ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KYLE JEFFREY BULLOCH
Before Justice David Rose
ADJOURNMENT RULING
Reasons released on July 23, 2026
Ms Courtney Cottle counsel for the Crown
Mr. Victor O’Brien counsel for the accused Kyle Bulloch
ROSE J.:
1This is a ruling on setting a preliminary hearing date. I gave oral reasons on July 21 for this. As I said in Court that day, I would release written reasons. This is necessary because of the unusual features of the proceedings.
2When the case appeared before me on July 14, 2026 to set this date, Mr. O’Brien sent an agent who had no instructions about defence availability and was unprepared to set the date. On July 21, both Mr. O’Brien and Mr. Bulloch eventually appeared before me by video.
3Mr. Bulloch is charged with Impaired Operation Causing Bodily Harm, 80 plus Operation Causing Bodily Harm, Fail to Stop Causing Bodily Harm and Operate a Conveyance while Prohibited. The date of the offence is said to be October 2, 2021. The Information was laid before the Court on November 18, 2021. Mr. Bulloch was Bench Warranted between December 19, 2023 and March 11, 2024. His previous counsel was removed from the record when he failed to appear on December 19, 2024.
4The case is now some 56 months old. 16 months ago, on March 26, 2025 Mr. Bulloch elected to have a Superior Court judge alone trial with a Preliminary Hearing. Mr. O’Brien has been his counsel for some time. He filed a Designation of Counsel on November 7, 2025.
5A Preliminary Hearing with Mr. O’Brien was scheduled for February 23 – 27 of this year but it did not proceed because Mr. O’Brien brought a motion which asked this Court to force a re-election to trial in this Court. The defence took the position that Mr. Bulloch no longer wanted a Preliminary Hearing, and also that he believed that the election was a trial in this Court. That Application asserted that Mr. Bulloch. “…no longer wishes to have a 5 day contested preliminary hearing”. He should not be “…forced into a preliminary inquiry and a trial the Superior Court of Justice that he does not want”. He described a Preliminary Hearing in this case as “wasteful”. When the case appeared before me on June 5 I instituted summary dismissal proceedings. On July 2 I summarily dismissed that motion because it was manifestly frivolous, see R. v. Bulloch 2026 ONCJ 400.
6In that ruling I noted that Mr. Bulloch has now taken two contrary positions before the Court. The first is that he wanted a preliminary hearing, as he told Wheeler J. on March 26, 2025, and also that he did not want a preliminary hearing as he asserted in his now dismissed motion.
7The case now needs to be set down for a Preliminary Hearing. Mr. O’Brien filed a Statement of Issues on July 13, 2026 which asserts that the Preliminary Hearing will be on every issue and that every potential witness in the case needs to be heard by the defence. I would describe the filed Statement of Issues as unfocussed because of its breadth.
8The Court can offer a Preliminary Hearing date commencing on October 26, 2026. The Crown is available. Mr. O’Brien is unavailable until early February of 2027.
9The test for setting dates in a situation such as this is outlined in R. v. McCallen 1999 CarswellOnt 197 (C.A.);
40 Nevertheless, the right to retain counsel of choice is not an absolute right; it is obviously limited to those counsel who are competent to undertake the retainer and are willing to act. There are two further limitations on the right that are in issue on this appeal: the first is the requirement that counsel be available to represent the client within a reasonable period of time and the second is the requirement that counsel be free of any disqualifying conflict of interest.
46 The law is clear that the decision to fix a date for trial is discretionary and that in choosing a date the court must act judicially and balance a number of factors including the availability of an accused's counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused's counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused's choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: See R. v. Lai (May 15, 1991), Doc. 66/90 (Ont. Gen. Div.); Barrette v. R. (1976), 1976 CanLII 180 (SCC), 29 C.C.C. (2d) 189 (S.C.C.) and R. v. Smith (1989), 1989 CanLII 7222 (ON CA), 52 C.C.C. (3d) 90 (Ont. C.A.).
46 In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant and witnesses, the availability and use of Crown counsel and law enforcement officers and the potential impact of the scheduling decisions on the rights of an accused under s. 11(b) of the Charter guaranteeing a trial within a reasonable period of time. See Smith , supra, at p.93; Lai , supra.
Emphasis added
10The question to be resolved is whether this Preliminary Hearing should go ahead on October 26 despite Mr. O’Brien’s unavailability or whether it should be set down for early February 2027 when he is available.
11I would balance the factors this way. In this case it is not a trial which the Court is setting, but a preliminary hearing. There will be no finding of culpability at the end of it. Mr. Bulloch is not exposed to a finding of guilt and a finding of not guilty is similarly unavailable. The core question for the Court is whether the Crown evidence meets the test for committal for trial or not per s. 548 (1) of the Code. Only the Superior Court has the jurisdiction to find Mr. Bulloch guilty or not guilty. The discovery aspect of a preliminary hearing is incidental to the core function, and has lost much of its relevance, see R. v. S.J.L. 2009 SCC 14 at par 23.
12Furthermore, based on the materials filed with the Court this is a preliminary hearing which Mr. Bulloch does not want, finds wasteful, but nonetheless is unwilling to waive. He brought a frivolous motion which resulted in the adjournment of a preliminary hearing last February. It is extraordinary for a represented person to request a preliminary hearing and then tell the court they do not want that procedure but then refuse to waive the preliminary hearing. Mr. Bulloch’s position has now come full circle. He is now back at his original position of wanting a preliminary hearing on all issues with every conceivable witness being called. This is more than circular. It is wasteful of valuable court resources which are required to move the case forward.
13In Court Mr. O’Brien said that, despite my comments at R. v. Bulloch 2026 ONCJ 400 at par. 28, he has no instructions to waive this Preliminary Hearing. He asks for more time to get those instructions. I re-iterate what I said in R. v. Bulloch (infra), namely that a preliminary hearing can be waived at any time. It is a straightforward procedure involving bringing the Information forward so that the defendant can waive the preliminary hearing before the Court. If Mr. O’Brien has been unable to get instructions to waive this Preliminary Hearing the Court will wait no more before setting this date.
14Lastly, the delay in this case is extraordinary. It is approaching its fifth anniversary with no preliminary hearing even scheduled. The R. v. Jordan 2016 SCC 27 time lines have been exceeded to the point that the Court is dismayed. To permit this case to be set in February of 2027 would be to embrace a culture of complacency which is in tension with jurisprudence from Jordan and its progeny. The public interest in seeing this preliminary hearing completed expeditiously is very high.
15Balancing the factors I find that Mr. O’Brien is not reasonably available. Mr. Bulloch’s right to counsel of choice must give way to this case being set down much earlier than his availability.
16I recognize that forcing a case on where counsel is unavailable is to be avoided if possible and that it is extraordinary, but in this case it is unavoidable and the extraordinary history calls for forcing it on.
17For these reasons this Preliminary Hearing will commence on October 26, 2026 and go continuously until October 30, 2026. I encourage Mr. Bulloch to work with Mr. O’Brien so that Mr. O’Brien can represent him at the preliminary hearing. Alternatively, he can retain another lawyer who is available for the preliminary hearing. But if Mr. Bulloch does not retain counsel who is available for this Preliminary Hearing it will go ahead on a with or without counsel basis.
18Mr. Bulloch should obtain the Crown disclosure from the Kingston Crown Attorney’s office and be prepared to proceed on October 26, 2026 with or without counsel. The Preliminary Hearing is in person in Kingston Provincial Court #1. Mr. Bulloch is remanded to that day at 10:00 am. The Crown must deliver the s. 540(7) material directly to Mr. Bulloch in the event that he does not have counsel on October 26.
19The filed Statement of Issues requests evidence on every possible issue in this case and to hear from every possible witness. Given its lack of focus, a Focus Hearing under s. 536.4 will proceed on September 29 at 9 am in Kingston #1 Court. The Focus Hearing can be by video appearance. The Crown must deliver its s. 540(7) materials to the trial coordinator at least one week in advance of the Focus Hearing.
20I remind all participants about the importance of timeliness when appearing before the Court.
Released: July 23, 2026
Signed: Justice D. Rose