WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 22, 2025

Court File No.: 22-2743-00 | Peel Region

Between:

His Majesty the King

— and —

R.S.

Before: Justice S. Robichaud

Heard on: August 7, 2025, Courtroom 110

Reasons for Judgment released on: August 22, 2025

Counsel:

• Eugene Wong, counsel for the Crown
• Allison Craig, counsel for the accused R.S.

Contents

1. The Jordan framework
2. A charted history of the proceedings
3. Attributable defence delay
4. The silence of defence counsel on "above ceiling" trial dates
5. A stay was warranted at the anticipated end of the first trial dates
6. The trial-coordinator's policy requiring the defence to schedule new dates
7. The DSF application
8. Exceptional circumstances
9. Conclusion

Reasons for Judgment

S. ROBICHAUD J.:

Introduction

[1] The accused R.S. is charged with one count of sexual assault and one count of assault relating to an intimate partner. In compliance with the 486.4 order made on a previous occasion, and as made above, I refer to the Applicant by his initials "R.S." so as to not indirectly identify the complainant.

[2] Timely justice is a cornerstone of a fair and democratic society. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees every accused person the right to be tried within a reasonable time.

[3] This right protects not only the liberty and security of the accused, but also the integrity of the justice system itself. When trials are delayed, accused persons remain in legal limbo, victims are left without closure, and public confidence in the courts is eroded.

[4] As the Supreme Court emphasized in R. v. Jordan, excessive delay has become a systemic issue—often tolerated through outdated practices and institutional inefficiencies. The framework established in Jordan, and reaffirmed in R. v. Cody, requires all participants in the justice system to take proactive steps to prevent delay and ensure that criminal proceedings are conducted fairly, efficiently, and within constitutionally acceptable timelines.

[5] At the core of the Jordan framework is a presumptive ceiling on delay, beyond which the delay is considered prima facie unreasonable. This ceiling is set at 18 months for cases proceeding to trial in provincial court, and 30 months for cases in superior court.

[6] If the total delay from the date the charge is laid (i.e., when the information is sworn) to the actual or anticipated end of trial—excluding periods of defence delay—exceeds the applicable ceiling, the delay is presumptively unreasonable. The Crown then bears the burden of rebutting this presumption by demonstrating the existence of exceptional circumstances. If the Crown fails to do so, the delay is deemed unreasonable, and a stay of proceedings will follow. Conversely, if the net delay falls below the ceiling, the onus shifts to the defence to establish that the delay is nevertheless unreasonable.

[7] In this case, the information was sworn on March 9, 2022, and the trial is scheduled to end on October 8, 2025. Inclusive of the end day, the total delay is therefore 1,309 days, or approximately 43 months, or 3.6 years.

[8] The Court is therefore asked to consider a stay of proceedings under section 24(1) of the Charter of Rights and Freedoms, by applying the Jordan framework in the provincial court context and the corresponding presumptive ceiling of 18 months.

The Jordan Framework

[9] In 2016 the Supreme Court of Canada provided the framework to assess the merits of application to stay proceedings pursuant to section 11(b) of the Charter along with the corresponding remedy of a stay of proceedings under section 24(1). The analysis, as refined and simplified by the Ontario Court of Appeal in R v. Coulter, is as follows:

(i) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

(ii) Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

(iii) Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

(iv) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(v) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

(vi) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

(vii) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[10] In addition to this framework, I am mindful that:

(i) The "presumptive ceiling" for provincial courts, as is the case here, is 18 months.

(ii) A stay of proceedings "below the ceiling" are rare and require proof of meaningful defence efforts and unreasonable delay.

(iii) In setting the "ceilings", the Supreme Court factored in tolerance for reasonable institutional delay.

A Charted History of the Proceedings

[11] Referencing the materials filed by the Applicant and Respondent, including the transcripts of the proceedings, court documents, trial co-ordinator forms, correspondence, and the "Agreed Statement of Facts", the history of the matter is as follows:

Date	Total Delay	Event
August 3, 2019		Date of Count #1 on information
August 3, 2020		Date of Count #2 on information
February 28, 2022		Arrest date of accused
March 1, 2022		Accused released on Undertaking
March 9, 2022		Information sworn by JP Kevin Boothroyd. 2022.09.09 at 09:34:05
March 11, 2022	2 days	Application to vary undertaking filed by counsel R. Christie and consented to by Crown D. Ida
May 6, 2022	58 days / 1.9 months	First appearance. Agent for counsel R. Christie attends requesting disclosure. Crown advises disclosure is not yet available. Crown does not provide any estimate on when it might be ready. Adjourned to July 8, 2022.
July 2, 2022	115 days / 3.8 months	Disclosure provided to counsel R. Christie
July 8, 2022	121 days / 4.0 months	A Canada-wide Rogers service outage resulted in adjournments of all matters before the court, including the Applicant's. At 12:18 p.m., all matters on the Applicant's docket were adjourned to September 16, 2022. The court was advised that the circumstances were unforeseen and rendered the courthouse inoperable. The outage took place from July 8-9, 2022.
September 23, 2022	198 days / 6.5 months	Counsel R. Christie attends court and advises that a judicial pre-trial was scheduled for December 6, 2022. He therefore requested the matter return on December 9, 2022. There is no indication of other, if any, available dates offered for the JPT. The Crown offered no opposition or comment on delay. Mr. Christie advised the Court he already had instructions to schedule a trial date and intended to do so once the JPT was completed. Mr. Christie notes the Crown has elected by indictment. No mention of outstanding disclosure.
December 6, 2022	272 days / 8.9 months	Judicial pre-trial conducted. McPherson J. Trial estimates obtained.
December 9, 2022	275 days / 9.0 months	Agent for counsel R. Christie attends and advises there is a trial scheduling conference scheduled for January 12, 2023, to schedule trial dates in accordance with the JPT held on December 6, 2022. Agent for counsel requests the matter return on the first date past this conference meeting to confirm those dates on the record. Matter adjourned to first date offered by the Court, February 17, 2023.
January 12, 2023	309 days / 10.2 months	Trial scheduling conference with trial coordinator conducted via Zoom. Trial and motion dates agreed upon. Offered dates, availability of Crown and Defence, and timelines for filing Stage 1 and Stage 2 motions noted on trial coordinator's "TRIAL TIME ESTIMATE FORM".
February 17, 2023	345 days / 11.3 months	Trial dates of June 10–13, 2024 confirmed on record; In addition, two motion dates confirmed on record. Accused election formally pending but noted as "Trial" on trial coordinator form (this "trial" would be held in OCJ). Counsel Christie retained for trial and motions. Adjourned to May 5, 2023, to ensure formal election to mode of trial filed with the Court.
May 5, 2023	422 days / 13.9 months	Agent for new counsel A. Craig appears. Court advised that a Crown resolution / pre-trial meeting is scheduled for June 23, 2023, at 09:00. Agent advises that this was the first date offered to her for this purpose. Agent also advises that Ms. Craig would like to explore the possibility of reducing trial time estimates on that date. Matter adjourned to July 7, 2023. The Court requests on the next date, counsel is to provide clear instructions on who trial counsel will be, as well as a formal mode of election made as one is still pending. Trial dates remained in place.
July 7, 2023	485 days / 15.9 months	Agent for counsel A. Craig advises that a Crown pre-trial is scheduled for August 15, 2023, and requests the matter return on August 25, 2023. Agent for counsel advise trial dates are to remain in place for now.
August 25, 2023	534 days / 17.5 months	A second JPT scheduled for September 28 by counsel A. Craig. Matter adjourned to Nov 3, 2023. The Crown advises counsel that if they are not available for the new trial dates, then an adjournment application should be brought as soon as possible.
September 28, 2023	568 days / 18.7 months	Trial estimate reduced from four to two days. Stage 1 and 2 motions vacated. Trial coordinator advised that previously scheduled trial dates (June 10–13, 2024) could not be used due to re-estimation.
November 3, 2023	604 days / 19.8 months	Agent for A. Craig advises trial dates are already scheduled in this matter. Information shows Crown elects to proceed by indictment on this date. When asked by the Court, Agent advises they do not have any instructions on whether an 11b motion would be brought. Adjourned to Nov 17.
November 17, 2023	618 days / 20.3 months	New trial dates set for August 1–2, 2024. No explanation provided in transcript for why original dates were vacated. Adjourned to December 1, 2023, so the Applicant can be put to his election of OCJ trial.
December 1, 2023	632 days / 20.8 months	Trial dates confirmed and Notice of Election was confirmed as filed on November 17, 2023.
February 8, 2024	701 days / 23.0 months	Stage 1 – 276 motion – 30-minute estimate (vacated)
April 11, 2024	764 days / 25.1 months	Stage 2 - 276 motion – 2-hour estimate (vacated)
June 10-13, 2024	827 days / 27.2 months	Trial dates #1 – 4-day estimate (vacated)
August 1, 2024	876 days / 28.8 months	Second set of trial dates set to commence. Upon commencement, the Court is informed the Crown filed a DSF application the day prior. There was no mention of any application being pursued at any of the JPTs or other appearances leading up to trial. The defence objects to this late filing and advises they cannot proceed in a responsible manner. The Court attempts to start the trial with the examination in chief of the complainant, and then adjourn for subsequent dates for the continuation for counsel to properly prepare examination in contemplation of a pending DSF application and evidence. Immediately prior to the commencement of this evidence, the trial judge informs counsel he is now in a position of conflict that appears unrelated to scheduling. New trial dates of November 20th to the 22nd (3 days) are scheduled. DSF application remains active.
November 15, 2024	982 days / 32.3 months	Crown application brought forward seeking adjournment of November 20-22, 2024, trial dates. Counsel not present and may not have been advised of the application. Counsel paged and does not attend. Adjourned to the following Monday of November 18, 2024, for Crown motion to trial.
November 18, 2024	985 days / 32.4 months	Matter traversed administratively to Courtroom 302.
November 18, 2024	985 days	Courtroom 302. Crown motion to adjourn trial dates granted. New trial dates will be placed on record on return date in January 2025. New trial scheduled for October 7-8, 2025.
November 20-22, 2024	989 days / 32.5 months	Third set of trial dates – VACATED – Injury of complainant – Crown adjournment granted.
January 15, 2025	1043 days / 34.3 months	Trial dates of October 7-8, 2025, confirmed on the record.
January 28, 2025	1056 days / 34.7 months	Transcripts ordered for the purpose of preparing the 11(b) application.
February 12 to September 10, 2025		Multiple trial dates offered in 11(b) triage court. Crown and witnesses were available; defence was unavailable for all dates prior to October 7, 2025.
April 23, 2025	1141 days / 37.5 months	Confirmation hearing for 11(b) application
August 7, 2025	1247 days / 41 months	11b motion argued.
October 7, 2025	1308 days / 43.0 months	Anticipated trial commencement date
October 8, 2025	1309 days / 43.0 months	Anticipated trial completion date

Attributable Defence Delay

[12] Through my own review of the record of proceedings, along with the review of the Respondent's factum, I have identified important ranges that are worthy of addressing as it relates to defence delay.

[13] Those ranges are:

• Delay in scheduling the first judicial pre-trial (23 days)
• February 13, 2023, to June 10, 2024 – First date offered for trial compared to the first date scheduled (499 days)
• Rescheduling of new trial dates as per trial-coordinator policy (52 days)

I will address each in the order listed above:

(i) Delay in scheduling the first judicial pre-trial (23 days)

[14] The Respondent notes in their factum:

"Disclosure was provided to Mr. Christie on July 2, 2022 (see Tab 2 of this book). At the September 23, 2022, appearance, counsel advised that a judicial pre-trial (JPT) had been scheduled for December 6, 2022, and that the accused had instructed him to set trial dates shortly thereafter. Despite this, counsel took 32 days to schedule a trial scheduling conference (TSC) following the JPT. The Crown submits that 14 days would have been a reasonable time to book the TSC. The remaining 23 days constitute defence delay."

[15] I accept this as stated. Counsel was able to schedule the next step in the proceedings after the judicial pre-trial was conducted. This delay was attributable to the defence as it exceeded a reasonable expected time to do so. Considering the 272 days (nearly 9 months) had elapsed to the JPT, this should have drawn special attention to the defence to move the matter forward as expeditiously as possible.

[16] As Justice B. Jones found in similar circumstances surrounding the delayed filing of a trial confirmation form:

[38] [W]hen a defence application has merit, defence conduct that demonstrates marked inefficiency towards delay will be characterized properly as a form of defence delay for Jordan purposes: see R. v. Cody, 2017 SCC 31, at paras. 33-36. Phrased differently, "inaction may amount to defence conduct that is not legitimate."

[17] In that case, Justice Jones found 65 of the 75 days adding to the delay attributable to the defence for this reason where 10 would be a reasonable amount of time to obtain instructions and file the required form to schedule the trial date.

[18] Unlike issues addressed below, this was a positive choice or action by the defence that contributed to the overall delay.

[19] I agree with the Respondent that 23 days of this delay is attributable to the defence.

(ii) Scheduling of first trial dates: February 13, 2023, to June 10, 2024 – 499 days

[20] In the trial scheduling form dated January 12, 2023, prepared by the Trial Coordinator "M.A." stated the following additional pertinent details to this application:

(i) An unknown Crown representative, and defence counsel R. Christie appeared via Zoom to schedule trial and pre-trial motion dates.

(ii) The Trial coordinator offered dates starting in January 23-26 of 2023. Both the Crown and the defence were not available.

(iii) The first available dates to the Crown were offered in February 13-16, 2023. The defence was not available for these, and other dates offered in February 2023.

(iv) After February, the available dates offered by the trial coordinator jump to June 10-13, 2024 where both the Crown and defence were available.

[21] The unavailability of the defence and the Crown is not surprising considering the first sets of dates offered were within a couple of weeks of this trial scheduling Zoom meeting (TSM).

[22] The dates of February 13-16, 2023, and February 17, 21-23, 2023, offered by the Trial Coordinator and available to the Crown would require the defence to:

(i) Be available within a month for, what was at the time, a three-day trial.

(ii) Prepare, file, and argue both Stage 1 and Stage 2 of a 276 motion.

(iii) Assuming Stage 1 was granted, ensure counsel for the complainant is available within this time frame to properly prepare submissions and make themselves available for the Stage 2 of the proceedings of the 276.

[23] This is not to conclude the completion of a trial within a month from a trial scheduling conference is not possible or preferred. Highly expeditious timelines ought to be aimed for and achieved where possible. However, it cannot be ignored that such a timeline is generally unrealistic in trials of this nature and in reasonable consideration of defence counsel's schedule.

[24] On the record before me, and in particular the "TRIAL PRELIMINARY INQUIRY SCHEDULING FORM", (TSF), the trial coordinator did not offer any dates in 2023 outside of those January and February dates mentioned above. As noted above, the chart of availability then jumps to June of 2024 where both the Crown and defence are available.

[25] As noted in R v Godin, 2009 SCC 26, para 23:

23 … Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.

[26] While Godin pre-dates Jordan, in my view, these principle of fairness and reasonableness expressed in Godin still applies in assessing a claim of attributable defence delay. A small window of dates, offered to commence within a month of the scheduling date does not immunize claims of 11(b) in perpetuity and particularly in these circumstances where the next available dates were offered over a year following those dates and past the presumptive ceiling.

[27] There is also an important, critical, and fatal factor in this case that was overlooked in scheduling the appropriate dates. In the Trial Time Estimate Form notes section, it states:

"278.92 - stage 1, 1 1/2 hour (30 days before stage 2), stage 2, 2 hours (30 days before trial)"

[28] In addition, the Ontario Court of Justice Rules require such applications are also required to be filed at least 30 days in advance of the trial date, before the trial judge, under section 2.5(1)(b)(ii).

[29] Therefore, and despite the proposed January and February 2023 dates notes on the Form, trial-coordinator was not permitted to offer dates any sooner than 61 days from the trial scheduling to comply with the 30+30 day filing requirements ordered by the JPT judge. This first available procedurally compliant date would therefore be March 13, 2023. This starting point also assumes perfect availability for the defence, Crown, and counsel for the complainant on Stage 2 if Stage 1 was granted.

[30] The record before me does not indicate whether the defence or Crown would be available at any time past March 12, 2023, to June 2024 as no dates were offered.

[31] While it is speculative, it is reasonable to assume that both the defence, Crown, and counsel for the complainant would be available at some point in this 13-month range. Without a clear record, I can only conclude that this was part of the institutional delay when taken in context of the non-compliant and limited dates. The burden rests with the Crown to prove otherwise. I also find that had the defence been offered other available dates during this 13-month span, the scheduling form and/or the comments of the Crown on the subsequent date would have reflected that.

[32] If the record demonstrated that defence was not available during this 13-month period, I would not have any difficulty attributing defence delay relative to that unavailability. That is not the case. Here, the record only demonstrates a small window of unreasonable and procedurally non-compliant dates were offered.

[33] From there, the next dates offered were well past the provincial court "ceiling" and presumptively unreasonable – 23 months for Stage 1, and 27 months to the commencement of trial.

[34] I find from the record before me that the JPT judge imposed mandatory filing timelines, further deemed mandatory by the Ontario Court of Justice Rules. The trial coordinator was not in a position to offer compliant dates. Defence unavailability was not the cause of delay—compliance with procedural fairness was.

[35] These timelines are set in place for the benefit of all parties and reasonable management of trials of this nature. While common in proceedings of this nature, 276 motions are complicated, take time to prepare, time to respond to, and require the assistance and availability of counsel for the complainant should the matter proceed to Stage 2. This was all undoubtedly considered and factored into the ordered timelines by the JPT judge.

[36] From the Trial Estimate Form, and my own awareness of the general local practice, it appears that the Stage 1 (30-minute estimate) and Stage 2 (1.5-hour estimate) motions were then scheduled in retrospect once the June 2024 trial dates were agreed upon.

[37] The first trial dates offered past the mandatory (30 day + 30 day) filing compliance timelines were those accepted by both Crown and defence – June 10 to 13, 2024. At this time, total delay for trial now reached 824 days, or 27 months – a time well beyond the presumptive Jordan ceiling for matters in the provincial court. There is no evidence of any defence waiver.

The Silence of Defence Counsel on "Above Ceiling" Trial Dates

[38] As noted, the trial dates scheduled for June of 2024 already placed this case well above the Jordan presumptive ceiling. From the swearing of the information On March 9, 2022, to the anticipated end of the trial date of June 13, 2024, would total 827 days / 27 months.

[39] Notwithstanding, neither the defence nor Crown counsel raised this issue when the dates were placed on the record.

[40] As Justice Monahan wrote in R. v. Lokubalasuriya, 2024 ONCJ 46:

[13] Based on the Supreme Court of Canada rulings in Jordan and R. v. Cody, 2017 SCC 31 and R. v. J.F. 2022 SCC 17, a considerable body of law is developing at the Ontario Court of Justice ("OCJ") level to the effect that the failure of defence to proactively assert their client's section 11(b) rights may lead to having some defence delay attributed to the defence. Relying on Jordan, Cody and J.F., a number of OCJ Courts have held that where a defendant sets a trial date above the Jordan ceiling and says nothing about section 11(b) concerns, then some portion of time associated with the delay in raising these issues. In particular, a number of OCJ judges have attributed as defence delay 50% of the time from when the dates are set until the trial date, or in some cases, only until the Crown is put on notice that the defence intends to bring a section 11(b) application: see R. v. Nigro 2023 ONCJ 41 (per Justice West); R. v. Ahmed (unreported per Justice Caponecchia); R. v. A.D. (unreported per Justice Lai); R v. MacDonald (unreported per Justice Daviau); R. v. Kullab 2023 ONCJ 458; and R. v. M.W. 2023 ONCJ 581. Courts have in some cases allowed defence counsel 2 to 4 weeks after the trial dates are set for defence to order transcripts of past court attendances in order to finalize the defence's position on section 11(b) (see Ahmed and M.W.).

[15] In order to determine whether any defence delay should be attributed to the defence in this case for a failure to clearly assert section 11(b) issues in a timely way, it is important to understand the legal theory behind why cases like Ahmed, A.D., Macdonald, Kullab and M.W and other cases have found significant defence delay in these cases. In my view, before deducting any amount as defence delay for failing to raise section 11(b) concerns in a timely way, the Court must be satisfied that had the defence acted promptly, the Crown could have and would have prioritized the case and had it heard under the Jordan ceiling: see Ahmad at para 30; Kullab at paras at 34 to 37 and M.W. at para 38. Formal evidence is not required in this regard and the Court can rely upon its knowledge of local practice and the circumstances in the case before the Court. Further, as I observed in Kullab, a finding of defence delay is not an "exact science" and is "highly discretionary". The Court can, among other things, have regard to the public record which discloses that the Crown in Brampton has regularly prioritized serious cases including those involving allegations of sexual assault and possession of firearms to give but two examples. [Emphasis added]

[41] In applying Justice Monahan's analysis, I do not find on the record before me that any defence delay deduction should take place as there is nothing to suggest that "had the defence acted promptly, the Crown could, and would have prioritized the case and had it heard under the Jordan ceiling." To the contrary, I find that the "TRIAL PRELIMINARY INQUIRY SCHEDULING FORM" was exhaustive of this issue of what dates were available, offered, and could be set.

[42] The Ontario Court of Appeal addressed the position in R. v. Mengistu. There, the Crown argued that failing to raise 11(b) concerns on a timely way may be attributable to the defence when a trial date is scheduled outside the presumptive ceiling. In dismissing the Crown appeal and upholding the stay of proceeding, the Court held:

38 The Crown argues that defence counsel failed to raise s. 11(b) concerns in a timely way and the resulting delay ought to be deducted as defence-caused delay. The Crown points out that defence counsel knew as of March 10, 2020, that Mr. Mengistu's trial was scheduled outside the presumptive Jordan ceiling and yet did not raise s. 11(b) concerns until April 13, 2021, 27 days before the trial was initially scheduled to start. Relying upon the Supreme Court's decision in R. v. J.F. 2022 SCC 17, 413 C.C.C. (3d) 293, as well as a series of cases flowing from J.F., the Crown argues that the defence cannot wait to complain about the delay until it is locked in, and the Crown can do nothing to mitigate it. The Crown further argues that "it is a reasonable inference" that it would have found an earlier trial date had defence counsel raised concerns over delay in a more timely way.

39 […]

40 In order for the Crown to succeed on this ground of appeal, it must establish the following: (i) defence failed to raise s. 11(b) concerns in a timely way; and (ii) that failure contributed to the delay in bringing the matter to trial within the presumptive Jordan ceilings.

41 In my view, there is an insufficient factual record upon which to determine the second of these issues and would therefore not permit the Crown to raise it for the first time on appeal.

42 This absence of a sufficient factual record is underscored by the application judge's consideration of whether the period from April 20, 2020, to the initial trial date of May 10, 2021, should be deducted on account of the exceptional circumstance of the COVID-19 pandemic. The application judge rejected the Crown's argument on the basis that there was no evidence as to what steps the Crown would have taken, "but for" the pandemic, to secure an earlier date. The Crown does not appeal this aspect of the application judge's ruling. [Emphasis added]

[43] Like the trial judge in R. v. Mengistu, there is no evidence before me of how the trajectory of this case would have changed if the 11(b) concerns were raised at an earlier stage.

[44] The trial coordinator's scheduling form confirms that no earlier dates were offered or available, and there is no indication that the Crown expressed any willingness to prioritize the matter had defence raised 11(b) concerns earlier. If such factors are to be considered in attributing delay to the defence, they ought to be clearly reflected in the record at the time trial dates are set.

[45] I also have trouble accepting that Jordan places a positive obligation on the defence to take undefined active and sustained measures to seek earlier dates once trial dates are set – especially when a complete record is formed on how that unfolded and what was, and was not, available.

[46] While it is certainly open for the Court or Crown to take specific measures as a matter of practice or policy to have those cases with 11(b) concerns, or that are set above the presumptive ceiling to return to a practice or special court to consider reprioritization or other means to address the pending violation, that onus should not fall to the defence to do so on their own accord.

[47] The defence has no control over how the Crown prioritizes cases, or over control of how the trial-coordinator may recalibrate other matters and therefore cannot be placed in a state of perpetual ambition for changing dates they have no control over and are already scheduled through a process that is presumed cognizant of 11(b) rights.

[48] I am mindful not to conflate the clear onus of the defence to take meaningful sustained efforts and steps required of the defence to succeed on a "below ceiling" 11(b) application, into obligations imposed when a case is "above ceiling".

[49] To the contrary, Jordan makes it clear the burden rests upon the Crown to rebut the presumption when the matter exceeds the threshold after subtracting delay caused by the defence, and waiver.

[50] Such a requirement upon the defence would incentivize trial dates being purposely or indifferently set past the presumptive ceilings with below-ceiling dates only to be offered Jordan-compliant dates once defence sufficiently and promptly protests and requests special administrative steps or priority to apply. While aspirational, I do not find it a requirement as a matter of law on "below ceiling" matters.

[51] If this was the intention of the Supreme Court in Jordan, the Supreme Court could have easily added this positive obligation into the comprehensive "above ceiling" framework to nullify defence delay where the defence remains silent in the face of delayed dates. Reading in such an obligation is inconsistent with the plain language of Jordan and the principle that any waiver of delay must be informed and unequivocal.

[52] Unless this silence of the defence can be categorized clearly into actions that caused delay (attributable to the defence), or clearly demonstrate waiver, I do not accept defence silence per se has any application to the Jordan framework, either on a partial or complete attribution. For the sake of a Jordan framework, the record must be assumed to be complete.

[53] While there may be occasions where silence may be seen as an intentional or deliberate act by the defence that causes delay, I do not find that to be the case in the Applicant's matter.

[54] Further, introducing speculative 'but-for' scenarios based solely on defence silence does not advance a principled, predictable, or meaningful analysis or protection of an accused's rights under section 11(b). As set out in R. v. Mengistu, supra, at para 42, to evaluate the "but-for" impact, there must be some evidentiary record on how the trial dates would have changed.

[55] Accordingly, I find that the defence's silence in the face of trial dates scheduled beyond the Jordan ceiling does not constitute waiver or delay attributable to the defence. In the absence of evidence that earlier assertion would have altered the scheduling trajectory, and given the completeness of the record, no deduction is warranted.

A Stay Was Warranted at the Anticipated End of the First Trial Dates

[56] Except for the 23 day defence delay relating to the scheduling of the Trial Scheduling Conference mentioned above, I cannot attribute any other delay to the defence for other reasons. Up to this point, the accused acted diligently by retaining counsel within days of the arrest as shown on the March 11, 2022, document "APPLICATION FOR CONSENT VARIATION OF POLICE UNDERTAKING" where counsel R. Christie is listed.

[57] To the contrary, I find several factors outside the exercised diligence of defence contributed to the delay and overall attitude of complacency the Crown seemed to demonstrate leading up to the June 2024 trial dates.

(i) Disclosure was not provided to the accused until July 2, 2022, or 115 days / 3.8 months after the swearing of the information. The disclosure relates to a one-complainant case presented primarily through a four-hour statement.

(ii) The allegations date back to 2020. The dated nature of the allegations suggests there was not a pressing need to have the accused arrested, or information sworn, until disclosure would be available. While this is certainly not a requirement of any police investigation, such things cannot be overlooked when assessing the overall attitude of complacency towards delay and the ever-pressing importance of an accused 11(b) rights and strict Jordan timelines.

(iii) The "Rogers Outage" issue may offer some degree of "exceptional circumstance" that could be subtracted from the overall delay. However, and like the delay in disclosure, the Crown must remain ever vigilant of the cumulative effect adjournments can have on these applications. While such outages can happen, the mass adjournment of all matters from the July 8, 2022 docket to September were excessive and without explanation on the need for 2.5 months to rectify this. While an adjournment was required, 1-2 weeks should have been more than enough time to recalibrate matters into court. The 2.5-month time seemed arbitrary and without any consideration of how it might later affect 11(b) constraints. Power, internet, and other building management issues are bound to happen. When they do, the matter should return as soon as practicable and pick back up from where it was left off. I note that despite this inconvenience, it did not prevent other courts in Ontario from standing matters down and addressing them later in the afternoon. Whether that was possible in the present case, it was not reasonable or cognizant of 11(b) obligations on a matter that was already 4 months old and disclosure outstanding. While some of the outage itself may qualify as an exceptional circumstance, (I find 1-2 weeks would be sufficient), the length of the adjournment was excessive and not reasonably tailored to the nature of the disruption.

(iv) In effect, the delayed disclosure and outage left the accused at 6.5 months before a judicial pre-trial was even scheduled.

[58] Minus the defence delay of 23 days relating to the scheduling of the TSC, this was a total of 678 days (22.3 months to the Stage 1 application, and 827 days (27.2 months) to the end of the first scheduled trial dates from June 10-13, 2024.

[59] Therefore, and regardless of the analysis to follow, it is my conclusion that that the Applicant was already deserving of a stay of proceedings under the Jordan framework, pursuant to section 11(b) and 24(1) of the Charter.

[60] Notwithstanding, the delay and continued 11(b) violation of Mr. R.S.'s right to be tried within a reasonable time only became worse as these first anticipated trial dates in June of 2024 approached.

The Trial-Coordinator's Policy Requiring the Defence to Schedule New Dates

[61] As noted above, from the transcripts, and the Agreed Statement of Facts ("ASF"), Mr. "R.S.'s trial was originally scheduled for February 8, 2024, April 11, 2024, and June 10–13, 2024" by previous counsel R. Christie.

[62] In the spirt of ensuring that the positions, admissions, and estimates taken at the first judicial pre-trial remained in place, the ASF reads:

"When Ms. Craig was retained, a further judicial pretrial was conducted on September 28, 2023, to narrow the issues. Ultimately the trial estimate was reduced from four days to two days, and the pretrial motions were determined to no longer be necessary. Ms. Craig was advised that none of the previously scheduled dates could be used, and two new days would need to be scheduled."

[63] The ASF clarified this policy as:

"The trial coordinator has advised that their policy is as follows:

[W]hen a trial is re-estimated—for example, from four days to two—we offer the next available dates for a two-day trial, not for the originally scheduled four-day block. We also do not simply convert the original four-day courtroom into a two-day trial court, as that courtroom can now be reallocated for a matter that still requires the full four-day window."

[64] The trial coordinator's policy, which required reallocation of courtroom blocks following re-estimation, prevented the defence from preserving previously scheduled trial dates. While administratively practical, such policies cannot override constitutional rights under section 11(b).

[65] Likewise, the imposition of new trial dates resulting from this policy cannot be construed as a valid waiver of delay, nor as consent by the accused. Based on the evidentiary record before me—further clarified by oral submissions and concessions from both parties on August 7, 2025—the defence was not only prepared to proceed on the originally scheduled trial dates but was willing to significantly shorten the proceedings.

[66] The diligence and professionalism demonstrated by newly retained defence counsel, Ms. Craig, in narrowing the issues, conserving valuable court resources, and abandoning costly, complex, and intrusive motions under section 276 should be commended—not penalized. At paragraph 86 in Jordan, the Court wrote:

86 […] Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing - rather than diminishing - timely justice.

[67] The practical effects of endorsing the trial coordinator's policy would incentivize defence counsel to act in the very manner Jordan cautions us against whereby parties fall into a culture of complacency towards valuable court resources and delay.

[68] In Jordan, at paras 40-41, and at para 43, the Supreme Court pointed out this very issue as it related to the previous Morin framework and how it, and the entire attitude towards the prompt delivery of justice must change by all parties involved:

40 … Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system" (LeSage and Code, at p. 16). It "rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system" (Cowper, at p. 48).

41 The Morin framework does not address this culture of complacency. Delay is condemned or rationalized at the back end. As a result, participants in the justice system - police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament - are not encouraged to take preventative measures to address inefficient practices and resourcing problems. Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better.

43 Complexity is sometimes unavoidable in order to achieve fairness or ensure that the state lives up to its constitutional obligations. But the quality of justice does not always increase proportionally to the length and complexity of a trial. Unnecessary procedural steps and inefficient advocacy have the opposite effect, weighing down the entire system. A criminal proceeding does not take place in a vacuum. Each procedural step or motion that is improperly taken, or takes longer than it should, along with each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts.

[69] If it were not for the lack of complacency of counsel, Mr. R.S.'s trial would likely long be over, this motion would be unnecessary, and court time would have in the end been spared.

[70] While it would have been preferable for defence to state a clear objection to this policy on the record at the time, I find that they had no choice in the matter when factoring in the Agreed Statement of Facts on this policy.

The DSF Application

[71] On the day of trial, defence attended prepared to defend the case to meet as scheduled.

[72] However, the Court was informed of an application filed the day before by the Crown. This application sought to introduce prior disreputable conduct of the accused as it relates to the relationship of an intimate partner. Also known as a "DSF" application:

THE COURT: Whenever you're both ready.

A. CRAIG: All right. We can perhaps at least sort of canvass, procedurally, the issues that we've got, Your Honour, and take your guidance. I'm on my feet, so perhaps I'll just sort of brief you. So, this is a two-day trial set for today and tomorrow. It was set, I think, previously for June, and then was rescheduled. My friend, as you probably saw, filed a prior discreditable conduct application yesterday.

THE COURT: Yes.

A. CRAIG: ...at any of the prior judicial pretrials, and it wasn't my friend that conducted any of them, so it's certainly not on her; but it was never flagged. The complainant's statement is about four hours long. And I would say maybe ten minutes of it relates to the matters that are actually outlined in the Information, the rest is all sorts of other stuff. So, first of all, I don't think two days is going to be enough if we're getting into all of that. Second, I prepared for a trial on the charges in the Information. I'm going to need a lot more time if I'm going to be cross-examining her on a four-hour statement. I need a lot more time with Mr. R.S., I need a lot more time preparing a cross because there's a big, big difference between, you know – I'm just - I haven't counted, 30 to 40 incidents that are discussed in a four-hour statement, and the two that are the subject matter of the court.

[73] The Crown's "DSF" application, filed the day before trial, was not mentioned in any prior JPTs or pre-trial discussions, despite 876 days having elapsed since the information was sworn. Defence counsel, having prepared for the allegations as charged, and having confirmed admissions and refined the issues for trial at the second JPT, was unable to proceed responsibly. The late filing necessitated an adjournment, undermining trial readiness and procedural fairness.

[74] The Ontario Court of Justice Rules state:

Time for trial applications

2.5 (1) A trial application shall be heard at the start of the trial or during the trial unless the Court orders otherwise.

(2) For the purposes of subrule (1), trial applications include

(b) complex evidentiary applications, such as applications for the admission of

(i) similar act evidence,

(ii) evidence of a complainant's prior sexual activity, or

(iii) hearsay evidence; and

Times for service

3.1 (1) An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application unless the Criminal Code imposes a longer period.

(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application unless the Criminal Code imposes a longer period.

(2.1) Unless otherwise ordered by the Court, proof of service must be filed at the same time the application (Form 1), or response (Form 2) is filed.

Exceptions

(3) Despite subrules (1) and (2), the time periods set out in those subrules may be shortened or lengthened

(a) by an order of the Court; or

(b) with the consent of the parties, subject to approval by the Court.

[75] Such DSF applications are, by their very nature, rarely unforeseen as they seek to introduce prior disreputable conduct that was previously known to the police, as was the case here.

[76] R. v. D.S.F., [1999] O.J. No. 688 affirms the principle that evidence of prior discreditable conduct may be admissible to assist the court in understanding the nature and dynamics of a domestic relationship.

[77] In cases involving allegations of sexual and physical abuse within an ongoing relationship, courts have permitted such evidence to contextualize the alleged conduct and illuminate the relational backdrop against which the central issue of consent must be assessed. If permitted the use of prior disreputable conduct may be admitted to:

• Explain and contextualize the narrative of the complainant's account of her relationship with the accused.
• Demonstrating animus toward the domestic partner.
• Establish motive for the charged offence; and,
• Support the complainant's credibility, particularly in explaining her delay in leaving the relationship or reporting the abuse.

at paras. 20 and 23–25

[78] In IPV prosecutions, the potential for DSF applications is not only foreseeable but often central to the Crown's theory. Their late introduction undermines trial readiness and procedural fairness.

[79] In attempting to simplify matters, the Crown sought to narrow the DSF issue:

T. KIM: So, A, B, and C is the evidence I'm seeking to admit. And A refers to sort of a general description of the atmosphere of the relationship and the interactions between the two parties. And then, B is a specific incident which occurred December 28th of 2021. And then, C would be the one-week sort of period, beginning on the Family Day long weekend...

THE COURT: I see.

T. KIM: ...of 2022, which then ultimately leads to the complainant reporting the incident to police a week later on 28th of February. So, it's - the incident that I refer to at paragraph C is essentially explaining how it is and why it is that, at that point in time, this came to the attention of the police, and what led her to call the police at that time. And then, the evidence relating to A and B is essentially explaining why she didn't report before that time period, without getting into all of the other incidents that she described, because that would be too prejudicial, in my view. I picked one incident that is remote - or close in time to the time that she did report, which is February of 2022, and - and kind of related to her biggest concern, which was sort of her - her children. So, I don't intend to – myself, in bringing this application, ask the complainant about all of the incidents that she described. I don't intend to go into specifics about it, other than to just kind of generally explain the – the nature of the marriage and the relationship. And I think if my friend wishes to go into the specifics of those incidents and cross for each – each event, I – certainly, that's her prerogative. But I don't know that – that I - I – I won't be asking to lead all of the evidence of the other incidents, Your Honour, because I – in my view, that would be prejudicial.

T. KIM: So, I've narrowed it down to sort of a general description of the relationship, and then, one specific incident prior to the - the time of reporting, and then, the very events that lead to the reporting.

[80] The presiding trial judge at that time, pointed out correctly in my view:

THE COURT: I guess the concern that Ms. Craig has raised is quite apart from what you intend, it's difficult to predict what portions or what other events would be essential for the defence to respond to the Crown's case. And she attended - prepared to deal with just the allegations before the court; a – a – a point I - I – I accept. I guess, attempting not to waste these days, what I'm asking is, would you be prepared to call the complainant in-Chief? I imagine it's going to be a relatively lengthy examination in-Chief, and we stand down from that point, assuming we can find more days that doesn't send this matter into - well into next year on my schedule. [Emphasis added]

[81] As noted in the Rules commentary under section 2.5,

Trial applications can take many forms. For example, an application to exclude evidence at an impaired driving trial for a breach of the Charter is most commonly dealt with in a blended or combined Charter voir dire and trial. However, there are other trial motions which would benefit from being dealt with by the trial judge in advance of hearing the evidence at the trial. For example, an application for the admission of similar act evidence may be better heard in advance of the other evidence in the proceeding, as the outcome may require the parties to consider calling additional witnesses or affect a party's presentation of his or her case. Rule 2.5 is designed to balance the benefits of certainty as to how a complex issue should be addressed with flexibility to ensure that the fundamental objective set out in rule 1.1 is properly respected. In general, where the applicant knows before the trial begins that a voir dire or admissibility hearing will be needed to tender certain evidence, there should be compliance with rule 2.5, unless otherwise ordered by a pre-trial or trial judge.

[82] Just before the accused was arraigned, the presiding justice advised counsel that there was a conflict in this proceeding that prevented him from hearing the case further. This conflict was independent of scheduling as efforts were made prior to this declaration to preserve what dates he could.

[83] However, regardless of the conflict of the presiding justice, an adjournment was required in any event due to the change of the case to meet in the face of the DSF application. From the comments of the trial judge, even if the trial did commence before him, that adjournment would have been lengthy and "well into next year" (2025) on his schedule.

[84] Traversing the matter to another judge was not pursued. Even if that had occurred, it would not have alleviated the need for adjournment. At a minimum, the trial was to be adjourned for a bifurcation of the proceedings whereby an examination in-chief could commence, with sufficient time for counsel to prepare a properly prepared cross-examination recalibrated towards the DSF issues.

[85] Filing a DSF application the day before trial, on IPV sexual assault, is almost certain to necessitate an adjournment in any case, unless the presiding justice refuses to permit it due to non-compliance with the Rules and agreed upon timelines.

[86] The failure to exercise reasonable foresight, in the context where the trial dates are already well above the Jordan presumptive ceilings shows an indifference towards the accused's right to procedural fairness, legal fees, and the 11(b) consequences that may flow from that. This approach undermined not only the accused's rights but also the integrity of the proceedings and the interests of all participants, including the complainant.

[87] As a comparison, had the defence filed a Charter motion the day before trial, it is a near certainty the Crown would be permitted an adjournment to properly prepare, investigate, research, and recalibrate. Such a hypothetical defence adjournment, if granted, would have likely required a waiver of 11(b), or at a minimum a clear finding that the delay was entirely attribute to the defence. The Crown must be held to the same standard. The happenstance of a judge being in conflict does not then turn an inevitable and lengthy adjournment (on this record) where the Crown is clearly responsible, into "exceptional circumstances."

[88] Nor should the accused be placed in a situation where they are asked to choose between their right to a trial within a reasonable time or instructing their counsel to proceed unprepared. In adjourning the file, the Crown stated:

T. KIM: Thanks for the indulgence, Your Honour. Counsel and I have discussed it, and we've come to the agreement that it would be – the best course of action would be to adjourn the trial and schedule a three – three new days.

This "agreement" stated on the record created circumstances that compromised the voluntariness of the defence's acquiescence to the adjournment and cannot be properly said to be a valid waiver of 11(b), or attributable to defence delay. As stated in R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659, at para 27:

"A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61)."

[89] While DSF applications are easy to advance, they are difficult and complicated to prepare a defence and respond to.

[90] Such applications can bring into issues that extend far beyond the allegations before the Court, require further investigations, reviewing electronic communications, nuances and layers to cross-examination, legal research, subpoenaing potential witnesses (perhaps children), remote and/or CCTV applications, and possible 276/278 issues depending on the prior disreputable conduct being advance.

[91] I find the adjournment of the August 2024 trial dates the fault of the Crown.

[92] Whatever conflict that arose from the trial judge is a distraction to a predictable collateral effect to this neglect in proper trial preparation and diligent case management that resulted in an application sought to pursue and did not reevaluate their pursuit in the face of a case in excess of the presumptive Jordan ceiling. As indicated at paragraph 65 in Jordan:

[65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[93] This likely has little to do with the trial Crown assigned to the matter; however, the Crown is indivisible for these purposes, and it is a distinction without a difference for the purpose of an 11(b) analysis. I mention it only to avoid casting blame on any particular Assistant Crown Attorney.

[94] Regardless, this case is a good example of why the Office of the Crown Attorney must reflect and reevaluate how cases of this nature are managed and prosecuted.

[95] Sexual assault files, particularly those involving IPV and potential for DSF evidence, must be assigned to trial counsel early to provide:

• Informed and binding discussions at JPTs and CPTs.
• Ample opportunity to contemplate a variety of common motions including 276/278 and DSF.
• Particularizing and reducing to writing any intended DSF application so that the defence can understand the case to meet and ensure they are properly prepared on these issues.
• Advice to the complainant on various rights they have, including the right to counsel on certain proceedings.
• An awareness of pending disclosure that likely involves vulnerable witness vetting.
• An awareness of pending 11(b) issues and ensuring dates are set well below the Jordan presumptive ceilings.
• Compliance with filing timelines set by the Court and the Ontario Court of Justice Rules.

[96] Unlike an accused, the Crown cannot waive delay under section 11(b) of the Charter or assume responsibility for it in exchange for an adjournment. This distinction imposes a heightened duty on the Crown to act with diligence and foresight in managing its case. That duty is especially pronounced in matters involving DSF applications, where the evidence sought to be admitted is often central to the Crown's theory and inherently complex. These applications frequently engage additional legal and evidentiary considerations, including potential motions under sections 276 and 278 of the Criminal Code.

[97] Given their complexity and potential impact on trial fairness, DSF applications must be addressed well in advance of trial and discussed at judicial pre-trials. Their late introduction undermines trial readiness, compromises procedural fairness, and risks infringing the accused's right to be tried within a reasonable time. In no uncertain terms, DSF applications cannot be left to the eve of trial or omitted from pre-trial planning.

[98] While a court may grant a Crown adjournment, such a request will invariably trigger scrutiny under section 11(b). In this case, the late filing of the DSF application did not constitute an "exceptional circumstance" within the meaning of Jordan. It was foreseeable, preventable, and optional. The Crown could have proceeded without advancing the application, and had it done so, the record would be far clearer on whether the trial could have commenced before another judge. The adjournment was not compelled by necessity, but rather by a lack of timely preparation.

[99] This resulted in the scheduling of a third set of trial dates from November 20-22, 2024. Subtracting the defence delay of 23 days noted above, Mr. R.S.'s matter now reached a net delay of (985 days) – 23 days = 962 days / 31.6 months. Further to my findings above, this further justified a stay of proceedings as being presumptively above ceiling in the provincial (and superior) level of court.

Exceptional Circumstances

[100] While redundant to the conclusion reached above, I do find there are two "exceptional circumstances" that do not contribute to the overall delay: 1) the Rogers' Outage, and 2) the adjournment of the third set of trial dates due to an injury of the complainant.

(a) Rogers Outage

[101] As noted above, a nation-wide Rogers' service outage affected millions of Canadian across Canada from in the early morning of July 8, 2022. Within a day or two, all services were gradually restored. This was clearly an unforeseeable, unpreventable, and exceptional discrete event.

[102] While a significant disruption during those two days, it does not warrant a sweeping justification of the delay incurred as a result. I am willing to attribute two weeks, which I consider on the high end, to such circumstances. While considered as an exceptional circumstance and deductible from the overall delay, this has no material effect on the overall conclusions reached above as it does not bring the net delay below the ceiling – even with a full attribution of 2.5 months (which I do not find), the stay of proceedings still stands.

(b) The Injury of the Complainant

[103] The third set of trial dates were scheduled for November 20-22. This was a result of a serious injury suffered by the complainant. This too, was an unforeseeable, unpreventable, and discrete exceptional event.

[104] Like the Rogers outage, such an exceptional event may be deducted from the overall delay but ultimately has no material effect on the conclusion I have reached to stay the proceedings considering this all happened a stay was already warranted.

[105] For the benefit of any reviewing Court, I would have found that the unavailability of defence counsel for multiple trial dates was unfortunate but not reasonable.

[106] From February 12 to September 10, 2025, multiple trial dates offered in 11(b) triage court. Crown and witnesses were available; defence was unavailable for all dates prior to October 7, 2025. I would have attributed five of these months to defence delay in subtracting from the overall delay. However, this all follows my conclusion that a stay was warranted well before this and becomes redundant in the overall calculation if it is categorized as a product of "exceptional circumstances" in any event.

[107] The total calculation is therefore as follows:

• Total delay: 1,309 days.
• Defence delay: 23 days for delayed filing of trial scheduling form.
• Exceptional circumstances: 14 days for Rogers' outage + 322 days for adjournment of the third trial dates.

= 950 days of net delay (31.2 months or 2.6 years)

Conclusion

[108] In sum, the net delay of 950 days far exceeds the 18-month ceiling.

[109] The Crown has failed to establish exceptional circumstances sufficient to rebut the presumption of unreasonableness. Defence delay is minimal and well-accounted for. The procedural history, administratively prioritized scheduling, and late DSF application all point to systemic issues beyond the control of the accused.

[110] In consideration of the violation of Mr. R.S.'s right to be tried within a reasonable time pursuant to section 11(b) of the Charter of Rights and Freedoms and having found no sufficient justification to rebut the presumption of unreasonableness, a stay of proceedings is hereby ordered pursuant to section 24(1).

Released: August 22, 2025

Justice S. Robichaud

Footnotes

[1] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631

[2] R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659

[3] R. v. Coulter, 2016 ONCA 704 at paras. 34-41

[4] Jordan, para 83

[5] In calculating the total delay, the start date is excluded, and the end date is included in the sum.

[6] In the early morning of 8 July 2022, Rogers Communications Inc. (Rogers) experienced a major service outage in its Internet Protocol (IP) core network that affected its wireless and wireline services across Canada (July 2022 outage). The July 2022 outage lasted from 4:58 EDT on 8 July 2022 to 7:00 EDT on 9 July 2022 as services were gradually restored. More than 12 million customers lost wireless and wireline services, including mobile subscribers, home Internet users, corporate customers, and institutional customers that provide critical services (e.g., Interac e-Transfer and electronic payment services). https://crtc.gc.ca/eng/publications/reports/xonarp2023.htm

[7] November 18, 2024 (transcript header conflict noted; delay calculated as 985 days).

[8] R. v. Rodriguez, 2023 ONCJ 519, B. Jones J.

[9] R. v. Mengistu, [2024] O.J. No. 3269, at paras 38-43

[10] Morgan (Power of Attorney for Property for) v. Morgan, [2023] O.J. No. 964, at para 48

[11] R v Jordan, [2016] 1 SCR 631, 2016 SCC 27, [2016] 1 RCS 631, [2016] SCJ No 27, [2016] ACS no 27, [2016] 1 SCR 631

[12] Ontario Court of Justice Rules

[13] "Intimate Partner Violence"

[14] Although categorized here as 'exceptional circumstances,' I would have equally considered five of these months as defence delay due to unreasonable unavailability. Regardless of classification, the deduction does not alter the outcome.