R. v. Atherley

2025 ONCA 805

COURT OF APPEAL FOR ONTARIO

DATE: November 21, 2025

DOCKET: COA-23-CR-0610

Sossin, Copeland and Gomery JJ.A.

Parties

BETWEEN:

His Majesty the King -- Respondent

and

Stephen Jason Atherley -- Appellant

Counsel

Alexander Ostroff, for the appellant

Adrianna Mills, for the respondent

Heard

Heard and rendered orally: November 20, 2025

On appeal from the convictions entered by Justice Harrison S. Arrell of the Superior Court of Justice, on November 16, 2022.

Reasons for Decision

[1] The appellant appeals from conviction on the ground that the application judge erred in dismissing his application for a stay of proceedings based on unreasonable delay.

[2] We agree with the appellant that the time from when the second trial date was set until the first of the offered trial dates that the appellant's trial counsel was available should have been apportioned, rather than all treated as defence delay. However, in our view, the time from the July 2022 proposed trial date to the second trial date should be treated as defence delay. This apportionment reflects the defence rejection of two proposed trial dates and a reasonable period for counsel to be available following the mistrial.

[3] Counting only the time from the July 2022 proposed trial date to the second trial date as defence delay, together with the other time periods deducted by the application judge, the net delay measured in days comes in just under 30 months. It was not argued that under the threshold delay justified a stay in this case.

[4] The appeal is dismissed.

"L. Sossin J.A." --- "J. Copeland J.A." --- "S. Gomery J.A."