out disclosure issues in set date court, and asked counsel to contact an R11 Crown over the next week if there was something defence counsel felt prevented the matter from moving forward. Defence counsel responded “[o]kay.” The matter was adjourned to August 18.
23No CPT – R1 or otherwise - was held in the interim. Instead, counsel attended at that appearance and referenced the same June 19 letter. They asserted they still had not received any meaningful disclosure. They asked for an adjournment for four weeks to review disclosure and schedule a CPT. The Crown took the position that disclosure had been shared with counsel and that a CPT should be conducted. The presiding justice of the peace advised counsel to have a CPT and adjourned the matter to September 15.
24That R1 CPT was finally held on September 5.
25On September 11, the Crown who conducted the R1 CPT email counsel indicating that some items had been disclosed but asserted that the bulk of what counsel was requesting had already been provided.
26Whether or not disclosure issues remained, the September 11 email demonstrated the effect that a CPT, R1 or otherwise, can have on moving a file forward. More was done to resolve issues on this file in a week than had been done in months.
27The practice of counsel complaining about disclosure in set date court while doing nothing to engage with the Crown to resolve the issue should come to an end. In a busy set date court, it does nothing but serve to pad an 11(b) application record. It is consistent with the “culture of complacency” denigrated in Jordan.
28That practice is what took place here. Counsel failed to engage meaningfully with the Crown to resolve outstanding disclosure issues. That failure caused the delay.
29My finding on this point is amplified by what took place after counsel did meet with the Crown. Within a week of the CPT, counsel had the Crown’s position on each of their requested items of disclosure. Of the 15 items requested, 9 had already been disclosed. A JPT was ready to be confirmed at the next appearance.
30I decline, however, to deduct all the time initially sought by the Crown. Counsel only received initial disclosure on June 13. They were owed a reasonable amount of time to review that disclosure before taking steps to move the matter forward. In my view, in a case of this nature, counsel should have been able to schedule a CPT – either to discuss resolution, a trial, or any outstanding disclosure issues – within 2 weeks of receipt of that disclosure. Crown counsel conceded as much in oral submissions.
31Accordingly, I deduct the period from June 28 to September 5, 2025 – or 69 days – as defence delay.
Period 3: October 23, 2025 to December 12, 2025
32A judicial pre-trial was conducted on October 23, 2025. Following that pre-trial the matter was adjourned for the Crown to seek the complainant’s input on a proposed resolution. The Crown asserts that the defence could have set a trial date after the judicial pre-trial and should have done so. They submit that the failure to do so resulted in defence-caused delay.
33While the applicant agrees there are circumstances that can be attributed to defence for resolution discussions, they argue that this is not one of them. They say that the Crown should have contacted the complainant earlier in the process for input.
34I agree with the Crown’s submission on this issue. In doing so, I find that this case is akin to the unreported decision of R. v. O’Leary (April 28, 2026), Brampton, Central West (ONCJ) (unreported). In that decision, Justice Dellandrea wrote at para 31:
"Where a matter is trial-ready following a JPT, counsel are expected to act with reasonable promptness to secure trial dates. A failure to do so constitutes defence-caused delay within the meaning of Cody."
35Here, trial scheduling could have been canvassed at the first JPT, and a date could have been set immediately following. Consistent with the Jordan-Compliant Scheduling Directive of the Ontario Court of Justice, resolution could have and should have been canvassed in the interim, particularly in a case this dated. Instead, defence appeared content to have the matter adjourned to secure the complainant’s input, in pursuit of that resolution.
36For all of these reasons, I find that the time between the first and second judicial pre-trial is defence-caused delay. Accordingly, I deduct 50 days.
Period 4: December 13, 2025 to January 15, 2026
37At the time this trial was scheduled, trial dates in Brampton were secured by booking a trial scheduling call with the trial coordinator. Dates and the parties’ availability would be canvassed on that date, and trial dates would be secured. Those dates would be later confirmed in court.
38A trial scheduling call did not take place until January 15, 2026. The Crown says this is the fault of the defence and seeks a deduction of the delay between the second judicial pre-trial and the trial scheduling call.
39Defence counsel argues that it is the Crown’s responsibility to bring their client to trial. They say that part of the reason why a trial scheduling call was not set, was because they did not have the trial time estimate form from the Crown required to schedule the call. In the alternative, they argue that this delay should be apportioned equally between them and the Crown.
40I agree largely with the submission of the Crown. In doing so, I rely on the reasoning in Brett-Hughes 2022 ONCJ 31 at paras. 11-17. As Justice Rahman points out, as a practical matter both in Brampton and elsewhere in the province, defence counsel contacts the trial coordinator to start the trial scheduling process. This is not a new or unique process. As in Brett-Hughes, “[i]t was the applicant’s responsibility, after the judicial pre-trial to get the ball rolling.”
41Defence counsel could have and should have contacted the Crown earlier to get the trial time estimate form. When they ultimately did, they received the form on the same date. On January 5, 2026, they booked the scheduling call.
42I find that the delay from the second JPT to January 5, which is when defence took action to set the scheduling call, is defence delay. Accordingly, I deduct the period from December 13, 2025 to January 5, 2026, or 23 days, as defence-caused delay.
Period 5: September 2, 2026 to January 5, 2027
43The Crown seeks an additional deduction of 125 days due to defence unavailability. They say that defence counsel’s unavailability for earlier dates that were canvassed on this matter drove delay.
44In order to place this submission in context, it is important to review the trial scheduling history on this matter.
45Trial dates were ultimately set for January 4 and 5, 2027. The Trial Scheduling Form completed by the Trial Coordinator’s Office reveals that the Crown was available for the first two sets of dates offered, which were November 17 and 18 as well as November 18 and 19 of 2025. The defence was not available.
46The Court then initially offered three sets of dates for which both parties were available – November 19-20, 23-24, and 24-25. However, it became clear that the judge who was to be assigned was not available for the pre-trial motion dates. Accordingly, these aren’t really dates that were offered to the parties.
47Finally, five sets of individual dates were offered. The Crown was unavailable for all five. Defence was available for all except for one. The dates were November 25-26, November 30-December 1, December 2-4, December 7-11, and December 15-18.
48The parties ultimately agreed on the next set of dates offered, which were the trial dates selected.
49I have considered whether to deduct the one-week period between the first set of dates offered and the first set of dates available to defence. However, when I engage in the contextual analysis required by Hanan 2023 SCC 12, considering that the Court went on to offer four sets of dates that were available to the defence but declined by the Crown – all within a month of the first set of dates offered – I decline to do so.
50When the matter was next up in court, defence counsel advised that they did not anticipate that dates would be offered so far out, and that they would be bringing this application. The matter was adjourned for a judicial pre-trial to discuss its scheduling. That pre-trial was scheduled for March 10. This application was confirmed in court on April 10, 2026.
51On April 15, 2026, the Crown contacted defence counsel and the trial coordinator to arrange a scheduling call to try to secure earlier dates. That scheduling call appears to have taken place on April 24.
52On April 30, 2026, Assistant Crown Attorney Saara Wilson emailed defence counsel to confirm what took place during the scheduling conference. I have reproduced her email in its entirety below, as it is critical to the resolution of this issue:
Good morning,
This is just to confirm what occurred at last week’s trial scheduling conference.
The T-C was able to offer earlier dates as the Crown was willing to stack the trial. Given the timing and notice requirements of the pre-trial motions, however, the offered dates could only start in September. Unfortunately, defence was unavailable between September and November, such that earlier dates could not be accommodated.
In the event that defence becomes available earlier, please let me know and we can try again to obtain earlier dates.
53No other record of the dates offered, or the parties’ availability was adduced by either the Crown or defence. I was advised by the Crown during oral submissions that they inquired of the trial coordinator’s office and were advised that no scheduling form was generated because no earlier date was secured. I am mindful, however, that this submission is not evidence.
54In Qureshi 2026 ONCA 20, the Court of Appeal considered a situation akin to this one. The Crown sought to recanvas dates after a trial was set outside of the Jordan presumptive ceiling. Defence was unavailable for many of the dates offered. In adjudicating a s. 11(b) application, the trial judge treated the entire period that followed that unavailability as defence delay.
55The Court of Appeal concluded that this was an error. Relying on Hanan, the Court held that defence unavailability cannot be viewed in isolation. Rather, a court must consider all of the relevant circumstances, including the conduct of the Crown and the availability of the court, before determining whether a period of delay was caused solely by the defence. The Court cautioned against “siloing off” defence unavailability from the broader scheduling context.
56In particular, the Court was critical of the Crown for recanvasing dates well after the initial trial dates were set, and well after the Jordan concerns had crystallized.
57The Court was also critical of simply ‘stopping the clock’ at the first sign of defence unavailability, when viewed in context of the dates that had been recanvassed and the timing of when they were recanvassed.
58The circumstances of this case are somewhat distinguishable from Qureshi. In that case, dates were re-canvassed far closer to the trial dates. Here, while the Crown only sought to secure earlier dates about three months after this trial was set – a practice that I would add is far from ideal, considering the holding in Qureshi – the matter was not so close to the trial that it would be unrealistic for defence counsel to be available for earlier dates.
59But Qureshi highlights the importance of being able to assess the context in which the earlier dates were offered. The difficulty for the Crown in this case is that the record generated by the April 2026 scheduling exercise does not provide that broader context. Unlike the initial trial scheduling process, there is no scheduling form, no list of dates offered, and no record of the parties' respective availability.
60I am mindful that prior to the calculation of net delay, the Applicant bears the onus to establish that the delay exceeds the ceiling. However, this is not a case where defence has failed to adduce evidence that they should have on this application. The evidence that the Crown would ordinarily rely upon was never generated. No scheduling form was generated. The follow-up email does not set out the nature or scope of the dates that were offered. I am left unable to assess the Court’s capacity to offer dates and the parties’ availability for those dates.
61While it may be tempting to apportion this delay, I find that to do so on this evidentiary record would be an artificial exercise and run contrary to the contextual analysis required in Hanan. I decline to deduct any defence delay during this period.
CONCLUSION
62The total delay in this case is 762 days. From that, I deduct 49 days for the delay in retainer, 69 days for the failure to conduct a timely CPT, 50 days for the delay driven by resolution, and 23 days for the delay in scheduling the trial. This leads to a net delay calculation of 571 days, or approximately 19 months.
63The net delay in this case exceeds the Jordan ceiling. The Crown does not seek to justify that delay through exceptional circumstances.
64Accordingly, the application is granted. A stay is ordered.
Scheduling Best Practices
65Post-Hanan, courts adjudicating s. 11(b) applications must be able to assess context. A full picture of the Court’s capacity to offer dates and the parties’ availability needs to be generated.
66This can usually be accomplished through the Ontario Court of Justice Trial / Preliminary Inquiry Scheduling Form, completed by the trial coordinator’s office, with the assistance of the parties. That form includes a chart to list dates offered and columns that indicate whether both the Crown and defence are available. That is what was done when this trial date was initially set.
67That form should be completed, distributed to the parties, and then attached to the information so that there is no ambiguity when it comes to who was available when.
68Absent a clear s. 11(b) waiver, the practice of not offering large swaths of dates because of defence unavailability should be avoided. In other words, when defence indicates that they are not available for several months, the trial coordinator’s office should nonetheless generate a record of what dates could have been offered, and the Crown’s availability.
69When dates cannot be secured because of the unavailability of one or more of the parties, a record of the dates offered should still be created and shared with the parties.
70These practices help ensure that a Court being called upon to assess the context of defence unavailability can do so.
Released: July 22, 2026
Signed: Justice F. A. McCracken