Court of Appeal for Ontario

Date: September 17, 2025

Docket: COA-24-CR-0287

Judges: van Rensburg and Coroza JJ.A. and O'Marra J. (ad hoc)

Between

His Majesty the King Respondent

and

K.D. Appellant

Counsel:

• Anthony Paciocco and Jocelyn Rempel, for the appellant
• Joanne Stuart, for the respondent

Heard: March 5, 2025

On appeal from the convictions entered by Justice Michael G. March of the Ontario Court of Justice, dated August 10, 2023, with reasons at 2023 ONCJ 601.

van Rensburg J.A.:

A. Overview

[1] The appellant was charged with historical sexual offences against his niece and nephew. He was arrested on September 23, 2020, and the information was sworn on October 20, 2020. His trial concluded on August 10, 2022, 112 days over the presumptive Jordan[^1] threshold. After the end of the trial, but before the verdict was rendered, defence counsel applied for a stay of proceedings alleging a violation of the appellant's rights under s. 11(b) of the Charter.

[2] The trial judge dismissed the application, holding that, after deducting 58 days of defence delay, and 61 days of delay caused by discrete exceptional circumstances (including 40 days arising from the COVID-19 pandemic), the net delay was 540 days, eight days below the 18-month or 548-day Jordan threshold for cases in the Ontario Court of Justice (the "OCJ").[^2] Both parties on appeal agree that the total delay in this case was 660 days and not the 659 days calculated by counsel below and relied on by the trial judge. As such, on the trial judge's analysis the net delay was 541 days, seven days short of the Jordan ceiling.

[3] The appellant was convicted of two counts of sexual assault and one count of gross indecency. He was sentenced to six years' imprisonment.

[4] The appeal challenges the trial judge's dismissal of the s. 11(b) application.[^3] The Crown concedes three issues raised by the appellant: that the trial judge incorrectly attributed 26 days as defence delay in respect of the period from May 19 to June 13, 2022 inclusive;[^4] that he double- or triple-counted certain periods of delay;[^5] and that he erred by including a trial date (May 5, 2022) in his deduction for pandemic backlog delay. Once these errors are corrected, the net delay stands at 571 days and exceeds the Jordan threshold by 23 days.

[5] There are two disputed issues. The first relates to the trial judge's determination that the defence was responsible for 30 days of delay during the period from February 14 to April 3, 2022 inclusive. The appellant contends that, after deducting February 14 and 15 as defence-waived delay (due to the defence having refused those dates because they were double-booked), the trial judge should not have attributed a further 30 days to defence delay when there was no court time available during that period. For its part, the Crown asserts that the full 49 days between the dates that were refused by defence counsel (February 14 and 15) and the next available trial date (April 4) ought to have been deducted as defence delay.[^6]

[6] The second issue, raised by the Crown in response to the appeal, is whether this court can and should allocate – in addition to 36 of the 40 days so allocated by the trial judge[^7] – an additional 41 days in respect of the period from June 30 to August 10, 2022 inclusive, and an additional 13 days during the period of April 4 to 18, 2022, to the discrete exceptional circumstance of the COVID-19 pandemic backlog, for a total deduction of 90 days. The Crown relies on the trial judge's detailed description, in his capacity as the local administrative judge, of the effect of the pandemic on the scheduling of trials and their progress in the OCJ in Renfrew County, and his observation that, if the Crown had asked for a general 90-day allowance for the COVID-19 pandemic, he "likely would have granted it".

[7] As I will explain, on the first issue I would not interfere with the trial judge's attribution of 30 days' delay to the defence (in addition to two days of defence waiver) for the period of February 14 to April 3, 2022 inclusive. The trial judge's treatment of this period, and his allocation of some, but not all, of the days as defence delay, reflect a proper understanding and application of the guidance of the Supreme Court in R. v. Hanan, 2023 SCC 12, 436 C.C.C. (3d) 1.

[8] As for the second issue, I would not give effect to the Crown's new request on appeal that this court allocate additional time to pandemic-related delay beyond the 40 days (36 days once corrected for double-counting and the mistaken inclusion of a trial date) that were sought and granted at first instance. I emphasize that this appeal is not about whether, and on what evidentiary record, a general deduction of some period of time for COVID-19 pandemic-related delay as a discrete exceptional circumstance might be warranted in a particular case. That is not how this matter was argued: the Crown tethered the COVID-19 pandemic arguments at first instance to a specific period, namely May 4 to June 12, 2022 inclusive, and then, on appeal, to the additional specific periods of April 4 to 18 inclusive (in part) and July 1 to August 10, 2022 inclusive. While the record is sufficient to permit this court to address what is in effect a new issue raised by the Crown in responding to this appeal, the evidence does not support the Crown's argument that these additional specific delays resulted from the COVID-19 pandemic.

[9] Accordingly, after determining that there should be no change to the trial judge's allocation of defence delay in respect of the disputed period and no increase to the period counted as pandemic-related delay, the net delay remains 571 days, which is 23 days above the Jordan threshold. I would therefore allow the appeal, set aside the appellant's convictions, and stay the proceedings against the appellant.

[10] I will begin these reasons with a summary of the relevant procedural history and the decision of the trial judge in respect of the s. 11(b) application. After setting out the standard of review, I will address the two disputed issues on appeal.

B. Relevant Procedural History

[11] The presumptive Jordan threshold for this case was reached on April 20, 2022, the second day of trial, which is 18 months from the date the information was sworn.

[12] There were two main causes of delay. The first related to Crown disclosure. Between the end of October 2020 and the end of March 2021, over a period of five months, the defence sought several witness statements, including the statements by the two complainants. Once such disclosure was made, the parties held a Crown pre-trial on April 6, 2021, and a judicial pre-trial ("JPT") took place on May 18, 2021.

[13] The second broad cause of delay was the repeated cancellation and rescheduling of trial dates, which resulted in the trial ultimately taking place over ten full and partial days between April 19 and August 10, 2022: April 19, 20 and 21; May 2, 3 and 5; June 30; and August 5, 9 and 10.

[14] On May 21, 2021, three days after the JPT, the parties met with the trial coordinator to set dates for a seven-day trial. The trial coordinator initially offered February 14 and 15, 2022, and five days in April 2022: April 4, 5, 6, 7 and 19. This would have resulted in the trial being completed just within the Jordan threshold of 18 months. Shortly after the meeting, the trial coordinator emailed counsel to advise that the February dates were double-booked, and she offered April 20 and 21 as two alternative trial dates. While both sides were available for the February dates, defence counsel preferred not to proceed on the double-booked days and, at the Crown's request, confirmed that he would not bring a s. 11(b) application in relation to the move from the February to the April dates. The February dates were cancelled, and the two new dates, April 20 and 21, were added.

[15] On June 14, 2021, the trial coordinator cancelled the April 4-7, 2022 trial dates. The court offered three dates in March (March 7, 30 and 31, 2022), which were refused by Crown and defence counsel in favour of dates that were closer to the remaining April trial dates. Ultimately, May 2, 3, 4 and 5 were set as replacement dates for the cancelled April dates. On April 5, 2022, two weeks before the trial was to begin, the May 4 date was cancelled to accommodate the trial of another matter with s. 11(b) issues. The parties agreed to wait and see how the six set dates proceeded before requesting a replacement date.

[16] The trial began on April 19, 2022 and continued on April 20-21, May 2-3 and May 5. On May 9, June 10 and 13 were set as continuation dates. Both counsel agreed they needed another date, and after some back and forth, the trial coordinator offered half-days on May 19 and June 8, and full days on June 14 and June 22. Defence counsel was available on all dates except June 22, but he expressed concern about proceeding on partial days. The Crown was available only on June 22. The parties considered other dates, ultimately agreeing on June 30. The June 10 and 13 dates were cancelled on June 6 after Crown counsel brought an adjournment application based on a coroner's inquest she was required to attend on those dates. On June 21, the court opened up three additional dates in August. The trial continued on June 30 and then on August 5 and 9, and was completed on August 10.

[17] After closing submissions, defence counsel confirmed that he would be bringing a s. 11(b) Charter application, and he waived the appellant's s. 11(b) rights from that date forward.

C. The Trial Judge's Decision on the Section 11(b) Application

[18] The appellant's case took 660 days (or 21 months and 22 days) to complete, from the date the information was sworn (October 20, 2020) to the end of closing submissions (August 10, 2022). The Jordan ceiling was reached on April 20, 2022 (the second day of trial), which was 18 months or 548 days after the information was sworn. The total delay was 112 days above the Jordan ceiling.

[19] The Crown sought to deduct the following three periods: (1) February 14 to April 3, 2022 inclusive, because defence counsel agreed to vacate the double-booked February 14 and 15 dates in favour of April dates that were consecutive to the dates already booked; (2) an overlapping period of March 7 to May 1, 2022 inclusive, because the Crown and the defence agreed to decline dates in March in favour of dates in May, following the already-booked April dates; and (3) May 19 to June 13, 2022 inclusive, because defence counsel had indicated that there was not much sense in setting the matter for two half-days on May 19 and June 8. While conceding that the defence was not the "sole contributor" to these three periods of delay, the Crown asked for them to be deducted as defence or "neutral" delay. The defence argued that no time should be allocated as defence delay, other than the two days of express waiver in relation to the February 14 and 15 dates.[^8]

[20] With respect to the first period, February 14 to April 3, 2022 inclusive, the defence argued that the February 14 and 15 double-booked days were not actually available for trial, and that the trial coordinator had corrected her mistake by offering later dates in April. The trial judge did not accept this interpretation of what occurred. He noted that, in the email exchange, defence counsel had indicated that he wished to decline the February dates when informed that the trial was double-booked with other matters and that seven full days could be offered in April 2022. The trial judge concluded that "defence counsel's preference for full days, however unlikely they may be available when busy provincial courts are struggling to deal with the backlog of cases caused by the Covid 19 pandemic, resulted in time being wasted." He noted furthermore that defence counsel indicated on the record that there would not be a s. 11(b) Charter application in relation to the move from the February dates to the April dates, and that "[i]f this is not an express defence waiver of time when a trial could have started, but did not, it must certainly amount to defence caused delay."

[21] The trial judge did not, however, accede to the Crown's request that the full 49 days from February 14 to April 3 inclusive be characterized as defence delay. Citing Hanan as authority that the entire time between a defence refusal of a hearing date and the next available hearing date would not necessarily count as defence delay, the trial judge attributed 30 days to defence delay. He observed that, while the trial would certainly not have been completed by February 15, it could have advanced earlier than it did, and if the trial could not complete in the seven days in April that were set aside, it would take longer to find further trial time in the future for finishing it.

[22] The trial judge refused to attribute any delay to the defence for the period from March 7 to May 1, 2022 inclusive, when the court had offered earlier dates of March 7, 30 and 31, 2022 after the April 4-7 trial dates were cancelled. The dates were declined by both Crown and defence counsel. The trial judge rejected the Crown's reliance on "neutral delay" as no longer a valid consideration under Jordan principles.

[23] As for the period from May 19 to June 13, 2022 inclusive, the trial judge agreed with the Crown that this period of 26 days should be attributed as defence delay. He found that, on May 12, 2022, defence counsel had declined the May 19 and June 8 dates offered by the court because they were half-days only.

[24] Deducting 58 days of defence delay (two days of waived delay and 56 other days), the trial judge observed that the net delay was 601 days, surpassing the Jordan ceiling by 53 days.[^9]

[25] The trial judge then considered the Crown's alternative arguments that deductions should be made as a result of exceptional circumstances. The Crown relied on three "discrete" exceptional circumstances causing delay: (1) the illness of a complainant on April 21, 2022, cutting short her testimony that day; (2) the Crown's participation in a coroner's inquest, from June 10 to June 29, 2022 inclusive; and (3) COVID-19 pandemic-related delay in respect of the rescheduling of the May 4 trial date to June 13, 2022.

[26] The defence conceded that the second event counted as an exceptional circumstance but opposed the Crown's requests for deductions in relation to the other two periods. The defence resisted the Crown's proposed deduction of multiple days in respect of the one shortened day due to a complainant's illness. Defence counsel also asserted that, without hearing from the trial coordinator, and relying only on the Crown's conjecture about why May 4 was cancelled, the evidence was not sufficient to establish that the pandemic backlog led to the delay from May 4 to June 12 inclusive.

[27] The trial judge agreed with the Crown's request to treat each identified period as a discrete exceptional circumstance. First, there was no question that a trial date was cut short due to the sudden illness of a witness. Rather than acceding to the Crown's request for the deduction of "at least a couple days to complete the evidence, and then some additional time because we had to find some continuation dates in an already overbooked court schedule", the trial judge counted one day of delay resulting from this exceptional circumstance. Second, he agreed to the Crown's request to count as 20 days of deductible delay the period from June 10 to 29 inclusive, resulting from the Crown's required participation in an inquest, which had occasioned an adjournment that was not opposed by the defence. Third, the trial judge concluded that May 4 was lost as a trial date because the court was required to use that date for another case with significant delay issues. He deducted the 40 days that were requested by the Crown for COVID-19 pandemic-related delay in respect of the period from May 4 to June 12, 2022 inclusive.

[28] In addressing the pandemic-related delay, the trial judge noted that the court could take judicial notice of the backlog caused by the pandemic. He made observations about the pandemic's impact on the courts, drawing from a series of Superior Court of Justice decisions and his knowledge of the specific circumstances in Renfrew County based on his role as the local administrative judge. He observed that the entirety of the trial had taken place during the pandemic, when the court was struggling to schedule and reschedule cases, and he explained that he could only try "to meet the demands placed on scarce judicial resources" by directing his trial coordinator "to double-book, triple-book and quadruple-book trial upon trial, each and every available … sitting day" and by giving up chambers days.

[29] After granting the Crown's request to deduct 40 days for pandemic backlog delay, the trial judge went on to review an OCJ decision out of Renfrew County that had been released four days earlier, R. v. Desjardins, 2023 ONCJ 244, as well as R. v. G.S., 2022 ONCJ 427. These decisions noted the divergence between cases requiring a direct, identifiable link between the pandemic and the delay before such delay can be deducted and those opting to simply attribute a period of delay to the pandemic backlog precisely because of this evidentiary difficulty. The trial judge endorsed the latter approach and noted that, "[i]f the Crown had asked for a general, 90 day allowance for Covid backlog in this case, I likely would have granted it" (emphasis added).

[30] Ultimately, the trial judge deducted 58 days for defence delay and 61 days for discrete exceptional circumstances, without accounting for periods of overlap. He concluded that the net delay was 540 days, eight days short of the 548-day Jordan ceiling. (As noted earlier, the trial judge mistakenly believed the total delay in this case to be 659 days, whereas it was in fact 660 days; the net delay, on his analysis, was therefore 541 days, seven days shy of the Jordan ceiling.) Since the defence had not argued that delay under the threshold was nevertheless unreasonable, he dismissed the application.

[31] Before leaving my review of the trial judge's reasons, I note that the trial judge did not accede to the Crown's preliminary argument that the s. 11(b) application should fail because it was brought at the end of the trial, rather than as soon as the delay crystallized. In making this argument, Crown counsel emphasized that she was not criticizing defence counsel in any way for having caused delay in the proceedings, except in respect of the timing of the s. 11(b) application. Defence counsel responded that he had acted reasonably in not bringing the application until the end of trial: he had raised concerns about delay throughout the proceedings; it would have been unwise to bring an application before it had some reasonable chance of success; and to bring the application mid-trial, using the dates set for trial for a s. 11(b) application, would have caused even more delay. There was also the practical problem of Legal Aid funding for the required transcripts, which was not available until after the trial concluded.

[32] Although he did not dismiss the application based on its lateness, and he did not explicitly address in his reasons the Crown's request for a dismissal on this basis, the trial judge was nevertheless critical of the defence for not having brought the application as early as June 2021, when it became clear that the Jordan ceiling would be reached on the second day set for trial. He suggested that the court and the Crown could have taken steps to expedite the trial and that instead they were "left in the dark", and that the court "received no clear warning the time allotted for completing the trial was taking too long."

[33] Nothing in this appeal turns on whether there is merit to the trial judge's criticisms: the Crown does not renew its argument that the lateness of the application justified its dismissal. Nor are there any issues on this appeal that would engage questions of the reasonableness of the defence conduct, such as a request for a stay under the Jordan threshold. That said, the Crown's factum and submissions on appeal reiterate complaints about the defence attitude toward delay in this case.

[34] The record does not, in fact, support the suggestion that the court and the Crown were "left in the dark" on the issue of s. 11(b). It was the trial judge and Crown counsel who asked defence counsel at the end of trial whether he would be bringing a s. 11(b) application, "prompted by [his] prior comments … about delay concerns"; the s. 11(b) application therefore did not take them by surprise. In the early days of trial, the trial judge and both parties acknowledged the delay issue in the context of the pandemic backlog and noted repeatedly that they were all doing their best to move this matter along. Defence counsel expressly raised delay as an issue in court on May 2 and June 6, 2022. The record also discloses that the defence was cooperative in obtaining early dates, and at the hearing of the s. 11(b) application below, Crown counsel even characterized the defence refusal of the February 14-15 dates, in favour of full days consecutive to the April dates that had been set, as a "responsible" decision.[^10]

[35] Accordingly, I would not endorse the trial judge's strong criticisms of defence counsel's approach to the proceedings.

D. Issues on Appeal

[36] This appeal turns on whether deductions for delay waived or caused by the defence and discrete events qualifying as exceptional circumstances amount to or exceed 113 days and thereby result in a net delay short of the Jordan ceiling (i.e., a net delay of 547 days, against a total delay of 660 days).

[37] The appellant does not dispute 59 days of deductions, consisting of two days of defence-waived delay in respect of the defence refusal to accept the February 14 and 15, 2022 double-booked trial dates, and deductions for discrete exceptional circumstances of one day for a complainant's illness (April 21, 2022), 20 days for Crown counsel's involvement in the coroner's inquest (June 10 to June 29, 2022 inclusive), and 36 (not 40) days for COVID-19 pandemic delay (May 4 to June 12, 2022 inclusive, minus May 5, which was a trial date, and minus June 10, 11 and 12, which were already counted in the inquest delay).

[38] The two issues to be determined are: (1) whether the trial judge erred in attributing 30 days to defence delay for the 49-day period between February 14 and April 3, 2022 inclusive; and (2) whether this court should attribute additional periods to the discrete exceptional circumstance of the COVID-19 pandemic backlog.

[39] In addressing these issues, I am mindful of the standard of review in an appeal of a s. 11(b) application disposition. Deference is owed to a trial judge's underlying findings of fact, while characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff'd R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para. 2. A trial judge's determinations about what occurred and how that is to be understood in the local context constitute findings of fact that are reviewed on a standard of palpable and overriding error and are owed a high level of deference on appeal: Jordan, at paras. 64-65, 71; and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 31.

E. Discussion

(1) Issue #1: Did the trial judge err by attributing 30 days to defence delay for the period from February 14 to April 3, 2022 inclusive? Should the trial judge have attributed all 49 days of delay to the defence?

(a) Positions of the Parties

[40] The appellant submits that the trial judge erred by attributing 30 days to the defence for this period, as the delay was not the sole responsibility of the defence. The appellant explains that, immediately after the trial scheduling conference, the trial coordinator indicated to the parties that there were already trials booked on two of the days, February 14 and 15, 2022, and she offered two full days for hearing immediately after what was then the last scheduled day of trial (April 19). The appellant asserts that defence counsel indicated that he could make either set of dates work, but ultimately agreed to defer the start of the trial, anticipating that this would push its completion back by two days, to April 21, which was still within the Jordan threshold (once the defence-waived days of February 14 and 15 were taken into account).

[41] The appellant points out that, at first instance, Crown counsel never took the position that this delay was caused solely by the defence, and instead characterized it as "neutral" delay or delay "contributed to" by the defence. The appellant submits that ending the trial two days later, based on the decision not to take the February 14 and 15 dates, was acknowledged by defence counsel's explicit waiver of two days, and that it was an error for the trial judge to attribute additional time to defence delay when the court could offer no dates between February 14-15 and April 19.

[42] The Crown asserts that the trial judge was correct to recognize this period as defence-caused delay but submits that the trial judge ought to have deducted the entire period of 49 days. (This 49-day period would include the two days that the defence waived, namely February 14 and 15.) The Crown asserts that defence counsel declined two days on which the Crown and court were both available, and because of that conduct the trial started 49 days later than it otherwise would have. In the Crown's submission, the trial judge erred by limiting the deduction for defence delay and by speculating about what may or may not have occurred on the two February trial days.

(b) Analysis

[43] I would not interfere with the trial judge's attribution of 30 days' delay to the defence in respect of this period. First, the trial judge's characterization of what transpired (i.e., that the defence caused the delay by refusing partial trial dates) is supported by the record and entitled to deference. The scheduling emails show that the Crown was available to proceed on the February 14-15 double-booked dates, and it was defence counsel who preferred the April 20-21 dates, stating "[l]et's do the April dates." As this court recently recognized in R v. S.A., 2024 ONCA 737, 174 O.R. (3d) 81, at paras. 38-41, leave to appeal refused, [2024] S.C.C.A. No. 471, "stacking" trials is a necessary and salutary practice in many jurisdictions, and as the trial judge observed, it was necessary in the OCJ in Renfrew County to meet the "ever-increasing needs for trial time".

[44] Even if Crown counsel did not oppose giving up the February 14 and 15 dates, and Crown counsel at first instance asserted this was defence-"contributed" delay and was not unreasonable, it was properly characterized by the trial judge as defence delay. At least part of the period from February 14 to April 3 inclusive was delay that was caused "solely or directly" by the defence because the court and the Crown were ready to proceed on February 14 and 15, but the defence was not: see Jordan, at paras. 64, 66.

[45] The trial judge properly applied the Supreme Court's guidance in Hanan, rejecting the "bright line" rule that the defence would be responsible for the entire delay after a refusal of dates, even where the court or the Crown was not available for some or all of the period that followed, and refusing to deduct the full 49 days as defence delay. As in Hanan, the defence cannot fairly and reasonably be held wholly responsible for a span of time largely comprising a period where the court was unavailable.

[46] At the hearing of this appeal, the Crown sought to limit the applicability of apportionment pursuant to Hanan to cases where the need for continuation dates was caused by an exceptional circumstance. However, nothing in Hanan limits the principle that "'[a]ll relevant circumstances should be considered to determine how delay should be apportioned among the participants" (Hanan, at para. 9). To be clear, it is not that the apportionment of delay is warranted in every case, but rather that the circumstances of every case must be considered to determine whether apportionment is warranted: see also R. v. Boulanger, 2022 SCC 2, at para. 8.

[47] The appellant asserts that only the first two days that were expressly waived should be counted as defence delay because there were no court dates available during the intervening period. I do not agree. In R. v. Jones, 2025 ONCA 103, 176 O.R. (3d) 81, this court observed, at para. 32:

While Hanan rejects a bright-line rule apportioning the defence with all of the delay after it rejects an available date, it did not adopt an inverse bright-line rule apportioning the defence with none of the delay. Instead, it directs courts to consider "all relevant circumstances" to apportion the delay among the parties.

In Jones, after concluding that the judge below had erred in law in attributing none of the period in question to defence delay solely because the court was also unavailable, this court considered it fair and reasonable to attribute roughly one-half (21 days) of a 43-day period to defence delay because "defence counsel's unavailability contributed to the delay", where the trial court had offered only three consecutive days in a single week followed by no availability for 40 days for a JPT: at para. 36.

[48] Similarly, in the present case the trial judge did not err in apportioning some part of the period from February 14 to April 3 inclusive (but not all) to the defence. It would have been an error in the circumstances to decline to deduct any defence delay, even though there was no court availability between these dates. As the trial judge recognized, this case could have advanced earlier than it did had defence counsel accepted the February 14-15 dates, and if for some reason the trial could not complete in the seven days set aside for it in April it would take longer to find further trial time in the future for finishing it. Consistent with Hanan, he considered the relevant circumstances and concluded that it was reasonable to apportion 30 days to the defence.[^11] I would not interfere with the trial judge's assessment, which reveals no error in law.

(2) Issue #2: Should this court allocate a greater amount of time for COVID-19 related delay?

[49] In response to the appeal, the Crown seeks additional time to be allocated to pandemic-related delay. Unless the Crown is able to establish that at least another 24 days can be deducted for pandemic-related delay, the appeal must be allowed.[^12]

[50] "Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise" (emphasis in original): Jordan, at para. 69. There is no dispute that the COVID-19 pandemic counts as a discrete exceptional circumstance: R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at paras. 4, 19, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon). As long as the Crown proactively made efforts to mitigate the delay, regardless of whether those efforts were successful, it was open to the trial judge to deduct pandemic-related delay.

[51] At first instance, the Crown asserted that the 40-day period from May 4 to June 12, 2022 inclusive should be characterized as pandemic-related delay because May 4, which had been fixed as a trial date, had to be vacated to accommodate another trial with delay issues, and the next available date at the time was June 13. The trial judge found that this was the case. The appellant does not take issue with the trial judge's deduction for pandemic backlog delay in relation to this period, except to the extent that these 40 days included a trial date (May 5) and overlapped with the trial judge's deduction for the Crown's involvement in the coroner's inquest (which also included June 10-12), such that it must be reduced from 40 days to 36 days (i.e., May 4 plus May 6 to June 9 inclusive).

(a) Positions of the Parties

[52] The Crown asserts that, because the trial judge erred in allocating delay in this case, including in respect of the delay attributed to the pandemic, it is appropriate for this court to reassess the period of delay caused by the COVID-19 backlog. The Crown relies on R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 71, leave to appeal refused, [2018] S.C.C.A. No. 325, to argue that it is not bound by an erroneous Crown "position" or "concession" in the court below. See also R. v. Long, 2023 ONCA 679, 431 C.C.C. (3d) 288, at para. 38. On this basis, the Crown contends that it can seek – and this Court can grant – further deductions for pandemic backlog delay that were not argued at trial as being this type of delay or any type of deductible delay.

[53] The Crown submits that this court should consider, in addition to the 36-day period already counted (May 4 and May 6 to June 9 inclusive), the 41-day period from July 1 to August 10, 2022 inclusive, which would bring the COVID-19 related delay to 77 days. The Crown also suggests that this court could deduct an additional 13 days between April 4 and 18, 2022 inclusive. This latter period is 15 days long, but a 13-day deduction would bring the pandemic-related delay to the 90 days that the trial judge indicated he would likely have granted if he had been asked to do so.

[54] The Crown submits that the record provides a fulsome evidentiary foundation for its request, pointing to the parties' scheduling correspondence with the trial coordinator, the trial judge's findings about pandemic backlog delay based on his experience as the local administrative judge in Renfrew County, and his "finding" that he would have granted 90 days had it been requested. The Crown asserts that, but for the delay and double-booking of other matters during trial days caused by the pandemic, the trial would have concluded in its original seven allocated days, and that all of the delays caused by the need for continuation days are therefore attributable to the pandemic.

[55] The appellant opposes the Crown's request that this court allocate additional time for the exceptional circumstance of the COVID-19 pandemic. The appellant emphasizes that the trial Crown "got what it asked for" in relation to pandemic backlog deductions and submits that the Crown should not use this appeal to request further such deductions based on arguments it did not make at first instance and in respect of which this court lacks the necessary evidentiary foundation. The appellant argues that the Crown is not simply seeking to withdraw a concession, but is raising an entirely new issue in response to this appeal. The appellant contends that the Crown has not met the test in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44, leave to appeal refused, [2016] S.C.C.A. No. 432, for raising a new issue on appeal, because "the evidentiary record [is not] sufficient to permit [this court] to fully, effectively and fairly determine the issue raised on appeal": Reid, at para. 43.

[56] As for the merits of the Crown's request, the appellant asserts that when the record is examined, it does not support the Crown's claim for additional deductions for pandemic-caused delay, but instead reveals other causes of the specific delays during the time periods relied on by the Crown.

(b) Analysis

[57] I would not accede to the Crown's request on appeal to allocate further time to pandemic-related delay as a discrete exceptional circumstance.

[58] First, I agree with the appellant that the Crown is not simply seeking to be released from an erroneous "position" or "concession". The trial judge was never asked to treat the period of April 4 to April 18 inclusive as pandemic backlog delay (rather, this was part of a longer delay the Crown sought unsuccessfully to attribute to the defence) or to treat the period from July 1 to August 10 inclusive as deductible delay of any kind. As such, the Crown, in seeking to have these periods characterized as pandemic backlog delay, is raising a new issue in response to this appeal.

[59] Second, although I have some reservations about the fairness of the Crown raising arguments in this court that could have been advanced in addition, or in the alternative, to the arguments at first instance, I do not agree with the appellant's central concern that the record is insufficient to permit the new issue to be determined. All of the transcripts and email exchanges between the court and counsel that are required to assess the Crown's new arguments were produced at first instance and are before this court. And in the circumstances of this case, where some pandemic-related delay was argued and accorded, and delays due to trial scheduling were front and centre at first instance, it would not be unfair to the appellant to determine the Crown's new arguments on their merits.

[60] Accordingly, the issue is whether the Crown has met its burden to establish that the additional deductions it seeks can be justified on account of the exceptional circumstance of the COVID-19 pandemic.

[61] "[T]here is no rule that all periods of delay during the COVID-19 pandemic, including those resulting from scheduling backlogs, should be attributed to exceptional circumstances": R. v. Kirkopoulos, 2024 ONCA 596, at para. 45; see also para. 47; Jones, at paras. 55-57; R. v. Kovacs, 2025 ONCA 49, 175 O.R. (3d) 401, at para. 14. The delay must be "attributable to the pandemic in some articulable sense": Agpoon, at para. 33; Kovacs, at para. 14; Jones, at para. 55. The cases emphasize the importance of a proper evidentiary foundation to establish pandemic-related delay as a discrete exceptional circumstance: Kirkopoulos, at para. 53.

[62] I pause to observe that there have been a number of cases where this court has upheld what appears to have been a general deduction for pandemic delay (rather than one tethered to one or more specific time period(s)) as appropriate in the circumstances: see, for example, R. v. A.N., 2025 ONCA 300 (60 days for delays arising from the impact of the pandemic on court scheduling); R. v. Dunnett, 2025 ONCA 392, 448 C.C.C. (3d) 122 (45 days); R. v. Balasubramaniam, 2024 ONCA 403 (60 days); R. v. Vrbanic, 2025 ONCA 151, 445 C.C.C. (3d) 430, appeal as of right filed, [2025] S.C.C.A. No. 78 (3 months).

[63] This court has not addressed what specific evidence is required to justify a general deduction. However, whether dealing with a general deduction or one tethered to a specific time period, our court has endorsed the importance of the application judge's or trial judge's knowledge of local conditions: in A.N., for example, the application judge relied on internal court information showing that "time-to-trial" had increased by two months due to the pandemic; and in R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, this court deferred to the trial judge having drawn upon her own knowledge of the culture of her court, and her conclusion that the pandemic played no role in the delay in setting the case down for trial. See also Vrbanic, at para. 66.

[64] I emphasize that, at first instance, the Crown adduced an email from the trial coordinator that the May 4, 2022 trial date was cancelled because that date was required for another case with delay issues and relied on it as evidence that the 40 days from May 4 to June 12 inclusive were linked to the COVID-19 pandemic. Although there was disagreement about whether this evidence was sufficient, there was no argument or reliance on any of the case law cited in the trial judge's reasons that would endorse a general deduction for COVID-19 delay. Similarly, on appeal, while the Crown seeks deductions that would add up to 90 days, this is not requested as a general deduction but is tethered to two specific periods: the 41-day period from July 1 to August 10, 2022 inclusive, and 13 of the days running from April 4 to 18 inclusive.

[65] I turn now to consider whether the evidence supports the additional deductions sought by the Crown.

[66] First, the Crown relies on the trial judge's detailed description of the impact of the pandemic on cases in Renfrew County and on this case in particular, and his "finding" that he would have granted a general 90-day deduction had it been requested. Without question, the trial judge was entitled to bring his own experience and knowledge of the local conditions to the evaluation of the Crown's argument about pandemic-related delay. However, his view that a general 90-day deduction would have been warranted was obiter. The trial judge did not make findings related to the specific periods in question, as he was not invited to do so. No general deduction was requested, nor is it requested here.

[67] Second, in relation to the period from July 1 to August 10, 2022 inclusive, the Crown asserts that, but for the delay and double-booking of other matters during trial days caused by the pandemic, the trial would have concluded in its original seven allocated days, and that all of the delays caused by the need for continuation days are therefore attributable to the pandemic.

[68] The Crown's assertions are not borne out by the record. While the trial judge noted that double and triple bookings were a fact of life during the pandemic, the evidence shows that at least some of the shortened days were caused by the need to accommodate witnesses.[^13] And, unlike May 4, which was pre-empted by another case with delay concerns, the loss of the June dates and the need to reschedule into August resulted from the Crown's involvement in the inquest. This is apparent from scheduling emails between counsel and the trial coordinator from June 1 to 5, the Crown's adjournment application relating to the trial dates of June 10 and June 13, and the transcript from the hearing of that application. The three August dates were set in a trial scheduling meeting on June 17 and confirmed by email on June 21.

[69] I would also observe that the record discloses that the trial judge advised the parties on June 6 that he had "two weeks at the beginning of July set aside for vacation that [he] really [could not] disturb", and that a few days earlier, the Crown declined several dates that the defence proposed for July and early August and provided no explanation for nine of these rejections. I raise these factors not to fault the trial judge or Crown counsel for their unavailability, but rather to flag that these additional causes of delay over the July 1 to August 10 period further undermine the position that the pandemic backlog was the reason for this period of delay. Finally, in respect of this period, I would observe that it would be wrong to include August 5, 9 and 10 in any calculation of exceptional circumstance delay, as they were trial dates.

[70] As for the period from April 4 to 18 inclusive (between the cancellation of the April 4-7 trial dates and the next scheduled date of April 19), in oral argument on the appeal the Crown simply asserted that "there was clearly an effort to triage" due to the pandemic, and that is why the dates that had been offered by the court were pulled back. The record does not support this assertion. According to an email from the trial coordinator dated June 14, 2021, the trial dates of April 4-7, 2022 were cancelled by the court because they had been offered prematurely: the judicial schedule for the year was not available to the trial coordinator or counsel when these dates were set.

[71] There is no question that the pandemic backlog placed significant pressure on the OCJ and its resources. The trial judge's reasons eloquently describe the fallout from the pandemic and the daily challenges the court was confronting in scheduling and conducting proceedings. I also do not doubt that the Crown and the court attempted to proactively mitigate delay by offering to give up chambers and preparation days, rescheduling personal appointments, and triaging other matters. Rejection of the Crown's request for additional deductions in respect of pandemic delay is not a rejection of the reality of the pandemic, its effect on the OCJ and its caseload, and the enormous efforts of the judiciary and court staff in response to the pandemic disruptions. As I have explained, the Crown's request must be rejected because the record before this court does not support granting deductions for additional specific periods as COVID-19 delay, which were requested for the first time on appeal.

[72] After correcting for deductions that should not have been made at first instance, the net delay in this case exceeds the Jordan threshold. The 18-month net delay limit for matters in the OCJ is a "hard backstop that offers certainty, predictability, and simplicity": R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 75. As this court observed in Long, at paras. 50-51, there is no exception for being "close".

F. Disposition

[73] For these reasons I would allow the appeal, set aside the appellant's convictions and stay the proceedings against the appellant.

Released: September 17, 2025

"K.M.v.R."

"K. van Rensburg J.A."

"I agree. S. Coroza J.A."

"I agree. B.P. O'Marra J. (ad hoc)"

Footnotes

[^1]: 2016 SCC 27, [2016] 1 S.C.R. 631.

[^2]: The Charter decision is reported at 2023 ONCJ 252.

[^3]: An appeal from the convictions based on uneven scrutiny was abandoned, pursuant to an email to the court on November 29, 2024, and an Amended Notice of Appeal was filed restricting the appeal to the s. 11(b) grounds.

[^4]: To foster clarity and precision, these reasons expressly indicate date ranges in their inclusive format. For example, the trial judge found that Crown counsel's involvement in a coroner's inquest qualified as an exceptional circumstance and warranted a 20-day deduction from the total delay in this case. The trial judge and the parties refer to this period as running from June 10 to June 30, 2022. These reasons designate this period as June 10 to June 29 inclusive, because June 30 was a trial date.

[^5]: The trial judge deducted, as pandemic backlog delay, a 40-day period (May 4 to June 12 inclusive) that overlapped significantly with the 26-day period of defence delay just noted (i.e., May 19 to June 13 inclusive). Both of these periods partially overlapped, in turn, with the trial judge's 20-day deduction (June 10 to June 29 inclusive) for the exceptional circumstance posed by the Crown's involvement in a coroner's inquest. I accept the Crown's concession in relation to the 26-day period from May 19 to June 13 inclusive: while the trial judge found that the defence declined two half-days offered by the trial coordinator (May 19 and June 8), in fact defence counsel indicated he was available on those dates and only expressed concern that they were half-days; five days later, Crown counsel indicated she was unavailable on May 19, June 8 and June 14 (the latter being the next date offered by the court, which defence counsel did not reject). Accordingly, the only double-counting addressed (and corrected) in the balance of these reasons is the three-day overlap between the pandemic backlog delay (May 4 to June 12 inclusive) and the coroner's inquest delay (June 10 to June 29 inclusive), i.e., so that June 10, June 11 and June 12 are not deducted twice.

[^6]: This 49-day period (i.e., from February 14 to April 3, 2022 inclusive) includes the two days waived by the defence (i.e., February 14 and 15). Accordingly, if the Crown succeeds on this issue (and only this issue), only 17 additional days would be deducted from the standing net delay of 571 days (i.e., 49 days minus 2 days waived by the defence, and minus the 30 days already deducted by the trial judge for defence delay = 17 additional days); the resulting net delay would still exceed the Jordan ceiling by 6 days (i.e., a net delay of 554 days, against a ceiling of 548 days).

[^7]: As I will explain, only 36 days of the 40-day period that the trial judge did deduct for the pandemic backlog can be upheld, because one of the 40 days was a trial date and three others were double-counted.

[^8]: While, on its face, defence counsel's statement "I won't bring an 11(b) in relation to the move from February to the new April dates" may appear to be a defence waiver of the delay running for the entire 49 days from February 14 to April 3 inclusive, the parties' submissions at the hearing of the s. 11(b) application make clear not only that the defence considered itself to have waived only two days but also that the Crown agreed this was the case. At the hearing of the appeal, the Crown emphasized that its position has always been that 49 days should be attributed to the defence, not because it was waived, but because it was defence-caused.

[^9]: In fact, the net delay at this point, on the trial judge's analysis, was 602 days. Again, this is because the total delay in this case was 660 days and not the 659-day figure relied on by the trial judge (660 days' total delay minus 58 days' defence delay = 602 days).

[^10]: I would also note that the Supreme Court released its decision in R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, on May 6, 2022, after six days of trial had elapsed in the instant matter. In J.F. the court made clear that s. 11(b) applications should generally be brought before trial and will be "considered late" when brought after trial: at paras. 30-37. The current practice direction relating to s. 11(b) applications in the OCJ came into effect on November 1, 2023; it requires such applications to be heard at least four months before trial unless the court directs otherwise.

[^11]: I note that, when combined with the two days waived by the defence, this represents 65 percent of the 49-day period in question, which is substantially higher than the apportionment in Jones.

[^12]: To get under the ceiling, the Crown must establish deductions that total at least 113 days. Upholding the deductions of 32 days for defence-caused and -waived delay and 57 days for exceptional circumstances, including 36 days of pandemic-related delay, the Crown requires at least 24 additional days of deductions.

[^13]: In addition to the day cut short due to a complainant's illness (April 21, 2022), the trial date of April 20, 2022 ended early because the same complainant indicated she wished to stop and to continue testifying the next day, and the trial date of August 5, 2022 began late in order to accommodate two witnesses who were testifying remotely from Alberta.