Court File and Parties

Court File No.: Central West (Peel) Region 998-2331109708 Date: 2025-10-29 Ontario Court of Justice

Between: His Majesty the King — and — Karan Narang

Before: Justice R. Tomovski

Ruling on s. 11(b) Charter Application

Heard on: October 23, 2025 Reasons for Judgment released on: October 29, 2025

Counsel:

• Sakithyan Bala, counsel for the Crown
• Ruaridh McCartney, counsel for the accused Karan Narang

Reasons for Judgment

Tomovski J.:

I. INTRODUCTION

[1] The Applicant's original trial date was scheduled to proceed just over 18 months after the date of the charge. There was apparently no objection from the Applicant, as no s. 11(b) Charter application was brought. The trial did not proceed as scheduled, largely due to defence-related delays. Despite a direction given by the judge to the Applicant and the Crown to ensure the trial coordinator was advised to prioritize rescheduling the trial, that direction was not acted upon. The trial was rescheduled for a year later, with no intervening dates being offered, putting the total delay well over the presumptive ceiling. The Applicant subsequently raised a concern with the delay, which has culminated with his having brought the current application pursuant to s. 11(b) of the Charter alleging a violation of his right to be tried within a reasonable time and seeking a stay of proceedings as a remedy. The key issue is whether, and how, the delay between the original and current trial dates should be apportioned.

[2] The Applicant argues that irrespective of the reasons for the adjournment of the original trial date, the Crown and court failed to prioritize the rescheduling of the trial and are, therefore, equally responsible for the ensuing delay. Conversely, the Crown argues that the Applicant's underestimation of the time needed for trial necessitated an adjournment and the Applicant should be responsible for the entire ensuing delay.

[3] For my reasons that follow, I allow the application. I find that once defence delay is deducted from the total delay, the net delay is above the presumptive ceiling established in R. v. Jordan, 2016 SCC 27 and there are no exceptional circumstances to justify the presumptively unreasonable delay. Although the Applicant's actions resulted in an underestimation of the time needed to complete the trial and necessitated an adjournment, once notice was given by the Applicant that delay was an issue the Crown and court did not take any steps to prioritize the Applicant's case including seeking an intervening Jordan-compliant date.

II. BACKGROUND

[4] The Applicant is charged with operating a conveyance both while impaired by alcohol and while his blood alcohol concentration was over the legal limit. The incident date is August 26, 2023.

[5] The Information was sworn five days later, on August 31. The anticipated end of trial is February 25, 2026, the third day of a three-day trial. As a result, the total delay is 909 days or 29 months and 25 days, which is well over the Jordan presumptive ceiling for unreasonable delay of 18 months for a trial in the Ontario Court of Justice, when the Crown has elected to proceed summarily, which it has in this case.

[6] For analytical clarity, the history of the proceedings can be divided into three phases, as will become apparent in these reasons: the disclosure and crown pretrial phase, the original trial-setting phase and the trial-rescheduling phase.

Disclosure and Crown Pretrial Phase

[7] Starting with the disclosure and crown pretrial phase, the applicable period is from the date the Information was sworn (August 31, 2023) and the date the Applicant finally received core disclosure consisting of video footage of the arrest and the breath room (January 30, 2024), a period of 152 days. This phase can be broken down as follows.

[8] The first court date was September 6, 2023. Initial disclosure was not available. The Applicant followed up with a request for it on September 7. Initial disclosure was provided on September 18. However, it omitted key items, including notes from the arresting officer and breath technician, as well as video footage of the arrest and the breath room. The Applicant wrote to the Crown on September 19, October 6, November 9, and December 15 requesting the outstanding items. The Applicant reiterated his request for outstanding disclosure during the October 11 and December 20 court appearances.

[9] At the December 20 court appearance, the Applicant indicated he would conduct a crown pretrial once core disclosure was received. The matter was put over to January 31, 2024. The following day, December 21, 2023, the Applicant had a meeting with an "R1" crown, who are available every day in this jurisdiction to discuss pretrial issues, to discuss outstanding disclosure.

[10] Core disclosure was finally provided on January 30, 2024. The following day, at the January 31, court appearance, the Applicant put the matter over to March 13 to review disclosure and to have a further crown pretrial. However, it was not until March 6 that the Applicant had a meeting with an "R3" crown, who are not available every day in this jurisdiction. The meeting was scheduled on January 24 for the earliest date of March 6, despite an R1 crown being available every day from when core disclosure was received.

[11] As referenced above, core disclosure was not provided until January 30, 2024, five months after the Applicant was arrested and charged. As I noted in R. v. Van Meeteren, 2025 ONCJ 546, at para. 10, concerns in this jurisdiction regarding disclosure delays persist:

I wish to address what I find is far too common an approach by the Crown that contributes to a culture of complacency that must change to ensure the re-occurrence of this type of delay is prevented. The Supreme Court in Jordan at paras. 4, 29 and 40 referenced a culture of complacency and a tolerance for excessive delay and identified insufficient practices as one contributing factor to that culture. That recognition was nearly 10 years ago. Neither in its written materials on this application nor during its oral submissions did the Crown provide an explanation, or satisfactorily attempt to provide one, for why it took nearly seven months for the Applicant [five months in Mr. Narang's case] to be provided a copy of the alleged victim's statement to police [video footage of the arrest and breath room in Mr. Narang's case], despite numerous requests by the Applicant for it. The statement was recorded on video and obtained prior to the Applicant's arrest [obtained at the time of arrest in Mr. Narang's case]. Many justice system participants – including the accused…and the public – deserve and should expect the Crown to seek out an answer to avoid re-occurrence of this kind in future cases. This approach would align with the framework's prospective approach in taking proactive measures to remedy delay: Jordan at para. 108. While I may not be the first to raise these concerns, as a justice system participant, I share in the responsibility of helping to resolve an apparent Crown and police indifference to remedying the repeated failure to provide timely core disclosure: see R. v. Scott-Wolf, 2024 ONCJ 502 at paras. 57-59; R. v. Stefan, 2024 ONCJ 565 at para. 52; R. v. Smith, 2023 ONCJ 222 at para. 49; and R. v. Hotaki, 2023 ONCJ 261 at paras. 29-33.

Original Trial-Setting Phase

[12] Turning now to the original trial-setting phase, at the March 6 crown pretrial, the Applicant received the Crown's resolution position and a trial estimate form, which noted the time required for trial as 2 days based on the Applicant's input, which indicated no Charter application would be brought, and 0 to 1 defence witness would be called.

[13] Despite having the resolution position and the trial estimate form since March 6, the Applicant appeared at the following three court appearances – March 13, April 10 and May 8 – without having obtained a trial date. Further, it was not until May 6 that the Applicant booked a trial scheduling meeting with the trial coordinator for May 13.

[14] At the trial scheduling meeting, the court offered dates more than nine months away of February 5-6, 20-21 and 25-26, 2025, all of which were available to the Crown but not the Applicant. A 2-day trial of March 4 and 5, 2025 was secured, which is more than 18 months from the date the Information was sworn.

[15] At the May 30 court appearance, the Applicant confirmed the trial dates. He did not seek to set an intervening s. 11(b) Charter hearing or reference any concerns with delay at that stage.

Trial-Rescheduling Phase

[16] Turning finally to the trial-rescheduling phase, I will start by outlining the circumstances which caused the original trial date to not proceed, followed by discussing the circumstances which led to the current trial date being set.

[17] As referenced earlier, the trial was set for two days, to commence on March 4, 2025. Several issues arose that made proceeding as scheduled nearly impossible. First, the Applicant filed a late Charter application (on February 7, five days short of the thirty-day notice under Rule 3.1(1) of the Criminal Rules of the Ontario Court of Justice). Second, as acknowledged by the Applicant, he failed to file the application on the Crown through the latter's centralized "virtual" Crown email address. Instead, the Applicant only served the assigned Crown, who was no longer assigned by the time of the trial, which resulted in the trial Crown not receiving the application until the morning of trial. Third, and perhaps most critical, the Applicant did not indicate during the crown pretrial that a Charter application would be brought (alleging breaches of ss. 7, 8, 9 and 12), which, understandably, did not factor into the trial estimate. Further, the Applicant now intended to call a second Defence witness which also did not factor into the trial estimate.

[18] The Applicant and Crown revised the trial estimate based on the above-noted issues, agreeing that the trial would now take three days to complete. The judge, who was in the process of being transferred to another jurisdiction, agreed with the Applicant and the Crown that it would be faster to complete the trial by securing three new days than to commence the trial and find a continuation date before the same judge, especially since a half day of court time had been expended discussing the implications of the above-noted issues. To ensure faster dates were obtained, the judge directed the parties contact the trial coordinator and the case be given priority.

[19] The parties met the trial coordinator the following day, March 5 to secure a 3-day trial. Despite the judge's direction that priority be given to the matter and the total delay already being over 18 months, the first date offered by the trial coordinator was February 23-25, 2026, a further year away, which was available to both parties. Neither party offered any evidence in this application to suggest that any priority was given in rescheduling the matter including that the trial coordinator was even informed of the trial judge's comments.

[20] The new trial dates were confirmed at the May 28, 2025, court appearance. Notably, when asked if delay was an issue due to the total delay, the Applicant stated, "I don't have instructions but that means that it's likely not an issue given that I don't have any instructions". In response, the Crown stated, "If 11(b) issues change, please let our office know as soon as it becomes an issue". It was not until June 11, 2025, that the Applicant advised that delay was an issue. Once they were put on notice, the Crown and court did not take any steps to try to secure an earlier trial date.

[21] The application proceeded before me on October 23, 2025. I reserved my reasons to October 29, 2025.

III. ANALYSIS

a. The Jordan Framework

[22] Below is a summary of the Jordan framework, as outlined in Van Meeteren, supra, at paras. 24-35.

[23] The Supreme Court in Jordan outlined the framework by which delay is to be assessed under s. 11(b) of the Charter. The framework as it applies to the Ontario Court of Justice is summarized as follows.

[24] There is a presumptive ceiling of 18 months: Jordan at paras. 5, 46, 49, and 105. Delay above that mark is presumptively unreasonable, whereas delay below it is presumptively reasonable: Jordan at paras. 47-48, 68, 82 and 105.

[25] Delay is considered and calculated in different ways at different stages of the framework. At the outset, the total delay must be calculated. This period is calculated from the date of the charge to the end of the trial: Jordan at para. 60. The former equates with the date the Information is sworn: see R. v. Allison, 2022 ONCA 329 at paras. 35-43; R. v. Kalanj.

[26] Defence delay is subtracted from the total delay: Jordan at paras. 49, 60, and 66.

[27] Defence delay can result from an explicit or implicit waiver or delay caused solely or directly by the defence's conduct: Jordan at paras. 61, 63 and 66. An example of the latter is when the Crown and court are ready to proceed but the defence is not: Jordan at para. 64. However, legitimate defence conduct is not defence delay: Jordan at para. 65.

[28] When the delay is above the presumptive ceiling, the onus is on the Crown to establish the presence of exceptional circumstances that justify the delay: Jordan at paras. 47, 68, 81 and 105. Exceptional circumstances are circumstances that are reasonably unforeseen or reasonably unavoidable and the ensuing delay emanating from those circumstances cannot reasonably be remedied by the Crown: Jordan at para. 69. The Crown must show that it took reasonable steps to avoid the delay before the presumptive ceiling was surpassed: Jordan at para. 70. Those steps need not be successful in preventing the delay: Jordan at para. 70.

[29] Generally, exceptional circumstances fall into two groups: discrete events or particularly complex cases: Jordan at para. 71. The former includes medical emergencies or unexpected illnesses, whereas the latter includes cases with novel or complicated legal issues, voluminous disclosure or many witnesses requiring a lengthy trial: Jordan at paras. 77-78.

[30] Like defence delay, delay caused by exceptional circumstances is subtracted from the total delay: Jordan at para. 75.

[31] When the delay is below the presumptive ceiling, the onus is on the Applicant to show that the delay is otherwise unreasonable by establishing that it "took meaningful steps that demonstrate a sustained effort to expedite the proceedings" and the case took "markedly longer than it reasonably should have": Jordan at paras. 48, 82 and 105.

[32] Meaningful and sustained steps include seeking and setting the earliest available trial dates and giving notice when delay is becoming a problem: Jordan at para. 85.

[33] Whether a case took markedly longer considers multiple factors including the case's complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan at para. 87.

[34] Stays beneath the presumptive ceiling will be granted only in clear cases: Jordan at para. 83.

b. The Hanan Principle

[35] I have substantially reproduced below from Van Meeteren, supra at paras. 36-39, in which I summarized the principle in R. v. Hanan, 2023 SCC 12 and subsequent cases that have interpreted the principle.

[36] In Hanan at para. 9, the Supreme Court rejected a bright-line rule of attributing the entirety of ensuing delay to the defence after the rejection of an initial date because of unavailability. Instead, a contextual analysis was emphasized in which all relevant circumstances are to be considered to determine if and how the ensuing delay should be apportioned.

[37] In R. v. Jones, 2025 ONCA 103 at para. 32, the Court of Appeal noted that Hanan did not "adopt an inverse bright-line rule apportioning the defence with none of the delay". The Court at para. 33 reiterated that all relevant circumstances must be assessed to decide how to apportion the delay among the parties: see also R. v. Jacques-Taylor, 2024 ONCA 458 at paras. 5-7; R. v. Shaporov, 2025 ONCA 281 at para. 33; and R. v. M.E., 2025 ONCA 729 at paras. 17-18 and 26.

[38] In R. v. K.D., 2025 ONCA 639, the Court of Appeal further clarified the principle in Hanan. The Court at para. 46 noted, "it is not that the apportionment of delay is warranted in every case, but rather that the circumstances of every case must be considered to determine whether apportionment is warranted".

[39] In R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-48, the summary conviction appeal court identified several factors that would inform any contextual analysis in the apportionment of ensuing delay after the rejection of an initial date. Those factors include the reason for the need to reschedule and whether it was caused by the defence; the extent to which the defence was available; and the reasons for the defence unavailability.

[40] Since my decision in Van Meeteren, the Court of Appeal released M.E., supra, in which it applied the principle in Hanan differently to two separate periods of delay. First, in setting an initial trial date, although the Defence was unavailable for several earlier dates the court offered and the crown was available, subsequent dates offered by the court that the Defence was available, but the crown was not, was held to be a relevant factor. The Court of Appeal at para. 16 stated, "all relevant circumstances, including the fact that on some proposed dates the Defence was not available and on others, the Crown was not available, should be considered". The Court of Appeal apportioned the delay, with the initial period as defence delay and the subsequent period as crown delay.

[41] Second, in the setting of a trial continuation, although the Defence was unavailable for earlier dates offered, there were no further dates offered from the Defence's unavailability to the date chosen. The Court of Appeal at para. 24, referenced its decision in K.D., supra, at para. 45, which noted "the defence cannot fairly and reasonably be held wholly responsible for a span of time largely comprising a period where the court was unavailable". The Court of Appeal added "this is so even if the period of delay began because the defence was not available on the first date offered". The Court of Appeal at para. 25 further added that both the defence and the crown failed to take steps to seek intervening dates from the court, which led to this period of delay being apportioned equally between the defence and the crown.

c. Jordan and Hanan Applied

[42] The total delay in the Applicant's case is from August 31, 2023 (the date the Information was sworn) to February 25, 2026 (the anticipated end of trial). The total delay is 909 days or 29 months and 25 days.

[43] I find that there are four periods of delay that are exclusively defence delay that are to be deducted from the total delay.

[44] First, after the applicant obtained core disclosure, aside from an acceptable amount of time to review disclosure and take necessary next steps (e.g., get updated instructions), which I find to be 14 days, the Applicant then unreasonably delayed scheduling and conducting a crown pretrial. The Applicant obtained core disclosure on January 30, 2024, yet waited until March 6 to conduct a crown pretrial with an R3 crown, instead of opting for an earlier pretrial with an R1 crown. This 37-day period, minus 14 days for review, leaves 23 days. I find this entire remaining period is defence delay.

[45] Subtracting this 23-day period from the total delay of 909 days leaves a net delay of 886 days.

[46] Second, after the Applicant conducted a crown pretrial on March 6 and obtained a trial estimate form, the Applicant unreasonably delayed waiting to set a trial scheduling meeting until May 6. The meeting was held on May 13. This is a period of 68 days is defence delay.

[47] Subtracting this 68-day period from the net delay of 886 days leaves a remaining net delay of 818 days.

[48] Third, when the original 2-day trial was being set, the Applicant was unavailable between the period of February 4 to March 3, 2025, when the Crown and court were ready to proceed. This is a period of 27 days and is defence delay.

[49] Subtracting this 27-day period from the net delay of 818 days leaves a remaining net delay of 791 days.

[50] Fourth, this period starts with when the original trial date was vacated on March 4 and ends with when the Applicant gave the Crown and court notice on June 11, 2025, that delay was now in issue. Several relevant circumstances occurred during this period as I explain below.

[51] I find the Applicant's actions solely caused the need for an adjournment of the original trial date because of his failure to allow for a proper trial estimate to be arrived at. Further, there is no evidence to suggest the Applicant made the Crown or trial coordinator aware the following day at the trial scheduling meeting that delay was an issue, which precluded the latter from taking steps at that time to minimize any ensuing delay. Even further, when the current trial dates were confirmed at the May 28 court appearance, I find the Applicant's comments in response to being directly asked if delay was an issue ("I don't have instructions but that means that it's likely not an issue given that I don't have any instructions") and the Crown's response ("If 11(b) issues change, please let our office know as soon as it becomes an issue"), effectively amounted to an express waiver of delay, overriding the judge's expressed concerns. I find the Crown was entitled to rely on this waiver despite the judge's prior direction that the case be given priority in rescheduling the trial. However, I find the waiver ended once the Applicant gave notice on June 11 that delay was an issue. This period of 99 days is defence delay.

[52] Subtracting this 99-day period from the net delay of 791 days leaves a remaining net delay of 692 days.

[53] The Crown argues that the Applicant's failure to conduct an initial crown pretrial after receiving initial disclosure is properly defence delay. Specifically, the Crown says the relevant period is from September 18, when initial disclosure was received, to December 21, 2023, when an initial crown pretrial was held to discuss outstanding disclosure.

[54] The Crown referred me to Justice Monahan's decision of R. v. Mansour, an unreported decision of the Ontario Court of Justice dated August 29, 2024. However, in that decision it was held that the failure to conduct a timely pretrial was only after "substantial" disclosure had been obtained: see p. 4. Unlike Mansour, the Applicant made multiple requests for substantial disclosure including in writing on four separate occasions, during two court appearances and even conducting an initial crown pretrial, all before receiving substantial disclosure. I find the Applicant's actions were entirely appropriate in insisting on core disclosure before conducting a further crown pretrial or setting a judicial pretrial, especially when the items (i.e., notes of the arresting officer; video footage of the arrest and the breath room) are perhaps the most important items of disclosure in a drinking and driving prosecution that would allow for a meaningful pretrial. Requiring the Applicant to schedule a pretrial simply to remind the Crown, yet again, this time in a different forum, of its constitutional obligation to provide meaningful disclosure is a practice not worth endorsing.

[55] The remaining period of delay is from the original trial date, March 4, 2025, to the anticipated end of the current trial date, February 25, 2026, minus the period of 99 days subtracted for defence delay from March 4 to June 11, 2025 (supra at paras. 50-51). This period of delay (358 minus 99 days) is 259 days.

[56] In applying the principle in Hanan to this period, I am to consider all relevant circumstances in deciding whether, and how, to apportion the delay. Relevant factors include the reason for the need to reschedule and whether it was caused by the defence and court availability in rescheduling the trial.

[57] The Crown argues that the entire period of delay (starting from March 4) ought to be attributed as defence delay. It points to the Applicant's failure to allow for a proper trial estimate to be arrived at (by not advising of its intention to bring a Charter application and call an additional Defence witness), which solely caused the original trial date to not proceed and resulted in a new trial date having to be set. In support of its position, the Crown relies on Justice Singh's decision of R. v. Heron, an unreported decision of the Ontario Court of Justice dated September 3, 2025. Justice Singh at paras. 22-28 attributes as defence delay the Defence's failure to meaningfully engage the crown in pretrial discussions, including not advising that a Charter application would be brought, to arrive at an accurate trial estimate which resulted in the trial not completing and requiring continuation dates, which were 4.5 months away. Although reference is not made to Hanan, Justice Singh appears to have apportioned all the ensuing delay as defence delay.

[58] In applying the principle in Hanan, I find other relevant circumstances present in the Applicant's case that were not present in Heron. Further, I find the Crown's submission in asking for the entire delay to be attributed to the Defence indicative of the bright-line approach that was rejected in Hanan. I find the Crown's position fails to account for the Crown's ongoing role in ensuring any delay is mitigated, especially when put on notice.

[59] At first glance, several relevant circumstances point to the entire period being attributed to the Applicant. The Applicant solely caused the need for an adjournment of the original trial date because of his failure to allow for a proper trial estimate to be arrived at. Further, as referenced earlier, there is no evidence to suggest the Applicant made the Crown or trial coordinator aware that delay was an issue at the time the new trial date was obtained, which precluded the latter from taking steps at that time to minimize any ensuing delay.

[60] There are, however, relevant circumstances that point to the delay being apportioned between the Applicant and the Crown. It appears the Crown did not take heed of the trial judge's direction that priority should be given to the Applicant's matter when new dates were obtained. Further, there is no evidence to suggest the Crown made the trial coordinator aware that delay was an issue at the time the new trial date was obtained, which precluded the latter from taking steps at that time to minimize any ensuing delay. The difference between the Applicant and the Crown in this circumstance (i.e., notifying the trial coordinator of the judge's direction) is that the latter has an ongoing responsibility to minimize delay especially when it is above the presumptive ceiling. The Crown effectively accepted a single trial date offered nearly 12 months away (compared to only 4.5 months away in Heron), even though the delay at that point was already over the presumptive ceiling (compared to Heron where the delay was below the presumptive ceiling). Even further, although I have found the Crown was initially entitled to rely on the Applicant's waiver despite the judge's direction that the case be given priority, once that waiver ended on June 11, eight months prior to the current trial date, the Crown did not take any steps to prioritize the Applicant's case including seeking an intervening Jordan-compliant date.

[61] The court shares in the responsibility to minimize delay. The Applicant's case at the original trial date was already above the presumptive ceiling. Once it was determined the trial would not proceed, in rescheduling the trial, the court's offer of a single date a year away, putting the total delay at 29 months and 25 days, was simply contrary to efforts to minimize delay. Like the Crown, the court took no steps to minimize the ongoing delay. The Defence was not offered any earlier, reasonable dates.

[62] As referenced, there are relevant circumstances for and against apportioning the entire period of delay to the Applicant. I have decided not to apportion the entire period to the Applicant. I rely on the Court of Appeal's recent comments in M.E. at para. 24:

[T]he defence cannot fairly and reasonably be held wholly responsible for a span of time largely comprising a period where the court was unavailable. This is so even if the period of delay began because the defence was not available on the first date offered

[63] In M.E., the delay was apportioned equally between the Crown and the Defence. I see no rational basis to depart from similarly apportioning the delay in this case equally between the Applicant and the Crown. As such, 129.5 days of the 259 days should be attributed as defence delay.

[64] Subtracting this 129.5-day period from the net delay of 692 days leaves a remaining net delay of 562.5 days or 18.5 months. As such, the onus falls on the Crown to rebut the presumption of unreasonableness. I find that it has failed to do so.

[65] Having already attributed all the delay in the case, there are otherwise no exceptional circumstances. The Applicant's case is not a complex one. It is a "routine" drinking and driving prosecution. The Applicant's Charter application is not suggestive of novelty or complexity even with a s. 7 excessive force argument. It simply suffered from late service, albeit five days short of the required notice of 30 days. The assigned crown failed to ensure the trial crown was made aware that a Charter application had been served, an unexplained breakdown in the notion that the Crown is a single indivisible entity. As referenced earlier, the Crown (and court) did not take any steps to minimize the delay once the presumptive ceiling was breached and when it was breached even more.

[66] It is unfortunate that these charges cannot be adjudicated on their merits due to unreasonable delay.

V. CONCLUSION

[67] The application is granted, and the charges are stayed.

Released: October 29, 2025

Signed: Justice Tomovski