Court of Appeal for Ontario

Date: 2026-02-19 Docket: COA-24-CR-0463

Tulloch C.J.O., Copeland and Madsen JJ.A.

Between

His Majesty the King — Respondent

and

Abdirazak Ibrahim — Appellant

Counsel:

Howard L. Krongold, for the appellant

Genevieve McInnes, for the respondent

Heard: January 21, 2026

On appeal from the convictions entered by Justice Salvatore Merenda of the Ontario Court of Justice on September 11, 2023.

Reasons for Decision

[1] The appellant was convicted of two counts of possession of cocaine for the purpose of trafficking, one count of simple possession of oxycodone, and one count of possession of the proceeds of crime.

[2] The information was laid on June 24, 2021, and the trial concluded on September 6, 2023, 805 days later. [^1] After conviction, the appellant brought an 11(b) application. In a careful review of each step in the proceedings, the trial judge determined that 424 of the total 805 days was defence delay, bringing the net delay just over ten and a half months, below the ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The sole issue on this appeal is whether the trial judge erred in dismissing the appellant's 11(b) application.

[3] The proper characterization of delay and whether there has been unreasonable delay is reviewable on a standard of correctness. The underlying factual determinations are owed deference: 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.

[4] The trial dates were scheduled in March 2022 for six days in late May and early June 2023, as a blended trial and Charter voir dire. As a result, when it was scheduled, the trial was anticipated to end just over 23 months after the laying of the information. It was not disputed that there was no 11(b) concern raised by either the Crown or appellant until the third day of trial, May 31, 2023, when it became apparent that the trial would not conclude on time and that further days were required. At that point the gross delay was 706 days, and the appellant expressed concern that the proceeding was already over 18 months. The trial had been scheduled for six days, but the judge assigned to the trial was only available for three of the scheduled dates, necessitating a 28-day adjournment to June 28, 2023. The appellant's 20-ground Charter application, which did not include the 11(b) argument, was dismissed August 21, 2023. The appellant then immediately advised that he would bring an 11(b) application, which he said would require two and a half to three months to prepare.

[5] Although the appellant argued before the trial judge that there were no periods of defence delay, on appeal, he acknowledges some defence delay. He asserts, however, that the trial judge mischaracterized five discrete time periods and says that, properly analyzed, the trial concluded 92 days over the Jordan ceiling, such that he is entitled to a stay. Specifically, the appellant argues that the trial judge mischaracterized: 1) 30 days of the intake period; 2) the 432-day period between the setting of trial dates and the first day thereof, of which 50 percent, or 216 days, was found to be defence delay; 3) the 28-day period required to secure additional trial-time; 4) 54 days of interlocutory deliberation time on the appellant's Charter application; and 5) a double-count of the final deliberation time of 5 days.

[6] We are of the view that the trial judge did not err in apportioning 216 days, half of the 432 days between when the trial dates were set and the anticipated end of the trial, as defence delay. As a result, it is not necessary to address the other four time periods raised by the appellant. Even assuming the appellant is correct about the other four time periods he challenges, the net delay is well under the ceiling after deducting the 216 days and the periods the appellant accepts as defence delay.

The 432-day period

[7] In oral argument, the appellant focused specifically on delay caused when the trial was adjourned to secure additional trial time. Had the court had a judge available, the appellant argued, "we would not be here."

[8] This argument rests on the appellant's submission that none of the 432-day period between March 22, 2022, and May 29, 2023, ought to have been found to be defence delay. He submits that, notwithstanding the projected gross delay of 706 days when trial dates were set, there was no anticipated Jordan breach at that time. He could not, therefore, be faulted for not bringing his 11(b) application earlier. Delay, he argues, only became unreasonable when it became apparent that the trial would not conclude on time. He asserts that he was not obliged to bring a "meritless" 11(b) application. We note that this argument is at odds with the position taken on the application that there had been no defence delay.

[9] The trial judge made several findings of fact, owed deference on appeal, which are fatal to the appellant's position with respect to this time-period:

a. that former and current counsel should have been aware, in March of 2022, that the trial dates were set beyond the Jordan ceiling, yet the appellant did nothing to attempt to mitigate the delay;

b. that this was not a case where an infringement or potential infringement of the 11(b) right revealed itself only once the trial began, rather, the appellant was "hiding in the reeds";

c. that the appellant demonstrated "no wish to be part of the solution to the problem of delay" and "adopted a strategy to wait in silence until well after the 18-month Jordan ceiling had been tightly locked in"; and,

d. that it "defie[d] credulity that an applicant who initially raised 20 allegation[s] of Charter breaches would not know that there was an 11(b) issue looming in this case", yet nothing was said until after the trial was almost complete.

[10] The trial judge determined that the appellant's inaction during the 432-day period amounted to "illegitimate conduct": R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 33. He emphasized that both the Crown and the defence had a duty to cooperate and "do what they could have done to adhere to the Jordan ceiling". In the circumstances, he ascribed responsibility for the 432-day delay equally to the Crown and defence: 216 days each. On the record, he concluded that equal apportionment was the fair and reasonable approach.

[11] We see no error in the characterization of the 432-day period as equally attributable equally to the Crown and defence. Having found that the appellant's conduct in not raising the s. 11(b) issue earlier was, in the circumstances, illegitimate conduct, the trial judge was entitled to apportion some of the 432 days as defence delay: R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at paras. 8-10. The trial judge appropriately considered "[a]ll relevant circumstances ... to determine how delay should be apportioned among the participants": R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1, at para. 9; Boulanger, at para. 8.

Conclusion

[12] The gross delay was, as indicated, 805 days. The appellant acknowledged delay of 165 days. The delay apportioned to the appellant for half of the time between when the trial dates were set and the anticipated end of the trial totaled 216 days. Subtracting both of these periods from the gross delay brings the net delay to 424 days, 123 days under the Jordan ceiling. No argument was made that this was a case where under-the-ceiling delay justified a finding of unreasonable delay.

[13] The appeal is dismissed.

"M. Tulloch C.J.O." "J. Copeland J.A." "L. Madsen J.A."

[^1]: The Crown states that the gross delay was 805 days. The defence states that the gross delay was 804 days. Nothing in this decision turns on this disparity.