ONTARIO COURT OF JUSTICE

DATE: November 14, 2025

COURT FILE No. 1260-999-00-3398736F

BETWEEN:

HIS MAJESTY THE KING (Appellant)

-- AND --

KANWALJIT GREWAL (Respondent)

Before Justice Brian G. Puddington

Heard on September 12, 2025

Reasons for Judgment released on November 14, 2025

Christopher Zenko — agent for the appellant

Nobody appeared for the respondent Kanwaljit GREWAL

PUDDINGTON J.:

Contents

• OVERVIEW
• FACTS
• ANALYSIS
• CONCLUSION

OVERVIEW

[1] Under section 11(b) of our Charter of Rights and Freedoms, any person charged with an offence has the right to be tried for that offence within a reasonable time. In order to determine what constitutes a "reasonable time", there must be a clear start and end time.

[2] The "end time" in this case was not in dispute. Where the parties disagreed was with respect to when the clock started.

[3] The prosecution submitted that the relevant time period started when Mr. Grewal decided he wanted a trial. In this case, that would be after the completion of the early resolution meeting that Mr. Grewal had requested. After meeting with the prosecution, Mr. Grewal decided he did not want to resolve his charges and instead requested a trial.

[4] The defence proposed, and the Justice of the Peace in this case ultimately agreed, that the total delay in this case was from the moment the certificate of the offence was filed until the anticipated end of trial. His Worship did not find any time to be defence delay or an exceptional circumstance.

[5] For the reasons that follow, and with the utmost of respect, I find that the Justice of the Peace erred in his calculation of the relevant time periods, and the Crown appeal is allowed, requiring a new trial.

FACTS

[6] The facts underlying the section 11(b) application are not in dispute. Mr. Grewal was charged on January 28, 2023 with careless driving. It appears from the record that the certificate of offence was filed on January 30, 2023. On February 3, 2023, Mr. Grewal filed an early resolution request, which is option 2 on the back of the certificate of the offence. The date provided for that early resolution was February 6, 2024 – 1 year and 3 days later.

[7] The early resolution meeting took place as scheduled, and it was at this time that Mr. Grewal decided he wanted to have a trial. The anticipated end date for that trial was August 27, 2024, approximately 19 months after the filing of the certificate of the offence. [^1] This "total delay" is above the 18 month presumptive ceiling set in the Supreme Court of Canada's decision in R. v. Jordan, 2016 SCC 27 and therefore demands an analysis of its reasonableness.

ANALYSIS

[8] As stated, the issue in this appeal is when the clock starts and whether His Worship erred in law in his classification of the time periods.

[9] A review of the jurisprudence on this issue reveals that the time period for these types of offences starts when the accused elects to have a trial.

[10] In Mississauga (City) v. Gordan, 2016 ONCJ 587, a decision rendered by this court on October 3, 2016, after the Supreme Court of Canada's July 8, 2016 decision in Jordan, the time from the offence to the trial was 13 1/2 months. As in this case, there was a request by the defendant in Gordan for an early resolution meeting. The time from the charge to the early resolution meeting was 7 months, though in Gordan the early resolution meeting was set by default, because the accused hadn't actually checked any of the options on the offence notice.

[11] That being said, Justice Duncan of this court found in Gordan at paragraph 15 that "the time to the resolution meeting should have been excluded by the trial justice from the 11(b) calculation. Had he done so, he would have inevitably and correctly dismissed the 11(b) application." His Honour found support for this finding in the decision of Mississauga v. Lam, 2012 ONCJ No. 5594. In that case, the total amount of delay was 18 months and 29 days. [^2] In dismissing the 11(b) application, the justice in Lam found at paragraph 61:

On the question of how to treat the five-month delay from April 29, 2011, to September 29, 2011, that is associated with the scheduling and holding the first attendance meeting with the prosecutor, that period can be regarded as an implicit waiver by the defendant since the defendant had opted on April 29, 2011, to have a voluntary or optional first attendance meeting with the prosecutor; however, since the purpose or function of the first attendance meeting is for the resolution of the charge then it is more suitable and practicable for the 11(b) paradigm to find this delay as part of a "neutral intake period" that is to be deducted from the overall length of delay. (Emphasis added).

[12] Again, Gordan (at the trial level) and Lam were decided prior to Jordan, and prior to the presumptive ceiling of 18 months articulated in that case. Under the Jordan framework, courts no longer deal with "neutral intake" periods of delay. As correctly pointed out by the Justice of the Peace in the present case, we must instead look to defence delay, either explicit or implicit or exceptional circumstances, which include discrete events or particularly complex cases.

[13] For clarity, the Jordan framework was helpfully summarized by Gillese J.A. in R. v. Coulter, 2016 ONCA 704 at paragraphs 34-41, as follows:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (Jordan, at para. 47).
• Subtract defence delay from the total delay, which results in the "Net Delay". (Jordan, at para. 66).
• Compare the Net Delay to the presumptive ceiling. (Jordan, at para. 66).
• 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).
• 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).
• 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).
• 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).

[14] Defence delay has two components. The first is delay waived by the defence. "Waiver" can be explicit or implicit, but in either case, it must be clear and unequivocal. (Jordan, at para. 61). The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay involves those situations where the accused's acts either directly caused the delay, or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.

[15] As I have already mentioned, despite Gordan being decided at the trial level before Jordan, I find that Justice Duncan's reasoning (post-Jordan) in that case is still sound in the post-Jordan age. As His Honour notes in the third endnote of that decision:

An election to pursue resolution is considered to be a waiver of ensuing delay to the point of change of course toward trial: Lam supra. See also recent Court of Appeal decision R v Coulter, 2016 ONCA 704 where the Court considered most of the time that the case was "on a resolution path" to have been specifically or impliedly waived. (Emphasis added).

[16] Section 11(b) of the Charter protects a trial within a reasonable time. If the accused is looking to resolve the matter, they are not at that point pursuing a trial. They are on a different path – a path that is not covered by the section 11(b) right to a trial within a reasonable time. A person issued a certificate of an offence is presented with a choice. They can choose to have a trial, or they can choose to try and resolve the matter. In Mr. Grewal's case, he chose to try and resolve the matter, and therefore he should be seen to have waived his time to a trial up and until he changed his mind and wanted a trial.

[17] This is a different dynamic than a criminal trial. When someone is charged with a criminal offence, they are immediately on the path towards a trial, and the clock starts as soon as the information is laid. There is no option for the criminally accused to check a box and try to "resolve" the matter. The state has charged them, and the state is obligated to get them to trial in a reasonable time in accordance with section 11(b) of the Charter and the framework outlined in Jordan. When a defendant selects a path other than a trial in a Highway Traffic Act matter, however, they have essentially waived their right to a timely trial until such time that they choose to have a trial.

[18] The Justice of the Peace in this matter appears to agree with this analysis, at least from his own reasoning in a recent decision of Burlington (City) v. Eshed, 2024 ONCJ 299. In this decision, His Worship found that 16 months and 10 days between a reopening decision and an early resolution meeting was defence delay. In his Worship's view, it was appropriate in that case to "re-start" the clock after the early resolution meeting on October 24, 2023, because "until that point the applicant had not made clear her intention to have a trial" (Eshed at para. 37). In support of this finding, His Worship cites R. v. Guiste, 2022 ONCJ 575, where at paragraph 26, the Justice of the Peace found that "an appropriate starting date to begin the deduction of delay is the date of the early resolution meeting".

[19] I agree with the decisions in Eshed and Guiste, both cases that were decided under the Jordan framework, and both of which are consistent with Justice Duncan's analysis in Gordan.

[20] With respect to the thorough and thoughtful reasons of the Justice of the Peace in this case, I disagree with His Worship when he states at paragraph 14 that "it would be counterproductive to effectively penalize defendants who choose [to have an early resolution]." A defendant is not "penalized" because the time between the charge and the early resolution meeting is not counted on the 11(b) clock. It was always open to the respondent, upon learning of the length of time it would take to get an early resolution, to then change his mind and seek a trial instead. He did not do so. In fact, he did nothing to move the matter along. He is not "penalized" by having this time categorized as defence delay. He is merely not having the time he was clearly pursuing a resolution added to the calculation of delay in an 11(b) analysis. He always had the option to pursue a trial. The moment he did, the state was obligated to have his trial scheduled and heard within a reasonable time, in compliance with his 11(b) Charter rights.

[21] Up until the time Mr. Grewal elected to have a trial, the entire system was operating on the understanding that it was on the path to resolution. Possible trial dates came and went while he travelled the potential resolution path. When that resolution was not to his satisfaction, Mr. Grewal was absolutely entitled to then decide to have a trial. Changing his mind, however, does not change the fact that the time leading up to his election to have a trial was an implicit waiver of delay.

CONCLUSION

[22] When the time between the filing of the certificate of the offence and the early resolution date are deducted as defence delay, then the time to trial falls well below the Jordan ceiling. The approximate 19 months of delay now becomes a net delay of approximately 7 months.

[23] When the delay is below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. Unfortunately, despite being made aware of the date for his appeal, Mr. Grewal did not attend at his appeal, nor did he appear at the interim date that was set prior to the hearing. I therefore do not have any submissions from the defence as to why approximately 7 months delay between electing to have a trial and the end of that trial is unreasonable. Given that 7 months is 11 months below the presumptive ceiling, however, I have little difficulty finding that the net delay in this case was reasonable in the circumstances.

[24] I want to be clear, nothing in these reasons should be interpreted as saying that having to wait 12 months for an early resolution meeting is appropriate. In this case, what appears to have justifiably upset the Justice of the Peace is the outrageous amount of time it took to have a phone call with a prosecutor. 12 months is, frankly, ridiculous. If the Province or Municipality wish to provide this option to those charged with driving offences, it has to be done sooner. No good reason was provided to the Justice of the Peace in this case as to why it took as long as it did to have, what I'm sure, is no more than a 5 to 10 minute conversation with a prosecutor.

[25] While I have found that the time leading up to an early resolution meeting is defence delay, I would caution the prosecution and hope that these timelines have significantly shortened since this case. If not, I suspect that rather than individuals opting for a resolution meeting, they will simply elect a trial. This will result in the clock starting the moment they make that election, and will leave the prosecution, administration and the courts scrambling to find trial time. The chaos and backlog that will flow from that is obvious and inevitable.

[26] "Early" resolution in this matter was a misnomer. There was nothing "early" about it. To effectively address the high volume of cases in the Provincial Offences Act courts, prosecutors need to have resolution discussions at an early stage – not over a year after the offence occurs.

[27] Those words of caution aside, I ultimately find that the Justice of the Peace erred in his calculation of the defence delay and the appeal is therefore allowed. All of the evidence having already been heard, including submissions on the trial proper, the appropriate remedy would be, as requested by the prosecutor, to send the matter back to the Justice of the Peace to render a decision on the trial proper. Unfortunately, pursuant to section 138(2) of the Provincial Offences Act, where the appellate court directs a new trial, "it shall be in the Ontario court of Justice presided over by a justice other than the justice who tried the defendant in the first instance", unless there is a consent of the parties that it go back before the original justice. As mentioned already, Mr. Grewal did not participate in this appeal, and I cannot therefore obtain his consent to send it back to the same justice. A new trial, before a different justice, is therefore ordered.

Released: November 14, 2025

Justice B.G. Puddington

[^1]: The trial didn't actually finish until September 20, 2024, but for the purposes of this appeal, I will use the end date stipulated by the Justice of the Peace, as His Worship made no mention of how that additional time should be classified.

[^2]: Coincidently, 18 months and 29 days was the exact amount of delay found by the Justice of the Peace in the case at bar.