Ontario Superior Court of Justice

Court File No.: CR – 24 -119
Date: 2025-03-26

Between

His Majesty the King
Respondent
(M. Gaspar / H. Ghelani for the Crown)

-and-

Christopher Vaughan
Applicant
(H. Dudding / M. Bédard for Mr. Vaughan)

Heard: March 4, 2025

Ruling on s. 11(b) Charter Application
Baltman J.

Introduction

[1] This case is another example of how a major disclosure failure by the Crown, in a region beset with chronic institutional delay, must be immediately redressed or face the consequences of a s. 11(b) application for unreasonable delay.

[2] The Applicant, Christopher Vaughan, seeks a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms due to an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

[3] The Applicant, along with his spouse and co-accused, Maria Lopez, face several counts of possession of narcotics, including large amounts of cocaine and opium, for the purpose of trafficking. The Applicant was arrested and charged on March 2, 2023. His trial before a jury is scheduled for 7-10 days commencing on July 28, 2025. The trial is anticipated to be completed 29 months and 8 days after the swearing of the information.

[4] However, even though the Applicant’s trial will be completed 25 days under the 30-month ceiling for Superior Court matters established in R. v. Jordan, 2016 SCC 27, the Applicant alleges a violation of his s. 11(b) rights.

[5] It is undisputed that the Applicant has acted reasonably and taken steps to expedite the proceedings. The sole issue is whether the delay in concluding the trial markedly exceeds the reasonable time requirements of the case. In particular, much of the dispute focuses on the delayed disclosure of the four Information to Obtains (“ITOs”).

[6] For the reasons set out below, the application is allowed.

The Allegations

[7] On March 1, 2023, the RCMP executed a search warrant at the Applicant’s residence, an apartment in Mississauga. Officers seized a large sum of currency (including $34,844 USD and $21,000 CAD), 400 oxycodone pills, digital scales, and other drug paraphernalia.

[8] When the Applicant was arrested, police located a set of keys on his person, one of which opened a storage locker in the same building that had been rented to the Applicant by a third party. Pursuant to a separate search warrant executed on March 2, 2023, police seized over 8 kilograms of cocaine, $14,000 CAD and documentation in the names of the Applicant and his spouse, Maria Lopez, who has also been charged in connection with this investigation. Mr. Kenneth Green was also charged in connection with this matter, but his charges have since been stayed by the Crown.

The Disclosure

[9] On March 2, 2023, an information was sworn concerning the Applicant alleging offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Applicant was released on consent the same day.

[10] The first appearance was on March 29, 2023. The Crown advised that the first wave of disclosure would be provided in two weeks. The matter was adjourned to April 28, 2023.

[11] On April 25, 2023, “Wave 1” of disclosure was sent via Purolator to all counsel. It included most of the officers’ notes, takedown evidence, surveillance reports and Transmission Data Recorder (“TDR”) evidence produced during the investigation. No ITOs were included in that wave of disclosure.

[12] At the June 9, 2023 appearance, the defence advised there was still essential disclosure outstanding, which included all of the four outstanding ITOs. The Crown responded that it was working on unsealing the search warrants, which could take an additional 4 weeks. The matter was adjourned to July 21.

[13] On July 19, 2023, as part of “Wave 2” of disclosure, one of the four ITOs was disclosed to defence.

[14] On July 21, 2023, the defence advised that it was “still awaiting the disclosure of the” ITOs, without which it “can’t take meaningful steps forward.” In fact, three out of the four ITOs had not yet been provided. The Crown responded that the ITOs had likely been disclosed in the latest wave of disclosure two days ago, on July 19, and that, even if it were not the case, they would be disclosed “very soon.”

[15] On August 18, 2023, the defence advised that it was still awaiting the disclosure of “some ITOs before we can meaningfully move the case forward.” The Crown responded that the ITOs had likely been disclosed in the latest wave provided on July 19. In fact, at that point there were still three outstanding ITOs.

[16] On September 15, 2023, defence advised that there were still “several” ITOs outstanding, noting:

This is a search and seizure case and without these ITOs, in particular the first ITO that remains outstanding, Counsel can’t proceed to advise Mr. Vaughan on election or any potential plea...And Counsel feels he can’t proceed without those to a judicial pre-trial at this time.

[17] The Crown responded as follows:

I can confirm what my friend’s saying. It looks like some ITOs, not all ITOs were disclosed back in July. However, I do see that our office has a third wave of disclosure in our possession, which has all of the outstanding warrants, or ITOs I should say. And it looks like our aim is to provide that early next week.

[18] The matter was adjourned to October 13, 2023. On that day, the Crown advised that it had finally, that very morning, provided the three remaining ITOs to the defence, as part of Wave 3 of disclosure. This was over seven months after the charges were laid.

[19] On November 15, 2023, a judicial pre-trial (“JPT”) was held for the Applicant and Ms. Lopez. At that time, both parties advised that they would elect to proceed with a trial in the Ontario Court of Justice.

[20] In the two-month period between mid-October and mid-December, defence counsel reviewed the latest wave of disclosure (totalling approx. 500 pages), discussed availabilities with counsel for the co-accused and the Crown, scheduled a conference to set trial dates, and obtained at that conference the earliest trial dates possible. The trial was then scheduled for February 3 to 7, 2025 in the Ontario Court — the earliest dates available — which would be over 23 months after the Information had been sworn, and five months over the presumptive ceiling.

[21] On January 5, 2024, the Crown asked to have the case moved to Jordan compliance court to obtain earlier trial dates. The Applicant agreed, confirming on the record his interest in “proceeding to trial as expeditiously as possible.” The Court advised that the earliest Jordan compliance court dates was January 25, 2024.

[22] On January 25, 2024, the Crown again attempted to secure earlier trial dates, advising that the matter would be given priority and could be stacked on top of an otherwise full list. Another scheduling conference was planned for January 31, 2024. The Applicant reiterated that he would be “willing to accept the earliest dates possible, and that someone from [defence counsel’s] office will make themselves available.”

[23] When the parties attended the scheduling conference on January 31, 2024, the earliest dates offered by the Trial Coordinator were later than the already scheduled dates of February 3-7, 2025. As a result, the trial dates were maintained, and only pre-trial motion dates were scheduled.

Direct Indictment

[24] On March 11, 2024, the Crown filed a direct indictment against the Applicant and Ms. Lopez. The trial dates in the Ontario Court were vacated on April 5, 2024, at which time Applicant counsel commented that the Crown’s decision to move the matter “upstairs” was done against his client’s wishes. The Court ordered that all dates be vacated and that the Information be transferred to the Superior Court.

[25] On April 8, 2024, the parties first appeared in Superior Court for a JPT. The Court offered three possible sets of dates for pre-trial motions: in November 2024, December 2024, or January 2025. Both the Crown and the Applicant were available for any of these dates, but counsel for Ms. Lopez was not available until August 2025. The Court granted a one-week adjournment to allow counsel for the co-accused to see if earlier dates could be freed up, or if alternate counsel could be arranged.

[26] On April 15, 2024, a second JPT was conducted. Counsel for Ms. Lopez advised that they were still trying to rearrange their schedule to accommodate this matter prior to the new 30-month ceiling. The Court adjourned the matter three weeks for that purpose but set target dates for pre-trial motions the week of November 25, 2024, the Court’s first availability. The Applicant put on the record that he had been ready to set dates since the previous week.

[27] On May 3, 2024, counsel for Ms. Lopez advised that they could not accommodate the targeted November 2024 pre-trial motion dates; these dates were vacated. New motion dates were scheduled for April 2025, and trial dates were set for a 7-10 day jury trial commencing July 28, 2025. Applicant’s counsel made the following comment on record:

And obviously, just for the purpose of the 11(b) that’s coming, Mr. Vaughan and I were ready and able to do those November dates, and I think it was contemplated that there would be trial dates in January or February of 2025, which were agreeable to Mr. Vaughan.

[28] The Applicant’s trial is therefore currently scheduled to end in August of 2025 — 29 months and 8 days after the Information was sworn.

The Legal Framework

[29] In Jordan, the Supreme Court established presumptive time periods within which an accused person must be brought to trial. In the Ontario Court of Justice, the presumptive ceiling is 18 months; in the Superior Court of Justice, the ceiling is 30 months.

[30] If the total delay, less any delay waived or caused by the defence, exceeds the presumptive ceiling, the Crown has the onus of demonstrating that the delay was reasonable. If the delay falls below the presumptive ceiling, the applicant has the onus of showing that the delay was unreasonable: Jordan, at paras. 5, 46-49, and 60.

[31] In the subsequent decision of R. v. Cody, 2017 SCC 31, the Supreme Court summarized the analytical steps to be taken in the adjudication of s. 11(b) claims following Jordan. Those steps are:

1. Calculate the total delay from the charge to the anticipated end of trial;
2. Subtract delay waived by or attributable to the defence, which results in the “net delay”;
3. Compare the net delay to the presumptive ceiling;
4. If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is still unreasonable. The defence must establish: a. It took meaningful steps that demonstrated a sustained effort to expedite the proceedings; and b. The case has taken markedly longer than it reasonably should have.
5. If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The Crown must establish the presence of “exceptional circumstances” to avoid a stay of proceedings. Exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Analysis

1. Calculate total delay from charge to anticipated end of trial

[32] The parties agree that the total delay from being charged to anticipated end of trial is 29 months and 8 days.

2. Subtract delay waived by or attributable to the defence

[33] Both parties agree there is none.

3. Compare the net delay to the presumptive ceiling

[34] Here, the net delay falls 25 days under the 30-month ceiling for Superior Court matters.

4. If the net delay falls at or below the ceiling, the onus is on the defence to show that the delay is unreasonable

The defence must establish: a) It took meaningful steps that demonstrated a sustained effort to expedite the proceedings; and
b) The case has taken markedly longer than it reasonably should have.

[35] The Crown concedes that the defence regularly made good faith efforts to advance the case.

[36] The sole issue, then, is whether the Applicant has demonstrated that the case has taken “markedly” longer than it should have. For the following reasons, I find the Applicant has met that burden.

1. The Crown Delayed in Providing Disclosure

[37] First, as noted above, the Crown took 7 months and 13 days to provide the Applicant with basic disclosure — including, most importantly, the various ITOs. While acknowledging that the delay in providing ITOs was “regrettable”, the Crown has not provided any reasonable explanation for this lengthy delay. The ITOs required unsealing orders to be sought and granted before the Crown could obtain them, and then had to be vetted in accordance with Crown policy to protect any information provided by confidential informants. But there has been no explanation of how those factors justified a delay of nearly 7.5 months.

2. The Unavailability of Trial Dates in the OCJ

[38] Second, a significant issue then arose regarding the first available set of trial dates. For a one-week trial in the Ontario Court, the first available set of dates was 14 months away, irrespective of the few days of pre-trial motions.

[39] Unfortunately, this lengthy delay is quite common in Brampton. The jurisdiction has been plagued with institutional delays since at least 1986, when the pivotal trial decision in Askov was released. This decision was upheld by the Supreme Court of Canada, where Justice Cory described Peel as “the worst district not only in Canada but, so far as the studies indicate, anywhere north of the Rio Grande”: R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1239. This court has very recently, in 2024, found that Cory J.’s comments sadly “still apply with similar force”: R. v. A.(C.), 2024 ONSC 1603, 553 C.R.R. (2d) 78, at para. 74. This court supported this statement with a long list of Brampton cases with institutional delays, which continued despite vigorous efforts by the former Regional Senior Justice in 2018 to draw necessary attention to this crisis: A.(C.), at paras. 73-75. In my twenty years presiding in Brampton, little has changed. Both the Ontario and Superior courts continue to frantically juggle insufficient courtrooms, judges, and support staff in order to manage the very heavy workload.

3. The Delay Resulting from the Preference of an Indictment

[40] Third, the Crown’s decision to prefer the indictment, far from helping the matter, actually led to an additional 6 months of delay, bringing the total delay to over 29 months. Following the preferring of an indictment in March of 2024, a JPT was held in the Superior Court on April 8, 2024, to reschedule the pre-trial motions and the trial itself.

[41] Unfortunately, even the earliest dates offered in the Superior Court did not expedite the proceedings, but rather caused further delays. The earliest motion dates available were at the end of November 2024, with the earliest possible trial scheduled to begin in January or February 2025. In these circumstances, the new 30-month ceiling created by the Crown’s procedural maneuver does not make this even longer delay any less unreasonable. As this Court found in R. v. Nyznik, 2017 ONSC 69:

[Allowing the Crown to prefer a direct indictment] does not mean that an accused person is devoid of any remedy, if it appears that the direct indictment was obtained simply to extend the time in which the prosecution can bring an accused person to trial. A ceiling is simply a ceiling. It does not purport to be a mandate for the time that is to be taken to bring a person to trial.

[42] A similar approach was recently taken by the British Columbia Superior Court in R. v. D.J.H., 2021 BCSC 1340, 492 C.R.R. (2d) 96, at para. 62:

[T]here is no danger of the Crown undermining the Jordan regime by reflexively resorting to direct indictments to escape the provincial court ceiling, because the reasonableness of the time to trial still does not escape Jordan scrutiny in appropriate situations.

[43] Drilled down, this means that while the Crown can prefer an indictment in the hope of evading the provincial court ceiling, if the delay was already unreasonable that move will not necessarily insulate the case from further scrutiny.

[44] There will be some cases where preferring an indictment will reflect the complexity of a case, meaning the delay is not inherently unreasonable; in other cases, preferring an indictment will help bring the accused to trial more quickly, effectively curing the unreasonableness of the delay.

[45] Neither is the case here. Here, not only was the initial delay unreasonable, the decision to prefer the indictment ended up prolonging the trial significantly. The earliest motion dates available were at the end of November 2024, with the earliest possible trial scheduled to begin in January or February 2025. Moreover, counsel for the co-accused was unavailable for the early pre-trial motion dates offered, which resulted in the trial being rescheduled to end in August of 2025. The Crown did not at any point on the record consider severance of the co-accused.

[46] The total delay in bringing the Applicant to trial — while already unreasonably long — thereby increased by an additional 6 months from its previously expected completion in the Ontario Court in February 2025. The Applicant was not responsible for any of that.

[47] In R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, our Court of Appeal stated that the Crown is responsible for the effects of its decisions on an accused s. 11(b) rights: paras. 367-376. Here, the ultimate effect of the Crown’s decision to prefer an indictment was to increase — and not decrease — the total delay in bringing the Applicant to trial.

4. The Total of Over 29 Months is Markedly Longer than it Should Have Been

[48] Fourth and finally, the total delay of over 29 months is significantly longer than it should have been. I recognize that the majority in Jordan stated that stays should be imposed for cases under the ceiling only in rare and clear cases, where the case took “markedly” longer than it reasonably should have: at paras. 48, 76, 83 and 105. However, as my colleague observed at paras. 112-113 of A.(C.), the Supreme Court clarified the meaning of the clear cases standard in R. v. K.J.M., 2019 SCC 55, 381 C.C.C. (3d) 293, at para. 78:

The restriction to “clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolve on the merits.

[49] I do not see this case as one of the “borderline” cases referenced in K.J.M. Nor did the Crown, apparently, as it did not originally raise any potential delay concerns, and only moved to prefer an indictment when it became apparent that the delays in providing disclosure, coupled with Brampton’s chronic shortage of judges and courtrooms, would take this case well above the 18-month ceiling.

[50] This case is also unlike R. v. S.A., 2024 ONCA 737, 99 C.R. (7th) 164, where, despite judicial vacancies in Toronto, Fairburn A.C.J.O. noted that “almost every factor” pointed away from a stay of proceedings: para. 44. Here several factors point toward a stay:

i. It is undisputed that the Applicant has acted reasonably throughout and taken steps to expedite the proceedings;
ii. The Crown has no compelling explanation for why it took over seven months to produce the ITOs, which was essential disclosure in this case;
iii. While the Crown can prefer an indictment to avoid the 18-month presumptive ceiling, in this case it actually led to an additional 6 months of delay; and
iv. The 29-months-and-8-days delay in this case is extremely close to the Jordan ceiling.

[51] While the Crown was entitled to prefer an indictment, in this case it backfired, through no fault of the Applicant, and the new total delay for completion of the Applicant’s trial is over 29 months. I agree with the Applicant that for this court to conclude that preferring a mid-proceeding indictment will transform an already unreasonable delay into a reasonable one would turn the Superior Court into a “dumping ground” for cases that should have resolved within 18 months in the Ontario Court, but took longer because of the Crown’s complacency and/or persistent institutional delays in the Ontario Court. The preference of an indictment cannot become a magic wand by which an unreasonable delay is transformed into a reasonable one.

Conclusion

[52] The application is allowed. The Applicant’s s. 11(b) right has been violated. The indictment is stayed under s. 24(1) of the Charter.

Baltman J.
Released: March 26, 2025