Ruling
Date: April 25, 2025
Information No: 23-61101423-00
Court: Ontario Court of Justice
Parties: His Majesty the King v. Ravinder Brar
Before: Justice B.E. Pugsley
Location: Orangeville, Ontario
Appearances:
- S. Khan, Counsel for the Provincial Crown
- C. Melo, Counsel for Ravinder Brar
Pugsley, J. (Orally):
Ravinder Brar faces two drink drive related counts. Counsel and the court agree that two days are required for his trial. Currently, his trial is scheduled to commence on June 23, 2025, for day one, and October 7, 2025, for day two.
The defendant's information was sworn on September 28, 2023. On its face, this matter exceeds the guidelines set out by the Supreme Court of Canada in Regina v. Jordan.
In this court, the trial should complete within 18 months under Jordan. Here, if the trial ends as scheduled, the total time is more than 24 months.
The defendant has applied for a stay of proceeding based upon a breach of his right to a trial within a reasonable time, guaranteed by paragraph 11(b) of the Canadian Charter of Rights and Freedoms.
In their clear and effective facta, Crown and Defence have set out their respective views of how the 24 months, here, should be characterized. I am grateful for their clarity.
On its face, the matter would seem clear: 24 months is greater than 18 months set out in Jordan. Parties correctly, however, recognize that the assessment here is not that simple.
Mr. Brar had a two-day trial scheduled for December 30 and 31, 2024. That is within, roughly, 15 months and two weeks of the swearing of the information here. In other words, within the Jordan parameters. About a month before his trial, he discharged his counsel and asked for his trial to be adjourned.
On November 14, 2024, the presiding justice, the local Administrative Judge, Justice Schwarzl, removed Mr. Brar's then counsel from the record and considered Mr. Brar's request to adjourn his upcoming trial. That request was granted given Mr. Brar's express waiver of delay until his next trial date. His former counsel, present at the time, confirmed that he had advised Mr. Brar on the consequences of such a waiver before it was made.
The Applicant concedes the waiver but also notes that when new counsel acted to set a new trial date, very few dates were offered by the trial coordinator, and of those dates, the Crown was not available for some of the earlier dates. In the end, June 23, 2025, and October 7, 2025, were scheduled together with today for the 11(b) Application.
There is no doubt that the waiver of delay made on November 14, 2024, was made clearly and by an informed decision by Mr. Brar to waive his time to trial right. Mr. Brar could have had his trial on December 30 and 31, 2024. By his request to adjourn that trial, those Jordan compliant dates were given up by Mr. Brar and assigned to other deserving litigants.
The Applicant is therefore left alleging an overall delay of roughly 16 months when defence 11(b) express or implied waivers are considered.
The Applicant submits that an 11(b) stay is, nonetheless, still appropriate under the residual discretion set out in Jordan, to stay a case where it falls below the Jordan guidelines.
It is submitted that the defendant was diligent and this was a simple drink drive offence, with other Charter aspects perhaps, and 16 months delay in and of itself should cause a stay under section 24 of the Charter in the discrete circumstances of this case. And notably, because the Orangeville Court is clearly under-resourced.
The Crown submits that on their characterization of each appearance the delay may be as low as 14 months once delay attributable to the defence, they argue, is removed.
On either submission, I am faced with a net delay after admitted defence delay, below the Jordan guidelines for the Ontario Court of Justice.
Case law on stays that are below the limit, set out in Jordan by the Supreme Court of Canada, are widely varied based on the facts of each case. From my perspective and experience, successful defence stay applications have been rare and have been based on facts far different from those here. In the past, such cases have engaged extreme and continued diligence by the defendant in pursuing an early trial date, complicated by delayed and sometimes grossly delayed vital disclosure.
Further, it is increasingly unusual to describe a two-day drink drive trial as one that is a simple case. A simple Over 80 case, in the early days of the Charter, would often take less than a day. Now, virtually all drink drive cases engage labyrinthine and esoteric Charter arguments as a matter of routine, and two-day trials have become normalized.
The original trial dates here, expressly given up by the defendant, were just over 15 months from the date when the information is laid. A couple of weeks less than the 16 months I am now urged to find to be Charter non-compliant.
There was no suggestion in the context of that previous trial scheduling journey, that 15.5 month delay, on these facts, represented a section 11(b) breach. I recognize that different counsel may have different views on what might lead to a sub-Jordan 11(b) breach, but observe that 11(b) applications that are below the Jordan limit are very rare and unusual.
In this case, on its face, 24 months is a long 11(b) delay and warrants examination by this court. At the time when today was set aside to hear the 11(b) application, perhaps the full clarity of the defendant's express waiver on November 14, 2024 was not known, at least until the transcript was received.
In the face of that clear and informed waiver, the 24 month delay starts to come into focus. Mr. Brar was about to have his trial within the Jordan guidelines. He and his lawyer parted ways and he asked to adjourn the trial. The price of doing so was a wide-based 11(b) waiver.
I agree that an adjournment with such an 11(b) waiver is not thereafter a licence to forget about 11(b) and Jordan thereafter. The difficulty, however, is that by seeking an adjournment on such terms, so close to trial, the defendant essentially required the Crown, the police, the witnesses, and the court to start from scratch. Staff absences, Crown absences, police leave dates, judicial holidays and the like, all reared their heads again. The pot of dates carefully explored when the first two trial dates were set, was emptied and refilled numerous times in the interim. All of which were caused by the defendant's decision to give up his original trial dates. It ill behooves the defendant to now say, sure, I have created the delay, but that very delay is so egregious that my trial should never take place at all.
I have explored the historical path that 11(b) litigation has travelled in the past, in other cases I have decided, and I will not impose on counsel by doing so again today. Suffice to say, that I practiced during the Askov era, and argued as counsel, and applied as a Judge, the pre-Jordan 11(b) regime, where each individual appearance and date, and every word was parsed by the Crown and Defence, to try and allocate delay between the parties and the court. Jordan, in my view, was designed to expressly end that often lengthy practice. Eighteen months was set as the limit. And while the door was left open a crack, to consider cases that fell under the 18 months limit, such cases were expected to be rare.
In effect, the court wanted to provide a bright line, cut-off time, to stop the old Morin style assessment, which wasted so much time in the courts.
This case is not a rare case where a stay should be provided based on an admitted delay falling short of the Jordan 18 month deadline.
A defendant who expressly gave up his Jordan compliant trial dates can hardly be said to have acted diligently to push forward his trial. The right to a trial within a reasonable time is Mr. Brar's right to stand by or to waive, as Mr. Brar indeed believes is best.
In this case, he unequivocally waived that right, and he forced the system to revamp the trial date process to fit him back in with the multitude of other deserving litigants as best the parties and the court could. This, I find, is the opposite of the sort of diligence that can cause that rare circumstance where a stay below the Jordan bright line should be granted.
In this case, the issue of good, adequate or poor systemic resources in Orangeville is not really applicable. The first trial date was well within Jordan, and given the waiver, so was the second trial date, given that the court had to reinsert Mr. Brar back into the trial date stream.
I therefore find no section 11(b) breach here and in the result, in spite of the able and focused submissions of counsel, this application is dismissed.
Certificate of Transcript
Form 3
Electronic Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Barbara Thompson, certify that this document is a true and accurate transcript of the recording of, Rex v. Ravinder Brar, in the Ontario Court of Justice, 10 Louisa Street, Orangeville, Ontario, taken from Recording No: 0611 102 20250425 092921 6 PUGSLEB, which has been certified in Form 1.
May 16, 2025
Barbara Thompson, A.C.T.
(Date) Electronic Signature of Authorized Person
A.C.T. #6014683207, Ontario, Canada.