ONTARIO COURT OF JUSTICE

DATE: 2025 12 17

COURT FILE No.: Toronto 4810 998 24 48105003

BETWEEN:

HIS MAJESTY THE KING

--- AND ---

KASHIF YOUSAF

Before Justice R. Wright

Heard on December 3, 2025

Reasons for Decision released on December 17, 2025

K. Garrett -- counsel for the Crown

A. Shah and T. Mauti -- counsel for the accused

R. WRIGHT J.:

[1] On January 31, 2024, an Information was sworn charging Kashif Yousaf with two counts of intimate-partner assault. A four-day trial was scheduled for September 2-5, 2025, which was adjourned on consent in August of 2025. Mr. Yousaf has explicitly waived the delay from that trial date to the next scheduled trial date, which is scheduled to conclude April 1, 2026. The parties therefore agree that the time for consideration on this motion runs from the date the Information was sworn to the first day of the first scheduled trial, September 2, 2025.

[2] Mr. Yousaf applies for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms ("Charter") on the basis that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been violated.

[3] In *R. v. Jordan*, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice ("OCJ"), not including delay attributable to the defence, beyond which delay is presumptively unreasonable. It is helpful to refer to the ceiling and the periods in my analysis by days rather than months. That means that there is a ceiling of 547 days, excepting any time that is appropriately deducted due to defence delay.

[4] The total delay in this case to the anticipated last date of trial is 792 days. Accepting the concession that the period after September 2, 2025, is defence delay due to the explicit waiver, the total period remaining for consideration amounts to 581 days (34 days above the presumptive ceiling).

[5] This case turns entirely on whether any additional portions of time are deducted as defence delay. The parties disagree over three periods:

(1) 50 days when the Crown submits the Defence should have set a Crown Pre-Trial ("CPT");

(2) 73 days when the Crown submits the Defence should have set the matter down for trial; and,

(3) 21 days after the matter was set for trial, at which time first notice was given to the Crown that delay was in issue.

The Chronology of Events

[6] The total delay from the date the Information was sworn to the anticipated end of trial is 792 days.

[7] The Applicant's first court appearance after bail was March 14, 2024. He was self-represented. He requested disclosure.

[8] When he returned to court on April 18 and May 23, 2024, the Crown still had not provided disclosure. The Crown's disclosure management documents show that disclosure was shared by email directly to the accused on May 29, 2024. This is considerably longer than it should have taken for initial disclosure to be provided in this case.

[9] At his next appearance, June 21, 2024, he indicated he had not received disclosure by email. He was advised to follow up with the office in person. He was asked if he had retained counsel and advised that he had not yet done so.

[10] On the next appearance, July 26, 2024, counsel appeared for the Applicant and indicated that he had been recently retained and was awaiting further disclosure. A designation of counsel dated July 6, 2024, is attached to the Information, indicating that counsel was retained as of that date.

[11] Further disclosure was shared with counsel on July 31, 2024. This included the body worn camera ("BWC") statement of the complainant (the primary witness for the Crown), a second BWC video, the 911 audio, and the booking video of the accused.

[12] On the next appearance, August 30, 2024, counsel indicated that he was waiting on a piece of disclosure, a BWC video, in which the officer had been alone for a period of time with "the client." The Crown took the position that sufficient disclosure had been provided for a CPT and asked the Court to require a CPT. Counsel agreed that a CPT would be held and indicated his intention to conduct both a CPT and a Judicial pre-trial ("JPT") prior to the next appearance. He requested a slightly longer adjournment in order to accomplish both. His request was granted, and the matter was adjourned to October 18, 2024.

[13] On October 18, 2024, counsel appeared and advised that he now had full disclosure and that a CPT was scheduled for the following week. He also advised the Court that it was his intention to hold a JPT or another CPT before the next date.

[14] On November 29, 2024, counsel appeared and advised that there was a need to wait for movement on the matter due to a related pre-enquete and further outstanding disclosure. The matter was further adjourned.

[15] The matter was next addressed on January 24, 2025. A JPT date had been scheduled for the following Monday, January 27. The matter was adjourned to a date in February for the express purpose of allowing the parties to obtain trial dates after the JPT.

[16] The matter was next addressed on February 24, 2025. Counsel appeared and advised the court that he had not yet secured dates for a four-day trial. No reason for this was put on the record. He asked for a lengthy adjournment into April to allow the separately running private information time for preparation. The Crown suggested a shorter remand, but ultimately agreed to an adjournment into April anticipating that trial dates would be arranged in the interim.

[17] On April 14, 2025, when the matter returned to court, trial dates had not been secured. Counsel advised that a trial scheduling conference was set for April 25, 2025. It appears from the correspondence record filed that this trial scheduling conference was only arranged after the assigned Crown emailed counsel on April 9, 2025.

[18] On May 15, 2025, the September 2-5, 2025, trial dates were noted on record (the transcript for this proceeding was not filed, but the Information confirms the appearance and trial dates being set). It appears from the correspondence record that this is also the date on which the Crown was first put on notice of the Applicant's intent to seek a stay for delay.

[19] The remaining appearances up to the adjournment of the September trial dates relate to the adjournment request and a dispute between the Crown and the Applicant about a specific piece of potential disclosure that remains unresolved. Given the explicit waiver from September 2, these appearances do not require further consideration in my analysis.

The Analytical Framework

[20] The primary purpose of s.11(b) of the Charter is to protect the individual rights of accused persons, namely:

• the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges;
• the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
• the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh.

[21] The secondary purpose of s. 11(b) is to protect the interests of society. This includes seeing that citizens who are accused of crime are treated fairly, and the public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial.

[22] A decision as to whether s.11(b) has been violated "is not to be made by the application of a mathematical or administrative formula, but by a judicial determination" that takes a "bird's eye view" of the proceedings.

[23] In *R. v. Jordan*, 2016 SCC 27, the Supreme Court provided the framework for assessing an Application under s. 11(b):

A. the total delay from the laying of the charge to the anticipated end of the trial must be calculated.

B. once that period is determined, any delay attributable to the defence must be subtracted to determine the net delay. Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay.

C. where the net delay in the provincial Court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. In general, exceptional circumstances fall into two broad categories: (1) discrete and exceptional events, or (2) particularly complex cases. However, the list of exceptional circumstances is not closed. In addition, the Crown must show that it could not reasonably remedy or prevent the delays from those exceptional circumstances.

D. If the Crown fails to establish both exceptional circumstances existed and that its/the system's response to the circumstances was reasonable, a stay must be entered. If the Crown meets these two hurdles, the Court must calculate the number of months of exceptional delay and subtract that from the remaining delay. If the result is above the 18-month ceiling, the delay is unreasonable, and a stay must be entered.

E. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.

Application of the Framework

A. Total Delay From the Laying of the Charge to the Anticipated End of Trial

[24] The total delay in this case is 792 days.

B. Subtracting Delay Attributable to the Defence

[25] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence.

[26] There is an explicit waiver of delay from September 2, 2025, to March 30, 2026. Subtracting this period of time leaves 582 days to be considered.

[27] The Crown submitted that three further periods of time should be considered as defence delay and result in deductions:

(1) The time after which substantial disclosure had been provided to defence until the first CPT was scheduled;

(2) The time after the JPT had been conducted but before a trial scheduling conference was set;

(3) The time after trial dates had been secured but the Crown and Court were not given notice of the stay Application.

[28] The Applicant submitted that none of this time amounts to defence delay as all of the actions in this time were legitimately taken to respond to the charges and outstanding disclosure issues.

Analysis

[29] The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay. In *R. v. Jordan*, 2016 SCC 27, the Supreme Court noted at para. 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.

[30] There was significant delay at the outset of this case in retaining counsel. The Information was sworn January 31, 2024. Counsel was not retained until July 6, 2024. The Applicant submitted that this delay in retaining counsel was appropriate as the Applicant was still awaiting his disclosure. The record demonstrates that his disclosure had been available and shared to his email address as of May 29, 2024. He did not secure it until he physically attended the Crown's office at the end of June. Appreciating that it is sometimes difficult for persons to navigate the criminal justice system, there is no reason to wait for disclosure before retaining counsel who would conceivably be in a position to assist with some of the difficulty navigating the system. Appreciating also that some time is necessary to seek out and retain counsel, I am of the view that the time in this case was more than is reasonable.

[31] That said, the provision of initial disclosure in this case also took markedly longer than is appropriate. As such, the Crown has rightfully not submitted that any of this portion of time should be deducted from the total delay in this case. However, I reference it as it appears to me that the Applicant began this matter with a certain approach to the passage of time and that approach has continued throughout. That approach is not one of a sustained effort to expedite the proceedings.

Setting a CPT/JPT

[32] As of July 31, 2024, the Applicant's counsel had substantial disclosure in the matter, including the statement of the complainant. On August 30, 2024, counsel told the court that he was waiting on a piece of disclosure, a BWC, in which the officer had been alone for a period of time with "the client." The Crown took the position that sufficient disclosure had been provided for a CPT and asked the court to require a CPT be conducted. Counsel agreed that he had enough disclosure for a CPT to be held and indicated to the Court his intention to conduct both a CPT and JPT prior to the next appearance. He requested a longer adjournment in order to accomplish both.

[33] When he returned to court on October 18, 2024, neither a CPT nor a JPT had been conducted.

[34] By October 24, 2024, a CPT had been conducted. It turns out the missing BWC contained a period of time where an officer was alone with the complainant, not with "the client." Counsel appears to have now taken the position that this disclosure was necessary prior to a JPT, although the court was never advised that this was his position. A JPT was not held until January 27, 2025.

[35] The adjournment from August 30 to October 18, 2024, was granted on the representation that both a CPT and JPT were to be held in that time. The BWC disclosure that had remained outstanding was a second recording, from a second officer, of the statement of the complainant that had already been provided. It is difficult to understand how it was necessary disclosure in order to determine the issues and estimate time for trial. In submissions before me, counsel was unable to explain why this disclosure necessitated delaying the setting of the CPT or JPT.

[36] The Crown was also not acting with any expediency to move the matter forward through the fall. Two set date appearances occurred without the Crown requiring a JPT be set and with the Crown appearing to agree, at least implicitly, that the disclosure should be provided prior. It is no wonder that the presiding jurists agreed to the adjournments when the Crown was not opposing them.

[37] When it comes to meaningful set date appearances, counsel and the Crown need to properly advise the court of the state of disclosure so the court can determine whether to grant requested adjournments. Further outstanding disclosure often becomes apparent as a matter moves through the system, but that does not appear to be what happened here. In terms of the disclosure required to move the matter to a CPT and JPT, counsel had advised the court on August 30 that he had sufficient disclosure to conduct both of those steps prior to October 18. Yet neither was conducted.

[38] In my view, some of the delay that followed must be properly considered as delay occasioned solely by the actions of the defence. If an Applicant chooses to delay case management steps in a matter after having told the Court that they have sufficient disclosure to conduct those steps, then an Applicant cannot benefit from that delay. To hold otherwise would be to deny the Court the proper oversight.

[39] Given my view that the Crown was also not acting to move the matter forward expeditiously, it would be inappropriate to deduct the full period of time as defence delay. The Crown submitted that the period between August 14, 2024, two weeks after substantial disclosure had been provided, and October 2, 2024, when counsel requested a CPT, should be deducted.

[40] In my view, there is merit to deducting this period of time. Nothing changed from the perspective of disclosure between July 31, 2024, and when the CPT was conducted on October 24. It is unclear why there was delay in setting the CPT. Rather than an artificial date of two weeks after receipt of disclosure, I would deduct the 33 days from the August 30 court date to the October 2 request for CPT. It is this period of time that is truly entirely within the actions of the defence and when the court had no oversight or ability to order the parties to move forward.

[41] Deducting that amount leaves a further 549 days to be considered.

Setting a Trial Date

[42] The matter was addressed on January 24, 2025, three days prior to the JPT. The matter was adjourned to a date in February for the express purpose of allowing the parties to obtain trial dates after the JPT.

[43] On February 24, 2025, counsel appeared and advised that he had not yet secured dates for a four-day trial. No reason for this was put on the record. The Applicant then argued for a lengthy adjournment into April from this appearance date.

[44] When the matter returned April 14, 2025, trial dates remained unsecured. Again, there was no reason for the delay offered.

[45] The trial scheduling conference was held April 25, 2025, and the September trial dates were obtained.

[46] The Crown submits that this period of time should be deducted as defence delay. The Crown cites that it is counsel who must confirm that their instructions are to proceed to trial and set a trial scheduling conference.

[47] I agree. The Applicant had advised the court that the matter was going to trial prior to the JPT being conducted. No steps were taken to set a trial scheduling conference until the Crown followed up in April. It is counsel for the accused who controls the setting of a trial scheduling conference.

[48] In my view, it would have been reasonable to have conducted the trial scheduling conference prior to the February 24, 2025, appearance and to have put trial dates on the record at that appearance. At that appearance, the Crown suggested a remand of less than a month, but the Applicant requested the adjournment into April, then still returned to court without having secured trial dates.

[49] This is 60 days of unexplained and inexcusable delay from February 24, 2025, to April 25, 2025, which is entirely attributable to the defence. Deducting this period leaves 489 days. This is below the Jordan ceiling.

Late Notice of Stay Application

[50] The Crown submits that a further deduction is appropriate to reflect that notice of the stay Application was not provided until three weeks after the trial dates had been secured.

[51] While I agree that, in some cases, late notice of such an Application might be cause for a deduction of time, in this case that lack of notice did not result in any delay. There is also no evidence that, had the court and Crown been put on earlier notice, earlier trial dates could have been secured. Nor is there any indication that the Crown made any attempt to get earlier dates once it was put on notice.

[52] In these circumstances, it is not appropriate to deduct any time for the lack of prior notice.

E. If the Result is Below the Ceiling

[53] In order to justify a stay of proceedings where the net delay is below the Jordan ceiling, the Applicant must show (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

[54] The Applicant fails on the first prong. In this case, the Applicant:

(1) Waited approximately five months to retain counsel;

(2) Delayed the setting of a CPT for 33 days without explanation;

(3) Delayed the setting of a JPT for several months while awaiting a piece of disclosure that would not impact estimating time for trial or motions;

(4) Delayed the setting of a trial scheduling conference for a further 60 days without explanation; and,

(5) Waited until after trial dates had been set to give notice of and file an application for a stay of proceedings.

[55] Put simply, that is not a sustained effort to expedite proceedings. Rather, the record in this case demonstrates that the Applicant was more than content to move the matter forward at the rate at which it progressed.

[56] I am also not satisfied that this is a case that took markedly longer than it should have. There were several pieces of video disclosure. There is a separate and related counter-charge. The parties continue to litigate a third-party records issue due to a notebook in the possession of the complainant. The Applicant has not demonstrated that this is the type of case that should have proceeded in a markedly shorter time.

[57] The Applicant has failed to establish a breach of s.11(b) of the Charter and the Application is dismissed.

Released: December 17, 2025

Signed: Justice R. Wright