Court of Appeal for Ontario

Date: August 29, 2025

Docket: COA-24-CR-0002

Panel: Tulloch C.J.O., MacPherson and Sossin JJ.A.

Between

His Majesty the King Respondent

and

Adam Dos Santos Appellant

Counsel:

• Cassandra DeMelo and Jolene Hansell, for the appellant
• Emily Marrocco, for the respondent

Heard: June 3, 2025

On appeal from the conviction entered by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury, on November 4, 2022.

Tulloch C.J.O.:

A. Introduction

[1] This appeal calls for guidance concerning how mistrials affect an accused's right to be tried within a reasonable time. I conclude that, unlike retrials following appeals, mistrials do not reset the clock. Rather, they should be assessed within the flexible and contextual framework provided by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Thus, unless the mistrial constitutes defence delay, the Crown must typically show that it is a discrete exceptional circumstance to justify above-the-ceiling delay resulting from it. This approach guards against complacency by incentivizing both the Crown and defence to prevent and reduce delay while also accounting for the wide range of circumstances that may cause a mistrial.

[2] In this case, the mistrial was a discrete exceptional circumstance. It was an unforeseeable result of a shared mistake of law which caused delay that the Crown could not reasonably remedy. The appellant was not only tried within a reasonable time, but also received a fair retrial with focused instructions that corrected the Crown's prejudicial question.

[3] Accordingly, and for the reasons that follow, I would dismiss the appeal.

B. Background

[4] The appellant stood trial in May 2022, approximately 32 months after he was initially charged in September 2019. Due to the first trial resulting in a mistrial, over 36 months had elapsed by the time of his conviction in November 2022. For context, the procedural history is outlined below.

[5] The charges concerned events that took place between 2014 and 2017. The complainant alleged that over the course of several years when she was a teenager, the appellant, who was four years her senior, repeatedly threatened to post intimate photos of her on social media if she did not have sexual intercourse with him. In fear that her intimate images would be disseminated, she complied. The appellant denied this, claiming that everything happened consensually within the context of a flirtatious and, later, a romantic relationship.

[6] After electing a jury trial on the sexual assault and extortion charges, the appellant pled guilty to distributing intimate images, following which the Crown withdrew the remaining child luring and child pornography charges.

[7] Before the appellant's first trial, the parties agreed and the defence submitted that June 2022, 32 months after the laying of charges in September 2019, would be the adjusted Jordan date to account for the disruption of the pandemic. The trial began on May 30, 2022, within the adjusted ceiling.

[8] The timing of the alleged sexual assault was a live issue at trial. The complainant testified that the appellant may have assaulted her as early as late 2014, slightly before the date range specified in the indictment. However, the Crown and the first trial judge, McArthur J., mistakenly assumed that the indictment covered this period.

[9] At the pre-charge conference, the Crown and the first trial judge expressed the belief that the dates specified in the indictment were elements of the offence and discussed instructing the jury accordingly. This was legally incorrect – typically, these dates are immaterial: R. v. G.G., 2025 ONCA 574, at paras. 39, 42, citing Criminal Code, R.S.C. 1985, c. C-46, s. 601(4.1). However, defence counsel proceeded with closing submissions on this basis and told the jury that they should acquit the appellant because, on the complainant's testimony, the assault may have occurred outside the date range.

[10] After the Crown asked to amend the dates in the indictment in response, the parties and the first trial judge realized that they are not essential elements of the offence, and the submission could not be left with the jury. The defence asserted that there was no other option but to declare a mistrial, arguing that a corrective instruction would destroy the defence's credibility in the eyes of the jury. The Crown argued that the trial could continue with a corrective instruction but did not oppose a mistrial.

[11] The first trial judge agreed with the defence and declared a mistrial. He found that the defence was not at fault because it had no reason to inquire further into the date range issue.

[12] Within two weeks, the parties scheduled the second jury trial to begin on October 31, 2022, the earliest court-offered date on which the defence was available. Because that date occurred several months after the adjusted Jordan ceiling, the appellant brought a s. 11(b) application.

[13] The application judge, Rady J., dismissed the application. After finding that the first trial occurred within the Jordan ceiling, she determined that the mistrial delay was not unreasonable. First, she ruled that the mistrial, like a retrial following an appeal, reset the Jordan clock pursuant to R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, and that the retrial occurred well within the reset 30-month ceiling. Second, and in the alternative, she determined that the mistrial was a discrete exceptional circumstance because it was an unforeseen and unavoidable consequence of the shared misunderstanding of the law. In addition to these case-specific findings, she commented that mistrials always qualify as discrete exceptional circumstances pursuant to R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 41, leave to appeal refused, [2017] S.C.C.A. No. 392.

[14] The second jury trial proceeded as scheduled. During the trial, the Crown twice applied to adduce evidence that the appellant possessed and distributed intimate images of the complainant while she was under 18 – images that, in law, constitute child pornography. The second trial judge, Leach J., dismissed both applications because this evidence was highly prejudicial and great care was taken to avoid using the term "child pornography" before the jury. The Crown nonetheless asked the appellant in cross-examination: "[i]n your understanding, at what age … is something child pornography versus not adult pornography."

[15] Defence counsel immediately objected, and the second trial judge promptly recognized the prejudicial nature of the question. After a brief recess, he issued the following mid-trial corrective instruction to the jury:

You heard [the Crown] ask the accused for his understanding as to when something would be child pornography or not. I'm instructing you that as a question which should not be answered, cannot be answered, will not be answered in the context of this trial. You're to ignore that that question was asked. The answer is not relevant to the determinations that you have to make in this case.

[16] The next day, the second trial judge repeated and reinforced this message. Before closing submissions and again in his final charge, he directed the jury to completely disregard the Crown's question and further instructed them not to engage in propensity reasoning. Defence counsel, who was consulted before the corrective instructions were delivered, raised no objection, and did not request a mistrial.

[17] On November 4, 2022, the jury found the appellant guilty of sexual assault and extortion. He was sentenced to a four-year global term of imprisonment.

C. Issues on Appeal

[18] The appellant raises the following issues on appeal:

1. Did the application judge err in dismissing the s. 11(b) application?
2. Did the Crown's question about child pornography render the retrial unfair?

D. Standard of Review

[19] The applicable standards of review are well-settled. For the s. 11(b) ruling, the application judge's characterization of periods of delay and ultimate determination of whether the delay was unreasonable are reviewed for correctness. However, underlying factual findings and determinations that exceptional circumstances exist are reviewed on a deferential standard unless tainted by legal error: R. v. Zahor, 2022 ONCA 449, at para. 79. The second trial judge's response to the Crown's question about child pornography is also owed substantial deference: R. v. Rose, [1998] 3 S.C.R. 262, at paras. 126-27; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 38.

E. The Appellant's 11(b) Rights Were Not Violated

[20] I begin with the s. 11(b) ground of appeal. The appellant argues that the application judge erred in treating the mistrial as resetting the Jordan clock. The respondent Crown also concedes that this was an error. I agree. Unlike retrials following appeals, mistrials do not reset the clock. Instead, the Jordan framework continues to apply. However, this error does not affect the outcome because the application judge found that the mistrial constituted a discrete exceptional circumstance. I will first set out the applicable legal principles before turning to the facts.

(1) Legal Framework for Mistrial Delay

[21] The application judge addressed two legal questions: (1) whether a mistrial resets the Jordan clock, and (2) if not, how the Jordan framework applies. She analogized mistrials to appellate-ordered retrials and concluded that mistrials always amount to discrete exceptional circumstances.

[22] With respect, both conclusions are incorrect. A mistrial does not reset the Jordan clock. Instead, the delay that follows must be assessed under Jordan. A mistrial is not automatically an exceptional circumstance either. Instead, the Crown must show that it was reasonably unforeseeable or unavoidable and that the resulting delay could not reasonably be mitigated as Jordan requires. This is a fact-specific inquiry.

(a) Mistrials Do Not Reset the Jordan Clock

[23] In J.F., the Supreme Court held that retrials ordered on appeal reset the Jordan clock because the original trial has concluded, and the accused is no longer a person "charged with an offence" for the purposes of s. 11(b). The accused loses that status once the appeal is filed and only regains it, along with a reset Jordan clock, once the appellate court orders a retrial: at paras. 23-24, 55, 60.

[24] Both parties correctly acknowledge that J.F. does not govern this case. That decision addressed retrials ordered on appeal – not mistrials. Moreover, in R. v. Way, 2022 ABCA 1, 408 C.C.C. (3d) 506, leave to appeal refused, [2022] S.C.C.A. No. 44, the Court of Appeal of Alberta expressly contemplated and rejected the analogy between mistrials and appellate retrials.

[25] I agree with Way that mistrials are fundamentally different. Unlike an appeal, a mistrial does not end trial proceedings or remove the accused's charged status. Rather, it is a disruption that triggers the need for a new trial within the same process. Thus, the matter remains governed by Jordan ceilings, not by a reset clock: Way, at paras. 19-22, 30.

[26] As well, the one-size-fits-all approach of resetting the clock is a poor fit for the diverse circumstances which trigger mistrials. "[M]istrials come in many flavours" and cover a wide "spectrum of situations": R. v. Clifford, 2022 ABQB 509, 55 Alta. L.R. (7th) 135, at paras. 25-26. They are often unanticipated results of developments that are neither party's fault — arising from issues like inadmissible evidence inadvertently provided to a jury, the discharge of a jury member, inadmissible and prejudicial communications between a witness and a juror, the need for counsel to withdraw, or bias discovered after a verdict: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 73-77; R. v. Melvin, 2017 NSSC 149, at paras. 2, 87. But they also sometimes stem from the conduct of the Crown and/or defence — for example, through improper jury addresses, disclosure breaches, or prejudicial or misleading trial strategy: see e.g., R. v. J.H.T., 2016 BCSC 2382, at paras. 155-74; R. v. Mack, 2007 ABQB 182, 458 A.R. 52, at paras. 77-80; Clifford, at paras. 26-29. This calls for more flexible approaches rather than a blanket response.

[27] Finally, resetting the clock after a mistrial would make it nearly impossible for an accused to establish unreasonable delay, since the accused would have to wait for the ceiling to be exceeded a second time: Way, at para. 25. That concern is present here: the application judge found the delay was "well within" the ceiling even though it was approximately half a year over Jordan's default timeline. This approach risks fostering a culture of complacency and weakening the Crown's longstanding obligation to prevent further delay following a mistrial: Way, at paras. 24, 27-30.

[28] In contrast, applying Jordan to mistrials is appropriate for two reasons.

[29] First, it allows courts to evaluate delay flexibly and contextually, based on the parties' conduct and the circumstances of the case. While the Crown may still meet the burden of proving an exceptional circumstance, Jordan permits a nuanced, case-specific assessment that remains available to the accused.

[30] Second, it incentivizes both parties to act appropriately and to prevent and mitigate delay. It reinforces the Crown's obligation to actively manage delay following a mistrial and avoid complacency: Jordan, at paras. 40, 75. Although some post-mistrial delay is inevitable, the Crown must take all reasonable steps to minimize it – for example, by promptly rescheduling the retrial: R. v. Brace, 2010 ONCA 689, 104 O.R. (3d) 32, at para. 14. This ensures that the passage of time does not prejudice trial fairness: R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1220. At the same time, applying Jordan encourages the defence to act legitimately and move promptly to schedule a retrial, thereby avoiding deductions for defence delay: Way, at para. 41.

(b) Applying the Jordan Framework to Mistrials

[31] Because Jordan governs, I turn to how it applies to mistrial delay.

[32] The Jordan framework involves four steps:

• Calculate the total time from the laying of the charge to the anticipated or actual end of trial;
• Subtract any defence delay to determine net delay;
• Assess whether the net delay exceeds the presumptive ceiling; and,
• If so, determine whether the Crown has rebutted the presumption of unreasonableness by proving exceptional circumstances.

See R. v. Zahor, at paras. 60–75.

[33] Defence delay must be deducted. Accordingly, mistrials resulting solely or directly from illegitimate defence actions, post-mistrial delay arising solely or directly from defence unavailability, or mistrial delay that is waived by the defence may be deducted: Jordan, at paras. 60-66; Way, at paras. 33, 41; Mallozzi, at para. 42.

[34] If the net delay exceeds the ceiling, the Crown must prove exceptional circumstances. For mistrial delay, this requires showing that (1) the mistrial was reasonably unforeseeable or unavoidable, and (2) the resulting delay could not reasonably have been mitigated: Way, at para. 35, citing Jordan, at para. 69.

[35] While mistrials may often fall within the category of discrete exceptional circumstances – unforeseeable or unavoidable developments that derail a trial – this is not automatic: Way, at para. 36, quoting Jordan, at para. 73. Contrary to the application judge's conclusion, mistrials are not presumed to be discrete exceptional circumstances. Such a presumption would encourage complacency. Rather, as the Court of Appeal of Alberta correctly held in Way, the Crown must always discharge its burden of proving exceptional circumstances under Jordan: Way, at paras. 33, 39. Mallozzi, which the application judge relied on, does not support a different approach. In that case, the Crown satisfied its burden because the jury selection issues were unforeseeable and addressed promptly: Mallozzi, at paras. 41-43.

[36] Thus, a contextual, fact-driven assessment is required. A mistrial may constitute an exceptional circumstance where it arises despite reasonable diligence by the Crown: Mallozzi, at para. 41. However, the Crown is unlikely to benefit from this exception if the mistrial was its fault. Likewise, the defence risks deductions for defence delay where its illegitimate conduct solely or directly produced the mistrial: Way, at para. 33, citing R. v. J.T., 2021 ONSC 365, at paras. 29-30.

(2) Application: This Mistrial Was a Discrete Exceptional Circumstance

[37] While the application judge erred by relying on J.F., the mistrial was a discrete exceptional circumstance under Jordan as she found in the alternative. Thus, the delay was not unreasonable. I conduct the full Jordan analysis below to explain this conclusion.

[38] Beginning with Jordan's first step, the total delay from the swearing of the information to the conclusion of the retrial was 36 months and 20 days.

[39] Proceeding to step two, I would deduct 108 days as defence delay. This includes the 26 days conceded by the appellant,[^1] as well as the 82-day period between March 19, 2022, the presumptive Jordan date, and June 9, 2022, the adjusted Jordan date. The application judge's finding that the defence expressly agreed to this adjusted date merits deference and establishes waiver: Jordan, at para. 61.

[40] However, I would not deduct any additional defence delay as the Crown requests. The time taken to obtain instructions was legitimate due to the fragmented disclosure and re-laid charges, and defence counsel acted diligently. Further, the mistrial is not defence delay because the first trial judge determined that the defence was not at fault — a factual finding to which we owe deference. As both the first trial judge and the application judge found, the mistrial arose from a shared misunderstanding of law, coupled with the Crown's good faith mistake about the dates. That mistake influenced both the presentation of evidence and closing submissions. Thus, the mistrial did not result solely or directly from illegitimate defence conduct.

[41] Accordingly, under step three, the net delay is 33 months and 3 days — still over the 30-month ceiling.

[42] Under step four of the Jordan framework, the Crown must rebut the presumption of unreasonable delay by establishing exceptional circumstances. The application judge found that the Crown met this burden, concluding that the mistrial qualified as a discrete exceptional circumstance. Like the first trial judge, she found that the mistrial was an unforeseen consequence of the shared misunderstanding of law. I would accept her conclusion, as it reflects a case-specific analysis that is entitled to deference, notwithstanding her erroneous suggestion that all mistrials automatically qualify.

[43] I do not accept the appellant's argument that the Crown was at fault because the first trial judge found that the defence was not to blame. Often, neither party is at fault for a mistrial: Melvin, at para. 87. The application judge found that was the case here. She was entitled to determine that the parties' shared misunderstanding of law is the type of inadvertent good faith mistake that inevitably happens and can trigger a discrete exceptional circumstance: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 58.

[44] I also do not accept the appellant's argument that the Crown should be faulted for mistaking the dates in the indictment. This was also a good faith mistake which was shared by the first trial judge. Further, the Crown could not have reasonably anticipated that defence counsel would focus so heavily on the dates in closing submissions, nor that this would undermine her credibility with the jury. The defence strategy was not raised during pre-charge discussions, so the resulting prejudice was not foreseeable.

[45] Once the issue came to light, the Crown proposed corrective options, including jury instructions and permitting a defence re-address. Defence counsel declined, reasonably concluding these would not cure the prejudice. By then, the only remaining option was a mistrial. Once it was declared, the Crown acted promptly to reschedule the retrial. These facts support the conclusion that the mistrial arose from a confluence of good-faith errors and that the Crown took reasonable steps to mitigate delay: Jordan, at paras. 69, 74.

[46] Following the mistrial, the Crown and the court acted expeditiously. The retrial was scheduled for October 31 to November 4, 2022 — just over five months later. The only earlier dates proposed were unavailable due to defence scheduling conflicts, and those seven days are already accounted for in the defence concession.

[47] With the deduction of the 82-day waiver and 26-day defence concession, and recognition of the mistrial as an exceptional circumstance, the final net delay is reduced to 28 months and 2 days — below the presumptive ceiling.

[48] The appellant has not argued that the remaining delay was unreasonable or that he took sustained steps to expedite the process in a way that would rebut the presumption of reasonableness: Jordan, at para. 48.

[49] Accordingly, I would dismiss this ground of appeal.

F. The Trial Judge Remedied the Improper Question

[50] This brings me to the final issue, concerning the Crown's question about child pornography. I would dismiss this ground of appeal too because the second trial judge's corrective instructions remedied the prejudice this question caused.

[51] The appellant argues that the Crown's reference to "child pornography" during cross-examination was improper and highly prejudicial. He contends that the second trial judge's corrective instructions were insufficient and, in fact, compounded the prejudice. While he does not claim that repeating them was a legal error, he argues that returning to the subject reinforced the reference to "child pornography" in the jury's mind.

[52] The Crown counters that the single reference to "child pornography" in an unanswered question did not cause irreparable prejudice. It maintains that the second trial judge's clear and timely corrective instructions were sufficient to address any potential harm and preserved the fairness of the trial.

[53] I agree with the appellant that the question was prejudicial. In the context of the earlier failed applications and the concerns raised by the defence, the Crown's question was improper and risked encouraging propensity reasoning.

[54] When Crown counsel makes improper comments that could cause significant prejudice, the trial judge must act. A failure to do so amounts to an error of law: Clyke, at para. 32; Rose, at para. 127.

[55] Here, the second trial judge acted. He properly sustained the defence objection, gave timely corrective instructions, and later reinforced those instructions before closing arguments and again in the final charge. Defence counsel was consulted on the approach and raised no objection.

[56] Contrary to the appellant's argument, the judge's instructions made it clear that the jury was to disregard the improper question, avoid propensity reasoning, and focus only on the issues properly before them. He did not suggest that the appellant possessed child pornography or could be charged with child pornography offences as the appellant suggests. Instead, he directed the jury not to speculate about how the appellant might have answered the question because it was improper and irrelevant. During oral argument, the appellant neither identified any legal error in the judge's corrective instructions nor proposed any alternative language that could have better addressed the issue.

[57] Repeating the corrective instructions was not improper either. Repetition can strengthen a corrective instruction: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 140-44; R. v. R. (R.), 19 O.R. (3d) 448, at p. 452. While in some cases it may risk prejudice by highlighting an issue the defence would prefer to avoid (R. v. F. (D.), 197 C.C.C. (3d) 365, at para. 38), the defence did not make this objection at trial.

[58] Further, the appellant has not shown that this is one of the rare cases where corrective instructions could not cure the unfairness. Timely, specific, and forceful corrective instructions like the ones given here are typically sufficient to ensure fairness because jurors are presumed to follow them: Rose, at paras. 125-126; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 81-83; R. v. Zhou, 2024 ONCA 658, 174 O.R. (3d) 1, at para. 82. The second trial judge, who was best placed to make that call, determined that they were adequate here. By not seeking a mistrial, the defence's own actions confirm that the prejudice was not so severe that a mistrial – a remedy of last resort – was the only path forward: Chacon-Perez, at paras. 141, 146.

[59] Thus, I find no error that compromised the fairness of the trial.

G. Disposition

[60] For the reasons above, I would dismiss the appeal.

Released: August 29, 2025

"M.T."

"M. Tulloch C.J.O."

"I agree. J.C. MacPherson J.A."

"I agree. Sossin J.A."

Footnotes

[^1] This period includes: (1) four days to obtain instructions between January 4-8, 2021, (2) 14 days of defence unavailability for the preliminary hearing between August 3-17, 2021, and (3) seven days of defence unavailability for the retrial between October 24-31, 2022.

Note: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.