ONTARIO COURT OF JUSTICE
DATE: 2025-06-26
COURT FILE No.: Halton Infos #998 24 12103700, 1211210 3328, 21-986
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRIAN KUMAR
Before Justice Jennifer Campitelli
Heard on April 10, 2025 and May 30, 2025
Reasons for Judgment released on June 26, 2025
N. Chiera — counsel for the Crown
J. Kushnir — counsel for the accused Brian Kumar
Reasons for Judgment
CAMPITELLI J.:
[1] Mr. Kumar was arrested and charged with three counts of fraud over $5000 on March 17, 2021. Information number (21-986) was sworn on April 20, 2021, and reflects those counts. On October 7, 2021, Mr. Kumar was charged with an additional eight counts of fraud over $5000. The information related to those counts was sworn on November 16, 2021 (1211210 3328). On November 12, 2024, a replacement information was sworn joining all counts (998 24 12103700). All three informations are currently subject of this application.
[2] Mr. Kumar argues that his rights as protected by section 11(b) of the Canadian Charter of Rights and Freedoms have been violated in that he has not been provided with a trial within a reasonable time. Mr. Kumar asks me to stay these proceedings as a result.
[3] Following the initial information being sworn on April 20, 2021, there was an intake phase where Mr. Paquette appeared for Mr. Kumar and asked for time to review disclosure. However, of note, on this record, the defence review of disclosure fell outside what would normally be considered a typical intake period, which would have ended on July 13, 2021. Rather than moving the matter forward, defence counsel requested time to review disclosure and adjourned the matter for that purpose between July 13, 2021, and September 14, 2021 (63 days). At that point in time, the defence engaged in a series of 11(b) waivers, again asserting additional time was required to review disclosure and prepare related correspondence. Those waivers continued until December 7, 2021, with respect to information (21-986) (84 days).
[4] On November 16, 2021, information (1211210 3328) was sworn, and Mr. Kumar began appearing separately from his appearances related to information (21-986). The intake process with a view to this information again extended beyond the traditional intake period, which would have ended on February 8, 2022. After that point in the proceedings, Mr. Kumar began requesting the matter be adjourned citing additional disclosure, the necessity to prepare and serve a Stinchcombe application, and a desire to retain counsel. Those defence requested adjournments continued from February 15, 2022, until December 6, 2022 without an explicit 11(b) waiver (294 days). Within that timeframe, both informations first appeared together, on April 12, 2022.
[5] On December 6, 2022, Mr. Micheli appeared on Mr. Kumar’s behalf and indicated that Mr. Kumar was still in the process of perfecting his retainer, and disclosure was being reviewed. He requested the matter be adjourned to February 14, 2023, and explicitly waived 11(b) (70 days).
[6] Both informations next appeared on February 14, 2023. When they were addressed, Mr. Kumar was no longer on the line. The relevant transcript suggests he was required in another courtroom; however, his instructions were to adjourn the matter for two months, until April 11, 2023, with an 11(b) waiver. The Crown opposed his request because of his absence, and the matter being dated. A bench warrant was issued but endorsed for Mr. Kumar’s release. His matter next appeared on February 21, 2023 (7 days).
[7] On February 21, 2023, Mr. Kumar appeared in court, advised that he was in the process of retaining Mr. Micheli, and requested his matter be adjourned. Between this date and July 7, 2023, both informations are adjourned for the purpose of Mr. Kumar retaining Mr. Micheli with explicit 11(b) waivers. The court is advised that Mr. Micheli is partially retained (136 days).
[8] Both informations appeared before Justice Puddington in a case management court on July 7, 2023. Against Mr. Kumar’s objection, and his request for a longer adjournment with an explicit 11(b) waiver, Justice Puddington scheduled a self-represented judicial pre-trial on July 14, 2023.
[9] On July 14, 2023, Mr. Kumar appeared with Mr. Micheli, who assisted him as a friend of the court for a self-represented judicial pre-trial before Justice Nadal. Following that pre-trial, Justice Nadal noted Mr. Kumar was anxious to retain Mr. Micheli, and the pair shared a history. Justice Nadal accepted Mr. Kumar’s explicit 11(b) waiver and adjourned both informations to September 20, 2023, for a continuing judicial pre-trial (68 days).
[10] Both informations then appeared on September 20, 2023 before Justice Latimer for a continuing judicial pre-trial. At that time, Mr. Kumar advised Justice Latimer that he was in the final stages of perfecting Mr. Micheli’s retainer prior to additional charges, unrelated to this application, coming to light. Mr. Kumar requested all matters return on November 15, 2023, to provide Mr. Micheli with an opportunity to prepare himself and potentially resolve some of the outstanding matters. Justice Latimer asks Mr. Kumar if he is personally agreeable with the requested adjournment; notwithstanding, it will cause a “bit of delay in your case”. Mr. Kumar responds, “that’s fine” (57 days).
[11] On November 15, 2023, another judicial pretrial was scheduled before Justice Puddington on December 19, 2023. On December 19, 2023, Mr. Kumar attended and advised that Mr. Micheli was going to appear and was largely retained. However, Mr. Kumar advised Justice Puddington that Mr. Micheli was delayed by a criminal matter in Walkerton. As such, Mr. Kumar requested to adjourn both informations to January 30, 2024 with an explicit 11(b) waiver (76 days).
[12] Both informations appeared on January 30, 2024 before Justice Latimer, where he scheduled another self-represented judicial pre-trial on February 23, 2024. Mr. Micheli was present; however, he was not in a position to confirm he was able to represent Mr. Kumar. As such, Justice Latimer scheduled the matter to proceed to judicial pre-trial on the earliest date available to the assigned Crown; notwithstanding, the date selected conflicted with Mr. Micheli’s vacation schedule. This adjournment must be considered against the appropriate backdrop. A self-represented judicial pre-trial had already been scheduled by Justice Puddington on July 7, 2023, it was held before Justice Nadal on July 14, 2023, and a continuing self-represented judicial pre-trial was then adjourned before Justice Latimer at the request of Mr. Kumar. As a result, I find any ongoing delay caused by the scheduling and re-scheduling judicial pre-trials after July 14, 2023, to be defence-caused delay (24 days).
[13] On February 23, 2024 Mr. Kumar appeared for a self-represented judicial pre-trial, which took place before Justice Puddington. Mr. Kumar indicated that he was still in the process of retaining Mr. Micheli, and expressed to Justice Puddington that it was his intention to have a trial in the Superior Court of Justice, with a preliminary hearing. As such, a five-day estimate was reached with respect to a preliminary hearing. However, Mr. Kumar was not formally put to his election. The matter was remanded for the purpose of scheduling preliminary hearing dates and next appeared on March 15, 2024. On that date, Mr. Kumar was advised his preliminary hearing scheduling had to occur through a specialized process, as dates were being set on a with or without counsel basis, albeit keeping Mr. Micheli’s schedule in mind. Both informations were then adjourned several times for the purpose of Mr. Kumar scheduling the five days for the preliminary hearing estimated by Justice Puddington. At this point in the proceedings, Mr. Kumar expressed a desire to consult with Mr. Micheli before formally being put to his election. On April 23, 2024, Mr. Kumar is directed back before Justice Latimer on April 26, 2024 (63 days).
[14] Mr. Kumar appeared before Justice Latimer on April 26, 2024, and he advised the court that he was very close to retaining Mr. Micheli. Mr. Kumar expressed a desire to consult with counsel prior to making a formal election, and explicitly waived 11(b) for that purpose. Justice Latimer provided Mr. Kumar with that opportunity, and the matter was adjourned to June 6, 2024. On June 6, 2024, Mr. Kumar appeared before Justice Latimer and communicated his retainer of Mr. Micheli was imminent. In fact, he anticipated the funds being secured by Monday. Of note, June 6, 2024, was a Thursday. Justice Latimer agreed to adjourn both informations to June 13, 2024, with Mr. Kumar expressing he was “happy to provide an 11(b) waiver” (48 days).
[15] Mr. Micheli appeared on June 13, 2024 and expressed that he had been retained for a “limited scope” just eight minutes prior to 1:00 p.m. that day. Mr. Micheli advised Justice Latimer that his retainer included the review of disclosure and requested four weeks for that purpose. Mr. Micheli also suggested he might possibly conduct a Crown pre-trial. As a result, the matter was adjourned to July 24, 2024, with Justice Latimer specifically noting that the matter had been in the case management process “too long”. This adjournment request must be considered bearing in mind that Mr. Micheli first appeared on this record on December 6, 2022, and advised the court at that point in time that disclosure was being reviewed. That being some eighteen months prior to June 13, 2024. On December 6, 2022, both informations had been sworn and were appearing in court together. Consequently, I find this request for additional time to review disclosure material to be defence-caused delay (41 days).
[16] Both informations appeared before Justice Latimer for a judicial pre-trial on July 24, 2024 with Mr. Micheli assisting Mr. Kumar. Mr. Kumar elected to have a trial in the Superior Court of Justice with a preliminary hearing, and his election was formally noted. The matter was adjourned with discussion of an 11(b) waiver to August 20, 2024, with scheduling process apparently happening in the background. However, when Mr. Kumar appeared on August 20, 2024, he advised the court that he wished to alter his election and proceed to trial in the Ontario Court of Justice. As such, both informations were remanded back before Justice Latimer on August 30, 2024, where Mr. Kumar confirmed his intention to re-elect and proceed to trial in the Ontario Court of Justice. This, notwithstanding the transcript reveals that dates had already been scheduled. Justice Latimer acceded to Mr. Kumar’s request, vacated the previously scheduled dates, and noted his re-election. But he also remarked that Mr. Kumar had engaged in “six or seven months of pre-trial” process, having “engineered” a number of dates to set preliminary inquiries. Then, requested that the court “scrub” the related process, and re-set dates in the Ontario Court of Justice. Mr. Kumar expressed that he had not engineered any of the process. However, Justice Latimer commented, “it certainly looks like it from this perspective”. After thoroughly reviewing all the relevant transcripts, I agree with my former colleague. I find all the delay occasioned by Mr. Kumar re-electing his mode of trial to be defence deductible delay, whether there were explicit 11(b) waivers or not. Ms. Kushnir appeared for Mr. Kumar on September 19, 2024, and the matter was then scheduled for yet another judicial pre-trial given Mr. Kumar’s re-election on October 9, 2024. That judicial pre-trial took place on October 18, 2024 (77 days).
[17] On October 18, 2024 Ms. Kushnir appeared before Justice Latimer and conducted a judicial pre-trial on Mr. Kumar’s behalf. The matter was remanded for the purpose of scheduling trial dates in the Ontario Court of Justice to November 12, 2024. On November 12, 2024, the joint information is before the court (998 24 12103700), a Stinchcombe application, an 11(b) application and trial dates are all scheduled. The date the matter is scheduled to complete in the Ontario Court of Justice is October 9, 2025.
The Legal Framework:
[18] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada addressed the unduly complex nature of the Morin framework, highlighting that courts must avoid failing to see the “forest for the trees”: Jordan supra. at para. 37 (SCC) citing R. v. Godin, 2009 SCC 26 at para. 18 (SCC). The court also identified a “culture of complacency” towards delay, which had emerged within the criminal justice system: Jordan supra. at para. 40. The court found that the Morin framework did not address this “culture of complacency”, as delay was either condemned or rationalized at the “back end”, which did not encourage police, Crown counsel, defence counsel, courts, provincial legislatures and Parliament to address inefficient practices and resourcing problems: Jordan supra. at para. 41 (SCC).
[19] In response, the Supreme Court of Canada introduced a new 11(b) framework setting the presumptive “ceiling” in the Ontario Court of Justice at 18 months. If the total delay from laying the charges to the actual or anticipated end of the trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the onus falls to the Crown to establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow: Jordan supra. at para. 46 and 47 (SCC).
[20] Defence delay has two components. First, is delay waived by the defence. Waiver can be either implicit or explicit; but it must be clear. The second component of defence delay is delay caused solely by the conduct of the defence. For example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. However, defence actions legitimately taken to respond to the charges fall outside of the ambit of defence delay. Defence must be allowed preparation time, even where the court and the Crown are ready to proceed: Jordan supra. at paras. 61, 63 and 64 (SCC).
[21] Exceptional circumstances are not rare or entirely uncommon. However, they lie outside of the Crown’s control in that, “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating for those circumstances once they arise”. The Crown must show that it took reasonable and available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes, seeking assistance from the defence to streamline evidence or other appropriate procedural means. The Crown is not required to show that the steps it took were ultimately successful; rather, just that reasonable steps were taken in an attempt to avoid the delay: Jordan supra. at paras. 69-70 (SCC).
Analysis:
Calculating the Total Delay
[22] Mr. Kumar takes the position that the total delay in this matter should be calculated from the date the first information was sworn, April 20, 2021. He argues there is a sufficient nexus between the counts on both informations, and points to the fact that all of the charges he must answer to result from the same ongoing police investigation. Mr. Kumar stresses the Crown has chosen to proceed on a joint information and thus, the calculation of delay ought not be bifurcated.
[23] I do not find that there is any binding authority in this area, which directs my analysis. Rather, I find that each case turns on its own individual factual record. Relevant factors may include: any nexus between counts, similarity of delict, the nature and number of transactions associated with each count, and the seriousness of the alleged charged conduct when considered across counts. On this particular record, I find that there is a sufficient nexus between these counts such that the total delay will be calculated from April 20, 2021. The counts on the joint information all allege the same criminal conduct and were all borne out of the same ongoing criminal investigation.
[24] The parties agree that the total delay between the time when information (21-986) was laid, and the estimated completion of Mr. Kumar’s trial is 1634 days. The parties also agree that the presumptive ceiling, calculated on this record, is 547.2 days, or eighteen months. Therefore, the total delay exceeds the presumptive ceiling in the Ontario Court of Justice.
Calculating the Net Delay
[25] The net delay is calculated by subtracting any defence caused delay from the total delay. Defence delay is subtracted because “the defence should not be allowed to benefit from its own delay-causing conduct”: Jordan supra. at para. 60 (SCC).
Was there any delay waived by the defence either expressly or implicitly on this record? Additionally, is there any delay, which lies at the feet of the defence on this record?
[26] Mr. Kumar candidly acknowledges that there was delay explicitly waived on this record, in addition to defence-caused delay. However, he asks me to vitiate any waivers of 11(b), arguing they were not properly informed because of the Crown’s altering positions on outstanding disclosure. Disclosure, which was ultimately produced to Mr. Kumar. Moreover, Mr. Kumar submits that the defence-caused delay on this record ought to have been managed by the case management process and mitigated. He takes the position that this record demonstrates a problematic “culture of complacency”, stressing the system did not do enough to mitigate the compounding delay before it exceeded the ceiling.
[27] It is not disputed between the parties that the investigation, which resulted in the charges subject of this application, was initiated in the context of an unrelated prosecution involving Mr. Kumar. The Crown also concedes that material connected with the unrelated prosecution involving Mr. Kumar is relevant to the allegations subject of this application, and disclosable. This was not the position taken by the Crown in March of 2022, and it is the Crown’s altering position regarding this specific disclosure material that Mr. Kumar argues renders fifty percent of his 11(b) waivers uninformed. I disagree. What is clear when the entire record is reviewed is that Mr. Kumar was aware of both the existence and nature of the outstanding disclosure. Moreover, Mr. Kumar refers to the need to schedule a Stinchcombe application relative to outstanding disclosure as early as February of 2022. It is not for me, as I decide this application, to weigh the merits of any possible Stinchcombe application. Rather, I must determine whether Mr. Kumar was aware of the outstanding disclosure when he explicitly waived 11(b) such that he was engaging in those waivers from a voluntary and informed perspective. I find that he was. The material had been specifically requested and referenced in correspondence exchanged between the parties. Additionally, the Crown took a position relative to the outstanding disclosure material in March of 2022, indicating it would not be produced. At that point in the process, Mr. Kumar, who disagreed with the position taken by the Crown could have scheduled a Stinchcombe application. An application he was clearly aware of and referenced in February of 2022, yet scheduled in November of 2024.
[28] Mr. Kumar also argues the case management process did not do enough to mitigate the compounding delay on this record. Consequently, he asks me to characterize a significant amount of delay caused by his repeated requests for adjournments in various case management courts as non-deductible. Mr. Kumar takes the position that there was a “culture of complacency” present on this record, which allowed both informations to exceed the ceiling. Again, I disagree. We must be careful not to conflate compassion with complacency. Mr. Kumar was not a self-represented litigant who was lost in the criminal intake process. In direct contrast, Mr. Kumar was a litigant who appeared frequently with the assistance of counsel or articulately communicated instructions that he maintained had been provided to him by counsel. Mr. Kumar characterized his retainer of Mr. Micheli as being in the final stages on numerous occasions. He made it seem imminent, at one point, expressing his retainer of Mr. Micheli was mere days away. I have the benefit of reading the transcript of one proceeding before immediately reading the next. This is a benefit my colleagues were not afforded as they presided over this matter. They were not able to see, as I am, that Mr. Kumar was calculated in his approach to each court appearance. Carefully and articulately repeating his submissions, making it appear as though his retainer of Mr. Micheli was imminent, with no actual result being achieved in the background. I am not persuaded that it was incumbent on my colleagues to press Mr. Kumar forward in a self-represented fashion. Particularly, taking into consideration his repeated assertions, and keeping the nature of the prosecution he must ultimately answer to front of mind. Respectfully, I simply do not see that a “culture of complacency” emerged on this record.
[29] What I do see is that Mr. Kumar was the author of this delay, he engineered it. He expressed absolutely no desire to move his matters expeditiously through the case management process, in fact, quite the opposite. He delayed these matters intentionally, and repeatedly so that he could fully retain counsel to represent him, which he has now facilitated. It is through this lens that the entire record in this matter must be viewed.
[30] I appreciate that considering the period of delay globally, may also involve assessing the conduct attached to each information independently. This will not always be the case; however, on this record, there was an obvious period of overlap after the second information was laid on November 16, 2021. Each information appeared separately, and remained siloed in its process, until the informations began appearing together on April 12, 2022. Significantly, deducting the period of explicit 11(b) waiver attached to information (21-986) during this period has the net effect of compressing the intake period inevitably allotted to information (1211210 3328) in the overall calculation of delay.
[31] I have considered this overlap carefully and contextually, and on this evidentiary record, I find compression of the total intake period characterized as non-deductible delay can be reconciled for two reasons. First, when I consider this issue against the backdrop of Mr. Kumar’s arguments in support of the total period of delay being calculated globally, I find the nexus between counts, and their stated connection to the same ongoing police investigation is relevant. There is obvious overlap with respect to the disclosure material, which serves to compress the overall intake period required across all counts globally. Second, as stated previously, Mr. Kumar expressed absolutely no desire to expedite his matters through the case management process. Even if a traditional intake phase is contemplated with a view to either information, the defence caused delay far exceeded any acceptable period of review and was then followed by explicitly waived delay. Moreover, it must be remembered that notwithstanding the intake period may appear compressed with a view to information (1211210 3328), Mr. Kumar still receives the benefit of the non-deductible delay attached to information (21-986) in the total calculation. Again, these informations are being considered globally.
[32] Given the overall conduct of Mr. Kumar and counsel prior to Ms. Kushnir, I find it is appropriate to deduct all explicitly waived or defence-caused delay from the total period of delay on this record. Non-deductible delay will be allotted for a compressed amount of global intake, the time required to schedule one judicial pretrial on July 7, 2023, and the time required to schedule trial dates in the Ontario Court of Justice on October 18, 2024.
Conclusion:
[33] In the result, the total delay is 1634 days. The defence delay to be subtracted (explicitly waived and defence-caused) is 1108 days, leaving the net delay at 536 days (17.3 months). Therefore, the delay in this matter does not exceed the ceiling outlined in R. v. Jordan, and I do not find it to be unreasonable on this record. Mr. Kumar’s rights as protected by Section 11(b) of the Canadian Charter of Rights and Freedoms have not been violated. Mr. Kumar’s application is dismissed, and these matters will proceed to trial.
Released: June 26, 2025
Justice Jennifer Campitelli