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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-10-01

Court File No.: Windsor 23-81100989

Between:

His Majesty the King

— and —

R.B.

Before: Justice S. G. Pratt

Heard on: 10 September 2025

Reasons for Judgment released on: 1 October 2025

Counsel:

Sarah Torelli — Counsel for the Respondent

John Sitter — Counsel for the Applicant

Reasons for Judgment

Pratt J.:

Charges

[1] The Applicant R.B. is charged with the following offences:

(1) 28 July 2021, sexual assault on M.T.

(2) 28 July 2021, sexual interference on M.T.

(3) Between 30 – 31 August 2021, invitation to sexual touching to M.T.

(4) 30 – 31 August 2021, sexual assault on M.T.

(5) 30 – 31 August 2021, sexual interference on M.T.

The Application

[2] Trial of this matter is scheduled to begin today, 1 October, and conclude on 9 October. The Applicant seeks a stay of proceedings on the ground that his right to trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been violated. He argues the delay in this case is above the prescribed ceiling for matters in the provincial court with no legally sufficient reason.

[3] The Crown opposes the application and would put responsibility for much of the delay in this matter on the Applicant. Deducting that portion of the delay, they say, brings this matter back under the ceiling.

[4] The Crown also argues for summary dismissal of the application for a failure to follow the rules of the Court and the relevant practice direction. The Applicant says that any such failure was inadvertent.

[5] For the reasons that follow, the application will be dismissed on its merits.

Summary Dismissal

[6] The information in this matter was sworn on 3 March 2023. It was set for trial on 12 November 2024, with trial dates of 1 and 9 October 2025. When that date was agreed, it was clearly outside the 18-month limit set by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27. No mention of this issue was made on the record when the date was set.

[7] The first mention of delay concerns came on 18 August 2025, 43 days before trial and nine months after the date was set. That mention came in an email sent to the Windsor virtual Crown account and to the Ontario Court of Justice Trial Co-ordinator's office. That email stated:

We are looking to file a delay application and would need a date for a 2 hr application please. thank you shelly

[8] This began a correspondence chain with the trial co-ordinator, the Crown's office, and Applicant's counsel's office. A judicial pre-trial was held with my sister Justice Doucett on 22 August. I was not advised what came of that meeting.

[9] I see from the transcripts filed that they were all ordered on 6 August. I was never told why, when delay was clearly on the mind of counsel at least as of 6 August, no one else was told until the email of 18 August, nearly two weeks later.

[10] Materials for the application were received by the Crown and the Court on 29 August. This was 12 days before the scheduled hearing and 32 days before trial. The hearing itself was set for 20 days before the trial date.

[11] I received the Crown's responding materials on 9 September 2025.

The Criminal Rules of the Ontario Court of Justice

[12] Proceedings in the Ontario Court of Justice are governed, on the criminal side of the Court's work, by the Criminal Rules (hereinafter "the Rules"). The preamble to the Rules found on the Court's website states:

The Criminal Rules of the Ontario Court of Justice set out procedural rules that apply to criminal proceedings in the Ontario Court of Justice. The objective of the Criminal Rules is that proceedings are dealt with justly and efficiently.

[13] This objective is repeated in Rule 1.1. Just and efficient dealings require fair treatment of both the prosecution and the defence, the recognition of the rights of the accused and the interests of witnesses, and the careful scheduling of matters based on their seriousness and complexity, and based on the overall needs of all cases.

[14] Rule 2.4 includes s. 11(b) hearings among pre-trial applications. Pre-trial applications are to be heard at least 60 days before trial, unless the Court orders otherwise.

[15] Rule 3.1(1) requires application materials to be served and filed at least 30 days before the scheduled hearing. Subrule 3.1(3) permits alteration to that requirement if permitted by the Court.

[16] Finally, Rule 5.1 empowers the Chief Justice of the Ontario Court of Justice to issue practice directions that are consistent with the Rules. Such directions may be applicable only to one area of the province or to the entire province.

Practice Direction

[17] Effective 1 November 2023, the Chief Justice issued a practice direction for the whole of Ontario related to applications under s. 11(b) (hereinafter "the Direction"). The Direction sets out certain requirements.

[18] First, an application for relief based on s. 11(b) "shall be heard at least four months before trial, to allow the scheduled trial dates to be utilized for other matters should the proceedings be stayed."

[19] Second, delay is an issue to be canvassed during judicial pre-trials. Defence counsel is required to advise if they intend to bring an application.

[20] Third, delay should also be canvassed when a date that falls outside the Jordan limit is set, either in date-setting court or in the Trial Co-ordinator's office. If such a date is set, a delay application hearing is to be scheduled unless counsel confirms on the record that they are not pursuing the issue.

[21] These directions apply both to initial trial dates and to subsequent dates set on adjourned matters.

[22] Turning to the present case, the application before me violates both the Rules and the Direction.

[23] It was served on the Crown on 29 August, 12 days before the scheduled hearing date. This violates Rule 3.1. The hearing was set for 10 September, 20 days before the start of trial. This violates Rule 2.4.

[24] Scheduling the hearing less than three weeks before the start of trial also violates paragraph 2 of the Direction.

[25] When asked to explain these violations, counsel candidly admitted the application was only brought when it was through inadvertence.

[26] The Rules and Direction exist for a reason. The Ontario Court of Justice is the busiest trial court in Canada. For the 12-month period ending 31 March 2025, the Court received nearly 250,000 new cases across the province. Nearly 50,000 of those were in the West region, and 7,760 were in Windsor. These numbers come from the Court's public website and reflect the volume the Court deals with every day. Specific to Windsor, our jurisdiction also had the highest trial rate in the West region. Around the province, Toronto, Hamilton, Ottawa, and Sudbury all had lower trial rates than Windsor. Among large jurisdictions, only Brampton had a higher trial rate. Windsor is also significantly higher than the provincial average.

[27] All of which is to say, court resources are scarce. We cannot afford to use them inefficiently.

[28] This matter was set in November 2024 for trial in October 2025. It was known to all that the dates set were well outside the Jordan limit. It was known only to the Applicant, however, that this was an issue. Nothing was said on the topic for nine months. When it was brought up, counsel was given a judicial pre-trial and hearing date in short order. The justice system accommodated his desire for a hearing despite his violation of multiple Court directives.

[29] Counsel has stated that the delay in giving notice of the application was caused by inadvertence. He asks me not to dismiss summarily a meritorious application and not to impose a consequence on the Applicant for his error.

[30] It is tempting to dismiss this application outright for lack of compliance with the Rules and Direction. In my view, there was nothing stopping this application from being brought many months ago. If it had been, the parties could have worked to address it and likely obviated the need for it. Instead, the delay has crystallized, and judicial resources may be squandered.

[31] I have no evidence, however, that the Applicant himself played a role in how this application was brought. Had there been such evidence, and had I found the Applicant was part of the reason the matter was not brought to anyone's attention until mid-August, I would almost certainly have dismissed it summarily. As there is no such evidence, I am extremely reluctant to visit the effects of counsel's actions on a defendant who is presumed innocent of these charges.

[32] This is a close case. I should not be taken as condoning the manner in which this application has been brought. But I will exercise my discretion, bearing in mind the Applicant's right to make full answer and defence, and permit the application to proceed.

The Law

[33] In Jordan, supra, the Supreme Court of Canada simplified the manner in which delay applications are assessed. The framework was summarized by Justice Gillese in the case of R. v. Coulter 2016 ONCA 704 from paragraph 34 onward:

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

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

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

37 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).

38 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).

39 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).

40 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).

[34] In the present case, counsel are essentially in agreement as to the total delay. The Applicant says it is 951 days, while the Crown says it is 950. The Crown did, however, note that its calculations may be somewhat different from the Applicant's as their numbers do not include the first and last day of every time period. For the sake of this application, I will use the Applicant's total delay number of 951 days.

[35] Dividing that number of days by 30.417 (the divisor used by the Court of Appeal for Ontario in R. v. Shaikh 2019 ONCA 895) leads to a total delay of 31.26 months. As this is well over the ceiling for provincial court matters, the issue requires further scrutiny.

[36] The parties do not agree on the total amount of defence delay in this case.

[37] The Applicant argues the period from 18 April to 4 November 2024 should be counted as defence delay. This reflects the adjournment of the first trial date, which was granted due to a personal circumstance of counsel. The period is 200 days.

[38] This is the only period of defence delay admitted by the Applicant.

[39] The Crown agrees the delay resulting from the first adjournment should fall at the feet of the Applicant, but says it should really be 235 days. That extended period begins from 14 March 2024, which was the date counsel brought the matter forward to begin seeking an adjournment of the April trial dates.

[40] Respectfully, I disagree that defence delay should be calculated from the March date. Counsel brought the matter forward to be addressed rather than waiting until the trial date itself. Bringing matters forward in advance of trial dates when an adjournment is sought should be encouraged. If the adjournment application is successful, witnesses can be cancelled and court resources can be put to other uses. Beginning the defence delay from the application date would penalize the Applicant for acting quickly. It would be a disincentive to bring matters forward when adjournments are being sought and would lead to less efficient use of both witnesses' time and court resources.

[41] The Crown would also attribute a further 30 days of delay to the Applicant for his failure to bring the matter forward in advance of the March date to seek earlier dates. By not doing so, they argue, he implicitly waived delay on at least a portion of the initial time to trial.

[42] I do not accept this submission. The information was sworn on 3 March 2023. The first trial dates were set on 9 January 2024 for 18 and 19 April 2024. Those trial dates were approximately 13 ½ months from the swearing date, and well within Jordan timelines. I see no basis for ascribing any sort of waiver of delay to the Applicant related to the setting of this first trial date.

[43] Finally, the Crown argues that the time from the setting of the current trial dates up to the time they were advised of the s. 11(b) issue should be attributed to the defence. By not bringing the issue to anyone's attention until shortly before trial, the Applicant frustrated the Crown's ability to mitigate the delay. This period runs from 12 November 2024 to 18 August 2025, a total of 278 days.

[44] The caselaw related to s. 11(b) is replete with admonitions that the Crown is under a duty to mitigate delay. But is that duty only triggered when the Crown is told delay is an issue?

[45] Certainly, the duty on the Crown to mitigate arises when it is faced with an exceptional circumstance. Beyond that, however, the responsibility on the Crown is the same responsibility that is on all justice system participants. As the Supreme Court of Canada said at paragraph 1 of R. v. Cody 2017 SCC 31:

As we will explain, the Crown, the defence and the system each contributed to that delay. This leads us to stress, as the Court did in Jordan, that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time.

[46] As the majority said at paragraphs 137 and 138 of Jordan:

137 Real change will require the efforts and coordination of all participants in the criminal justice system.

138 For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients' right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.

[47] I have not been referred to any caselaw that places a duty on the Crown to mitigate delay other than in situations where it is faced with an exceptional circumstance. I have been provided with no authority that requires the Crown to bring matters in delay jeopardy forward to canvass earlier dates. Certainly, where that can be done, it would be beneficial to all concerned. But I do not see any past case where this has been changed from a practice to be encouraged to an affirmative duty. I am not prepared to make that change in the present case.

[48] I am especially reluctant to impose such a duty on the Crown when, as in this case, not a word of discomfort regarding delay was spoken until shortly before the trial. As I said to counsel during the hearing of this application, it is the Applicant's right. It is up to him to assert a violation of it. If he does, and states that delay is an issue, it is incumbent on the Crown and the Court to accommodate the case as swiftly as possible. But if he does not, if he remains silent on the issue, there is no duty to assume he is aggrieved by the situation. Often, delay works to the benefit of a defendant. Fading memories, lost witnesses, cooling tempers. All these factors can come into play when a case takes a long time to get to trial. It cannot be assumed a defendant wishes to proceed to trial as quickly as possible. If he says so, he must be listened to. But if he doesn't, no one is required to step into his shoes and assert a right he may not want to assert.

[49] I should not be taken as reducing the Crown's duty, as a justice system participant, to act proactively to keep cases moving forward. That duty remains. In making the finding I do, I am saying there is no burden on the Crown to go behind the silence of a defendant and solve a problem that may not exist.

[50] If a defendant does wish to assert his right to trial within a reasonable time, he must be proactive in doing so. As noted above from paragraph 138 of Jordan, defence counsel's responsibility includes "actively advancing their clients' right to a trial within a reasonable time". Failing to mention the issue until shortly before trial handcuffs the Crown and the Court and prevents meaningful steps from being taken to fix the problem.

[51] The situation is similar to the one faced by Justice Roberts in the case of R. v. Osei-Bekoe [2024] O.J. No. 2752 (S.C.J.). This is from paragraph 28:

Notwithstanding that the s.11(b) issue crystallized at that time the trial date was set, defence counsel waited to raise s.11(b) until the delay was locked in and he confirmed that the Court and the Crown could not mitigate the delay. This is inconsistent with the general duty to be proactive, and manifestly inconsistent with a meaningful sustained effort to expedite the proceedings.

[52] I do note that in that case, there were concerns that defence counsel actively sat silent and ignored attempts to find earlier dates. That is not the case before me. Still, Justice Roberts' words continue to apply in that the late notice of a delay application prevented a meaningful response to the issue.

[53] In the result, I find there was no burden on the Crown to mitigate delay it was not told was an issue.

[54] In the case of R. v. Hillier [2024] O.J. No. 5705 (S.C.J.) Justice McVey considered s. 11(b) applications brought in an untimely manner:

68 Later, in R v J.F., 2022 SCC 17, the Supreme Court specifically addressed the accused's obligation to raise delay in a timely manner. The issue before the Court was whether the Jordan framework permitted an accused, in the context of a retrial, to challenge delay from their first trial. The Court held that, absent exceptional circumstances, only retrial delay is counted towards the total when s. 11(b) is raised during a retrial: J.F., at para. 60.

69 In so holding, however, the Court made general comments about an accused's duty to act proactively with respect to delay. Once again, the Court stressed that all participants in the criminal justice system, at all stages of the trial process, must take proactive measures to remedy delay, including acting diligently and expeditiously when launching s. 11(b) applications: J.F., at paras. 3, 30, and 34.

70 Though the Court's comments must be viewed in light of the context in which they were made, i.e., whether delay from a first trial can be raised during a re-trial, I find that the Court's dicta apply outside that limited context. As noted above, requiring accused persons to act promptly when raising s. 11(b) issues is not unreasonable because the Jordan framework now allows them to identify with greater predictability when their rights have been presumptively infringed: J.F., at para. 31. An accused must "be an active part of the solution to the problem of delay in criminal cases": J.F., at para. 31.

71 The Court found that an accused who raises delay for the first time after conviction is generally not acting in a timely manner: J.F., at para. 35. And though the Court did not specifically address what constitutes "timely action" within the context of a single trial, in my view, whether delay is raised after conviction or so close to trial that the delay cannot conceivably be remedied is a distinction without a difference in terms of how the associated delay should be allocated in the s. 11(b) analysis. Such inaction should be deterred and, where appropriate, called out as contrary to the Supreme Court's clear direction in Jordan that all parties adopt a collaborative and proactive approach to delay.

72 Failing to promptly launch a s. 11(b) application, though not amounting to a waiver, can deprive the parties of the opportunity to address the impugned delay, a result that runs counter to the collaborative approach espoused in Jordan. Late action on the part of an accused also undermines the purpose of s. 11(b) which is to ensure that accused persons are tried within a reasonable time, not to avoid trials on the merits: see J.F., at para. 32.

73 Numerous trial courts have recently relied on J.F. to apportion some of the delay between the set date appearance and the trial date to defence where it fails to launch a s. 11(b) application in a timely manner. The emerging trend is for the Court to extend a 30-day grace period to the defence following the setting of trial dates, during which time the defence can contemplate a s. 11(b) application. Thereafter, if s. 11(b) is not raised promptly, the delay to trial is shared equally or near-equally between the parties.

74 Based on my review of this developing jurisprudence, the theory underpinning this approach is that 1) the accused is generally aware by the time trial dates are set of whether their rights have been presumptively infringed and, therefore, their duty to act arises at or near the set date appearance: J.F., at para. 31; 2) the late filing of a section 11(b) motion will often deprive the parties of the ability to collaborate and satisfactorily mitigate the delay, likely through seeking earlier dates through trial coordination, if appropriate: see e.g., R v Nigro, 2023 ONCJ 41, R v Wright, 2024 ONSC 1893; R v Osei-Bekoe, 2024 ONSC 3490; and 3) where delay is raised close to the anticipated trial date, the Court may be unable to re-purpose the court time should the matter be stayed, resulting in a waste of limited court resources: R v Vallotton, 2024 ONCA 492, at para. 30; R v C.M., 2024 ONSC 4777, at para. 51.

In R v Mengistu, 2024 ONCA 575, the Court of Appeal for Ontario recently held that if the Crown seeks to apportion some of the trial delay to the defence due to an untimely s. 11(b) application, the Crown must establish 1) that the defence failed to raise s. 11(b) concerns in a timely way; and 2) that the failure contributed to the delay in bringing the matter to trial within the presumptive Jordan ceilings: para. 40 … (Emphasis added)

[55] In the present case, the Crown seeks to apportion all of the 278 days, from the setting of the current trial dates to the first notice of an impending s. 11(b) application, to the defence. I adopt the two-part test set out by Justice McVey. To attribute this time to the Applicant, the Crown must show that delay was not raised in a timely way, and that failing to do so contributed to the delay.

[56] As to the first prong, it is essentially agreed that the issue of delay was not brought up in a timely way. Counsel has admitted inadvertence on his part. The second prong of the test is also satisfied. By not bringing delay to anyone's attention, the Applicant contributed to the delay in that he prevented any other justice system participant from addressing it. The delay was, to use Justice Roberts' words in Osei-Bekoe, "locked in" by the time the 18 August email was sent.

[57] I agree with the Crown that at least some of those 278 days should be attributed to the Applicant. I will follow Justice McVey's notion of a 30-day grace period to contemplate a delay application. This would reduce the period in question to 248 days.

[58] Where I depart from Justice McVey's position is in the idea that the remaining delay should be "shared equally or near-equally between the parties." Doing so, in my view, takes responsibility that is properly on the shoulders of the Applicant and places it on the shoulders of the Crown. As I have already noted above, there was no reason for the Crown to assume the Applicant was unhappy about the pace of the litigation. Absent any sort of intimation from him that he was, there was no burden on the Crown to step into his shoes and solve the problem. Attributing any of the delay beyond that 30-day grace period to the Crown would effectively impose such a burden. Had the Crown been told after those 30 days, and had it tried to obtain earlier dates but been unsuccessful, then certainly responsibility would fall to it. But that is not the evidence before me. We will never know what could have been done to address delay as the Crown was never given the opportunity.

[59] The Crown has argued that the Applicant has implicitly waived delay for the 278-day period. I recognize there is some limited support for that notion in the caselaw. I am bound, however, by the Supreme Court of Canada on this point. At paragraphs 48 and 49 of R. v. J.F. 2022 SCC 17 Chief Justice Wagner stated the following:

48 Waiver must be proved by the prosecution (Askov, at p. 1229). For a court to find that delay has been waived, the accused must therefore take "some direct action from which a consent to delay can be properly inferred" (Askov, at p. 1229). The "mere silence of the accused is not sufficient to indicate a waiver of a Charter right" (Askov, at p. 1229; see also Mills, at p. 929). To be inferable, implicit waiver "requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver" (Morin, at p. 790).

49 Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. In Rabba, Arbour J.A., as she then was, noted that the fact that such a motion is brought after trial "would, in most cases, be fatal" and "would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter" (p. 447). While lateness in bringing a motion for a stay of proceedings may be a relevant factor, it cannot in itself establish waiver. This is how Arbour J.A.'s comments in Rabba must be interpreted. Waiver is established on the basis of an accused's conduct (Askov, at p. 1228), having regard to the circumstances of each case (see, e.g., Warring, at paras. 11-13 and 27).

[60] Justice McVey, in Hillier, confirmed that a failure to file an application in a timely manner did not amount to a waiver (see paragraph 72).

[61] The entire point of the Crown's argument is that the Applicant did nothing in the months leading up to trial. Counsel has candidly taken responsibility for this inaction by saying it was through his inadvertence. The record discloses no "direct action from which a consent to delay can properly be inferred". Without more, late filing of the application cannot by itself establish a waiver. I see no evidence in this case on which to infer an implicit waiver of the Applicant's s. 11(b) rights.

[62] In the circumstances, the entirety of the remaining 248 days will be found to be defence delay.

[63] To be found to be defence delay, the conduct of the defence does not need to be illegitimate in the sense of being improper or nefarious. A failure to take timely action can also be seen as illegitimate, as noted at paragraph 33 of Cody:

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown [page674] counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).

[64] The Supreme Court offers no exception to this reasoning in cases of inadvertence. I suspect this is because the result is the same, regardless of the cause: the ability to grant a defendant a trial within a reasonable time is stymied. By including inaction as a potential example of illegitimate conduct, the Court has expressly underscored the seriousness of failing to move in a timely manner. That is the situation in the present case.

[65] Total defence delay, therefore, is 448 days.

[66] When this amount is subtracted from the total delay of 951 days, I am left with net delay of 503 days, or 16.5 months. As this is below the presumptive ceiling of 18 months, I do not need to consider if any exceptional circumstances are present in this case.

[67] I have not been presented with any evidence to suggest that, despite the net delay being below the ceiling, it was nonetheless unreasonable.

[68] I have not addressed the disclosure issue that brought about the adjournment of the second trial dates in November 2024. It is not necessary to do so. I adopt Justice Gage's ruling in granting the adjournment that it was appropriate in the circumstances given the amount and nature of new disclosure provided close in time to the trial dates. The adjournment was not a result of defence conduct, and no waiver of delay was made.

[69] Likewise, I do not believe counsel availability played a relevant role in the setting of trial dates and so that issue has not been explored in this ruling.

Result

[70] The application will be dismissed.

Released: 1 October 2025

Signed: Justice S. G. Pratt