ONTARIO COURT OF JUSTICE

DATE: 2025 12 10

COURT FILE No.: Sudbury 4011-998-23-40102993-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

KIMBERLY-ANN BEITES

Before Justice G. Jenner

Mid-trial Request Heard on December 4 and 9, 2025

Reasons for Judgment released on December 10, 2025

M. Wlodarczyk — counsel for the Crown

S. von Achten and D. Rosso — legal representatives for the defendant

JENNER J.:

I. Introduction

[1] On November 6, 2025, I found Ms. Beites guilty of two counts of uttering threats: 2025 ONCJ 582. Sentencing was adjourned, at her request, to January 26, 2026. She now seeks that a date be scheduled for an application for a stay of the proceedings for unreasonable delay, pursuant to ss. 11(b) and 24(1) of the Charter. For the reasons that follow, I decline to hear that application.

II. Analysis

The Duty to Address Delay in a Timely Manner

[2] In R. v. J.F., 2022 SCC 17, the Supreme Court of Canada held that an accused person must raise the unreasonableness of trial delay in a timely manner and generally must apply for a remedy before their trial is held: para. 3. The court emphasized the following:

• The framework in R. v. Jordan, 2016 SCC 27, requires the accused, and indeed all parties, to be accountable and proactive about delay: para. 31.

• The defence may not benefit from its own inaction or lateness in acting, and the accused is expected to use court time efficiently: paras. 32-33.

• An accused who sees delay lengthening must respond proactively. As with any application, a s. 11(b) application must be brought reasonably and expeditiously: para. 34.

• Lateness in bringing a s. 11(b) application is contrary to the proper administration of justice, because it wastes judicial resources: para. 34.

• Prompt applications put the Crown and court on notice such that they can take measures to mitigate delay and expedite proceedings: para. 34.

• Generally, an accused who raises delay after trial, and in particular after conviction, is not acting in a timely manner: para. 35.

• Exceptionally, a s. 11(b) infringement will reveal itself only once the trial has begun, but the accused must still act proactively: para. 36.

[3] The Court of Appeal for Ontario recently applied these principles in R. v. MacLaughlin, 2025 ONCA 686, upholding a trial judge's determination not to adjourn sentencing to permit a s. 11(b) application to be argued following a finding of guilt. The court observed that the defence had not raised the delay issue months earlier when it first became clear that the trial would not be completed as originally scheduled. The court characterized the defence application as "a last minute gambit designed to delay the prosecution of the case." The court held the trial judge was entitled to refuse the adjournment on the basis that the accused did not comply with his "duty to act proactively", citing J.F.: see McLaughlin, at paras. 31-35.

[4] I come to a similar conclusion in the present case.

Relevant Procedural History

[5] Evidence was heard in this trial over four days (September 20, 2024; April 23, 2025; September 8, 2025; and October 23, 2025). Closing submissions were made on November 6, 2025. On September 8, 2025, the defence advised that although a stay application was not initially contemplated, a subsequent development relating to outstanding disclosure rendered such an application "essential." I set clear expectations: absent circumstances beyond the accused's control, all contemplated applications, including under s. 11(b), were to be brought on the continuation date. The first hour of the return trial date would be reserved for the s. 11(b) application.

[6] The matter appeared before me again on September 17, 2025. This was merely a scheduling appearance to confirm a continuation date of October 23, 2025. At that time, I confirmed my expectation that the first hour on that date would be devoted to hearing the contemplated s. 11(b) application. The defence advised they remained hopeful they would have the necessary transcripts compiled in time. I conveyed to the parties that I would not delay the trial if the s. 11(b) application was not ready, and that if counsel had been diligent but there was an issue with the s. 11(b) proceeding that day, we would address that in due course.

[7] On October 23, 2025, having not received any notice of Charter application, I inquired—repeatedly—whether defence counsel intended to pursue any previously discussed applications, including for a stay. Counsel unequivocally indicated they were not bringing an application. The trial proceeded, culminating in findings of guilt on November 6, 2025.

[8] It was only after findings of guilt that, on November 12, 2025, defence counsel advised of their intention to bring a s. 11(b) application. The Crown requested a conference to address this issue.

[9] On December 4, 2025, defence counsel and Crown counsel appeared before me. Ms. Beites was not present. Both parties consented to addressing issues of process in the absence of the accused pursuant to s. 650(1.1) of the Criminal Code. Asked why the s. 11(b) application was not brought at an earlier juncture, defence counsel advised that Ms. Beites "wanted the acquittal" and "now must pursue a technical defence." Asked why the defence did not communicate that conditional intention on October 23, 2025, defence counsel advised it was because at that time the accused was still pursuing the trial to secure an acquittal.

[10] I indicated my concerns with hearing the application in the circumstances, referred both counsel to the decisions in J.F. and MacLaughlin, and, to comply with s. 650 of the Criminal Code, adjourned the matter for brief submissions with Ms. Beites present. On December 9, 2025, in the presence of Ms. Beites, I heard those submissions.

Applying the Duty to this Case

[11] I reject the defence submission that J.F. is distinguishable solely because it concerns a retrial. While J.F. addresses some s. 11(b) issues specific to retrials, the principles cited above are not limited to that context. J.F. is explicit about that, at para. 3, and indeed the principles have been applied broadly, including in MacLaughlin (see also R. v. Yizhak, 2022 ONCJ 476, at paras. 25-35).

[12] Defence counsel asserts that the decision to await a potential acquittal before bringing the s. 11(b) application reflects an "absolute right" to determine the timing of such applications. No other factor is advanced to explain the delay. This is not a case where, despite diligence, some component of the application record was incomplete, nor is it a case where new facts have recently arisen to extend the overall delay.

[13] This is, rather, a case where the defence, possessed of all the relevant information about delay in the matter, made a tactical decision to await the outcome of trial before pursuing their application. That approach, and the assertion of an "absolute right" to determine timing, is completely inconsistent with the direction in J.F. The tactical decision impeded the Crown's and court's ability to mitigate further delay. It engaged two further days of finite judicial and prosecutorial resources for a trial that might, if the s. 11(b) application was meritorious, have been unnecessary. Those were resources which might have been reallocated to other matters. The court provided Ms. Beites with the opportunity to argue the delay issue that arose mid-trial. She declined. Applying the principles in J.F., it would be contrary to the proper administration of justice to permit the application to be pursued at this juncture.

III. Conclusion

[14] Ms. Beites has not complied with her duty to be proactive and to bring her application in a timely manner. The court will not hear her application. Sentencing remains scheduled on January 26, 2026.

Released: December 10, 2025

Signed: Justice G. Jenner