Court File and Parties

Court File No.: CR-24-30000567-0000
Date: 2025-04-14
Ontario Superior Court of Justice

Between:
His Majesty the King (Respondent)
and
Rutal Alott Hankey (Applicant)

Appearances:

• Meher Singh, for the Respondent
• R. Roots Gadhia, for the Applicant

Heard: March 20, 2025

Reasons for Judgment on Application Pursuant to Sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Vermette J.

Introduction

[1] The Applicant, Rutal Alott Hankey, is charged with thirteen offences alleged to have been committed between March 3 and May 31, 2022:

• six counts of breaking and entering a dwelling house and committing therein the indictable offence of theft (subsection 348(1)(b) of the Criminal Code);
• three counts of breaking and entering a dwelling house with the intent to commit an indictable offence therein (subsection 348(1)(a) of the Criminal Code);
• two counts of mischief/damage to property not exceeding $5,000 (subsection 430(4) of the Criminal Code);
• one count of assault (section 266 of the Criminal Code); and
• one count of possession of break-in instrument (subsection 351(1) of the Criminal Code).

[2] The Applicant has brought an application for an order that: (a) his rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated, and (b) the matter be stayed pursuant to section 24(1) of the Charter.

A. Factual Background

[3] Mr. Hankey was charged on June 1, 2022, along with two co-accused, Vanessa Smith and Jeptha Hankey, who have since resolved their charges. Mr. Hankey will be tried in the Superior Court of Justice (“SCJ”) by a judge and jury. His trial is anticipated to conclude on January 16, 2026. At the anticipated conclusion of the Applicant’s trial, this matter will have taken 1,325 days or 43.5 months, i.e., 13.5 months above the applicable 30-month presumptive ceiling.

[4] It is unnecessary to set out the procedural history of this case in detail. The relevant facts are summarized below in the context of the discussion of the instances of defence delay and exceptional circumstances that are alleged.

B. Positions of the Parties

1. Position of the Applicant

[5] The Applicant’s position is that the defence delay in this matter is five months and, therefore, the net delay is 8.5 months above the presumptive ceiling. The Applicant submits that there are no discrete events or exceptional circumstances that justify the delay in this case. Accordingly, there is a breach of his right under section 11(b) of the Charter to be tried within a reasonable time, and the charges against him must be stayed. In the alternative, if the court finds that the net delay falls below the presumptive ceiling, the Applicant argues that the delay is unreasonable and that it has taken markedly longer than reasonably expected for this matter to get to trial.

[6] With respect to the delay in scheduling dates for the pre-trial motions and trial, the Applicant submits that some of the dates that were proposed were unrealistic for defence counsel as they did not provide sufficient time for the preparation of pre-trial motions and a jury trial, and defence counsel was also unavailable during that time. The Applicant also submits that the Crown’s suggestion that defence counsel book and hold available dates in the fall of 2025 and vacate those dates and book summer dates once the summer schedule became available was completely unreasonable. According to the Applicant, the expectation that defence counsel would hold dates that might ultimately be vacated while also keep her entire summer open for the mere possibility of booking dates at some point was both impractical and unfair. The Applicant argues that the onus of shouldering the uncertainty associated with the lack of a finalized court calendar should not fall on defence counsel.

[7] The Applicant states that the only period of delay attributable to the defence is the five-month period between February 14 and July 14, 2025, when the Crown and the court were available and defence counsel was not. The Applicant argues that the court, not the defence, should bear the responsibility for the delay associated with the court’s inability to offer summer dates earlier. The Applicant submits that there was no other defence delay in this case and points out that: (a) defence counsel was retained and requested disclosure in a timely manner; (b) there were no fruitless court appearances; (c) defence counsel took initiative at several points to follow up with the Crown when e-mails went unanswered; and (d) defence counsel took all conceivable steps to keep the matter moving forward in a timely manner.

[8] If the delay falls below the presumptive ceiling, the Applicant argues that this case is one of those clearest cases where the delay is still unreasonable and a stay ought to be imposed. The Applicant states that the disclosure of critical video surveillance was delayed by nine months, that he repeatedly asked for this disclosure, and that there is no justification for such an unreasonable delay. According to the Applicant, “this delay created a ripple effect, pushing back all subsequent steps in the proceedings and causing a cascade of unnecessary delays.” The Applicant notes that a judicial pre-trial was held before the requested disclosure was provided. He submits that using judicial pre-trials to deal with disclosure issues is not an appropriate use of the process, and results in judicial pre-trials that are not meaningful.

[9] The Applicant points out that the preliminary hearing was delayed by 73 days due to the unavailability of the other parties (including the co-accused’s counsel). He argues that this should have been a clear signal to Crown Counsel to re-evaluate the case and consider severing or resolving the matters with the two co-accused. The Applicant submits that the Crown should have had resolution discussions with the other co-accused earlier in the case, before the preliminary hearing.

[10] The Applicant also complains about not receiving a response from the 10 Armoury JPT Inbox for a month and about Crown counsel falling ill the day before the preliminary hearing was set to begin. With respect to the latter, while the Applicant acknowledges that the Crown’s unavailability may have been unpredictable and beyond their control, he argues that the resulting delays have significantly prejudiced him.

[11] The Applicant submits that defence counsel took every possible step to assist in quickly bringing this matter to trial in a timely manner.

2. Position of the Respondent

[12] The Crown’s position is that the defence delay in this matter is at least 459 days (15 months) and, as a result, the net delay is 28.5 months, below the 30-month presumptive ceiling. In the alternative, if the Court finds that the net delay exceeds the presumptive 30-month ceiling, the Crown submits that the Applicant has failed to establish that the delay is unreasonable due to discrete exceptional circumstances which account for 158 days (5 months). The discrete exceptional circumstances relied upon by the Crown stem from Crown counsel becoming ill on the eve of the preliminary hearing, requiring an adjournment to secure additional dates to complete the hearing. The Crown argues that the Applicant has not met his onus to establish that even though the total delay falls below the ceiling, the case is nevertheless a clear one of unreasonable delay.

[13] The Crown submits that defence delay includes the following:

• March 28 to May 24, 2023: As of March 28, 2023, the Crown was ready to set either trial or preliminary hearing dates, but counsel for the Applicant required some time to sort out a conflict issue because they were representing both the Applicant and the co-accused Vanessa Smith. Another lawyer was eventually retained for Ms. Smith.
• August 6 to September 10, 2024: After the Applicant was committed to stand trial on all counts, the Crown and the court were ready to schedule the Applicant’s appearance at the SCJ on August 6, 2024, but defence counsel was not available until September because she was out of the country.
• February 14, 2025 to January 16, 2026: The Crown notes that the defence concedes that the delay between February 14 and July 14, 2025 was defence delay. However, the Crown’s position is that the delay in scheduling the trial until January 16, 2026 is entirely attributable to the defence. The Crown and the court were available to complete the trial on February 14, 2025, but counsel for the Applicant was not available until July 14, 2025. On February 27, 2025, after the court’s summer dates were released, counsel for the Applicant advised that they no longer had summer availability. The Crown argues that the delay between July 14, 2025 and January 16, 2026 should not be apportioned because it was solely or directly caused by the defence. The Crown points out that multiple pre-trial motion and trial dates were offered over eleven months, including between July 2025 and January 2026. According to the Crown, looking contextually at the matter and the dates that were offered, attributing the delay to the defence would not have the effect of requiring the defence to hold itself in a state of perpetual availability, but, rather, would only require a reasonable degree of availability on the part of the defence.

[14] If the Court finds that the net delay exceeds the 30-month presumptive ceiling, the Crown submits that a further 158 days (5 months) should be subtracted due to discrete circumstances, namely, the delay stemming from the adjournment of the preliminary hearing from January 27 to July 3, 2024, due to Crown illness. The Crown states that courts have held that counsel illness, resulting in an adjournment of proceedings, constitutes a discrete circumstance, as the delay is beyond the Crown’s control. The Crown argues that in response to the unforeseen and unavoidable delay, the Crown’s office took all possible measures to mitigate the impact. Another Crown was assigned, allowing the preliminary hearing to resume just three days later, and the accused persons were severed to accommodate the earliest preliminary hearing continuation dates for the Applicant. According to the Crown, no other reasonable actions could have been taken to address the delay beyond those already implemented.

[15] The Crown submits that the Applicant has not met his onus to establish that the case took markedly longer than it reasonably should have. While the Crown acknowledges that defence counsel generally took meaningful steps to expedite the proceedings, the Crown points out that defence counsel was unavailable for the multiple dates offered by both the court and Crown between November 2024 and December 2026. The Crown also states that the Crown actively undertook reasonable steps to expedite the proceedings and prevent any further delay.

[16] With respect to the Applicant’s submissions regarding an earlier resolution with the two co-accused, the Crown points out that the discussions with the co-accused’s counsel are subject to litigation privilege. The Crown also states that there is no basis for the defence’s argument that the Crown did not have a reasonable prospect of conviction. Crown counsel notes that the Crown is constantly looking at its cases and assessing how best to utilize available resources. The Crown also states that should severance had occurred earlier, it would not have mattered because the Applicant’s counsel was not available before July 2024 to continue the preliminary hearing.

[17] With respect to the issue of disclosure, the Crown acknowledges that it took some time for some of the surveillance videos to reach defence counsel, but points out that it was the Crown’s position on March 28, 2023 that disclosure was complete. The Crown argues that disclosure issues were not the cause of any delay in setting dates for the preliminary hearing because between March 28, 2023 and July 11, 2023 – i.e., when the accused made their elections and it was agreed to set dates for a preliminary hearing – no additional substantive disclosure was provided.

C. Discussion

1. Applicable Legal Principles

[18] In R. v. Jordan, 2016 SCC 27 (“Jordan”), the Supreme Court of Canada set out a new framework for applications under section 11(b) of the Charter. This framework establishes ceilings beyond which delay is presumptively unreasonable. The presumptive ceiling for cases going to trial in the provincial court was set at 18 months, and the presumptive ceiling for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) was set at 30 months. Defence delay does not count towards the presumptive ceiling. See Jordan at paras. 46, 105. The presumptive ceiling applicable in this case is the 30-month ceiling.

[19] If the total delay from the charge to the actual or anticipated end of trial minus defence delay – i.e., the net delay – exceeds the ceiling, then the delay is presumptively unreasonable. In order to rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot do so, the delay is unreasonable and a stay follows. See Jordan at para. 47.

[20] If the total delay from the charge to the actual or anticipated end of trial minus defence delay and/or a period of delay attributable to exceptional circumstances falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (a) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (b) the case took markedly longer than it reasonably should have. Stays beneath the presumptive ceiling are expected to be rare and limited to clear cases. See Jordan at paras. 48, 92-83.

[21] In applying this framework, the first step is to calculate the total delay from the charge to the actual or anticipated end of trial. Once that is ascertained, delay attributable to the defence must be subtracted to determine the net delay. Defence delay has two components: (a) delay waived by the defence; and (b) delay caused solely or directly by the conduct of the defence. See Jordan at paras. 60-61, 63, 66.

[22] With respect to the first component, waiver can be explicit or implicit, but it must always be clear and unequivocal. The accused must have full knowledge of their rights, as well as the effect waiver will have on those rights. See Jordan at para. 61. The parties do not argue that there was any waiver in this case.

[23] The second component of defence delay comprises situations where: (a) the accused’s acts directly caused the delay; or (b) the delay flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges, such as deliberate and calculated defence tactics aimed at causing delay. See Jordan at paras. 63-64 and R. v. Cody, 2017 SCC 31 at para. 30 (“Cody”).

[24] With respect to the first situation, the Supreme Court stated the following in Jordan (at para. 64):

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.

See also R. v. Thanabalasingham, 2020 SCC 18 at para. 9 and R. v. Boulanger, 2022 SCC 2 at para. 8 (“Boulanger”).

[25] 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. Further, defence applications and requests that are not frivolous will also generally not count against the defence. See Jordan at para. 65.

[26] “Illegitimacy” in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Rather, legitimacy takes its meaning from the culture change demanded in Jordan: all justice system participants, including defence counsel, must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by section 11(b) of the Charter. See Cody at para. 35.

[27] When considering whether there was defence delay, both the decision to take a step and the manner in which it is conducted may attract scrutiny. Defence conduct encompasses both substance and procedure. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a section 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. See Cody at para. 32.

[28] Inaction may also amount to defence conduct that is not legitimate. Thus, illegitimacy may extend to both omissions and acts. Accused persons must bear in mind that a corollary of the right to be tried within a reasonable time is the responsibility to avoid causing unreasonable delay. Therefore, defence counsel are expected to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently. See Cody at para. 33. Among other things, defence counsel must exercise due diligence in actively seeking and pursuing Crown disclosure. See R. v. Zahor, 2022 ONCA 449 at paras. 98-100 (“Zahor”).

[29] In some cases, the circumstances may justify apportioning responsibility for delay between the Crown and the defence rather than attributing the entire delay to the defence. In all cases, a contextual approach is needed to determine the extent to which the defence conduct is the “sole or direct” cause of delay, and all relevant circumstances should be considered to determine how delay should be apportioned among the participants. See Boulanger at para. 8, Zahor at para. 102 and R. v. Hanan, 2023 SCC 12 at para. 9 (“Hanan”).

[30] In cases of jointly-charged accused, an individualized approach must be taken to the attribution of defence-caused delay. Delay caused by the actions or inactions of a co-accused cannot be attributed to all. See R. v. Gopie, 2017 ONCA 728 at paras. 128, 136 (“Gopie”). However, this individualized approach does not apply when the co-accused proceed as a collective. See R. v. Albinowski, 2018 ONCA 1084 at paras. 36-39 (“Albinowski”).

[31] In calculating delay, the court should adopt “a bird’s-eye view of the case”. See Jordan at para. 91 and Zahor at para. 92.

[32] After the net delay has been determined, the next step is to consider whether the presence of exceptional circumstances has been established. Exceptional circumstances are circumstances that lie outside the Crown’s control in the sense that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Circumstances that meet this definition, are considered exceptional and need not meet a further hurdle of being rare or entirely uncommon. See Jordan at para. 69. The Crown must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. However, the Crown is not required to show that the steps that it took were ultimately successful. See Jordan at para. 70.

[33] Exceptional circumstances generally fall into two categories: (1) discrete events; and (2) particularly complex cases. In this case, the Crown alleges the presence of a discrete event. The Supreme Court of Canada stated in Jordan (at para. 72) that medical or family emergencies – whether on the part of the accused, important witnesses, counsel or the trial judge – are generally expected to qualify as a discrete, exceptional event.

2. Application to This Case

[34] As stated above, the total delay in this case from the charge to the anticipated end of trial is 43.5 months.

[35] I now turn to the alleged instances of defence delay.

a. Delay Related to the Co-Accused Vanessa Smith Retaining New Counsel (March 28 to May 24, 2023)

[36] At the beginning of this matter, the Applicant and Ms. Smith were represented by the same defence lawyer. On March 28, 2023, during a judicial pre-trial with Justice Bliss, the issue of a potential conflict of interest was discussed. Ms. Smith subsequently retained a new lawyer, and the Applicant kept his lawyer.

[37] In my view, the delay caused by Ms. Smith’s change of counsel cannot be attributed to the Applicant. See Gopie at para. 128 and R. v. Tran, 2023 ONCA 532 at para. 39. While the Applicant and Ms. Smith shared the same lawyer for some time, they were two different co-accused and there were significant differences between them, including the number of charges they respectively faced. The fact that Ms. Smith needed to retain her own lawyer and how the case ultimately proceeded as against Ms. Smith and the Applicant show that this is not a case where the co-accused proceeded as a collective, contrary to the situation in Albinowski.

[38] Accordingly, I do not accept the Crown’s submission that this delay was directly or solely caused by the conduct of the Applicant’s defence.

b. Delay Between August 6 and September 10, 2024

[39] On July 24, 2024, the Applicant was committed to trial on all counts. After the preliminary inquiry judge delivered her reasons for the committal, the following exchange took place:

THE COURT: Do you have instructions, Ms. Park, as to when this matter should go to the Superior Court of Justice.

S. PARK [Crown counsel]: Yes, Your Honour. I would suggest this matter be adjourned to Tuesday, so close to two weeks from today. That will be August 6 in courtroom 7-1 in SCJ Practice Court.

K. SHARMA [defence counsel]: Your Honour, Ms. Gadhia is not in the country until at least September, so she has asked the matter to return on September the 3rd in Superior Court.

S. PARK: Your Honour, this matter is getting quite dated so we are concerned of the delay. If there is an 11(b) waiver until that date, I will be content.

THE COURT: I think it’s clear it’s a defence request for an adjournment, and I think Mr. Hankey would like his lawyer with him to move the matter forward. I know Mr. Sharma is doing a favour today in attending and I want to respect Ms. Gadhia’s request. […]

THE COURT: I’m happy to adjourn it. So when would be the next date after September 3rd that we can have this matter go to the Superior Court of Justice.

S. PARK: That would be September 10th. Thank you.

K. SHARMA: Yes.

THE COURT: Okay. September 10th then to the Superior Court of Justice.

K. SHARMA: Thank you very much, and, Your Honour it was nice seeing you again. Thank you, Ms. Park, and I’ll be sure to advise Ms. Gadhia of the next date.

[40] In my view, the delay between August 6 and September 3, 2024 constitutes defence delay. The court and the Crown were both ready to proceed on August 6, 2024, but the defence was not. While the matter was ultimately adjourned to September 10, 2024, the defence had asked that the matter return on September 3, 2024, not September 10. It appears that the court misunderstood the defence’s request and availability and, instead of adjourning the matter to September 3, 2024, adjourned the matter to the first available Practice Court date after September 3, 2024, i.e., September 10, 2024.

[41] Had the matter been adjourned to August 6, 2024 instead of a date in September, a judicial pre-trial in the SCJ would have been held earlier, and the parties would have been in a position to set trial dates earlier.

[42] Therefore, I find that the delay between August 6 and September 3, 2024 – 27 days [1] – resulted from the unavailability of the defence and should be attributed to the defence. See Jordan at para. 64.

c. Delay Related to the Scheduling of the Pre-Trial Motions and Trial (February 14, 2025 to January 16, 2026)

[43] As stated above, the defence concedes that the delay between February 14 and July 14, 2025 is attributable to the defence. This concession was in the Applicant’s Factum and, after some confusion, was “confirmed” (or not withdrawn) at the hearing. In my view, this concession was appropriate and, if it had not been made, I would have found that this five-month delay constituted defence delay. The availability of the court and the Crown: (a) during the week of November 25 or the week of December 2, 2024 for the pre-trial motions, and (b) during the weeks of February 3 and 10, 2025 for the trial (with the trial ending on February 14, 2025), is established based on the evidence before me. During all the discussions related to the scheduling of the trial, defence counsel repeatedly stated that she did not have availability for the trial until July 14, 2025.

[44] The real issue in this case is how to characterize the delay that followed, i.e., from July 14, 2025 to the anticipated conclusion of the Applicant’s trial on January 16, 2026. The relevant facts are set out briefly below.

i. Relevant Facts

[45] A judicial pre-trial was held in the SCJ on September 23, 2024. It was determined at that time that three weeks were required for the hearing of this matter – three days for pre-trial motions followed by a two-week trial.

[46] On September 27, 2024, Crown counsel wrote to both defence counsel and the trial coordinator’s office with respect to the scheduling of the trial. A number of e-mails were exchanged regarding this issue on September 27 and October 1, 2024. While both the Crown and the defence were available between July 14 and August 22, 2025, the summer calendar for 2025 had not yet been released by the Office of the Chief Justice and, consequently, the trial could not be scheduled during that period.

[47] Both the defence and the Crown were also available between November 10 and December 12, 2025, but the trial coordinator’s office informed counsel that “[t]he court is not currently available on the suggested date of November 10-28, 2025.” In a subsequent e-mail, the trial coordinator’s office also stated that “[t]he court is not currently available on the suggested date of November 24 - December 12, 2025.” The parties were advised that the court was available between January 5-23, 2026.

[48] The e-mails that were exchanged show that, subsequent to the summer of 2025, the Crown was generally available after September 8, 2025, but the defence did not have three full weeks available until November 2025. The Crown, the defence and the court also had availability between October 6 and 22, 2025, but the trial was not scheduled during that period because it did not include three full weeks. Despite being asked whether she was available on October 23 and 24, 2025, defence counsel did not respond to the question and, instead, advised that she would prefer the summer dates.

[49] On October 1, 2024, counsel agreed to have the pre-trial motions heard in advance of the trial in the hope of being able to obtain earlier dates for a two-week trial instead of a three-week trial. This was approved by the Court.

[50] Another exchange of e-mails took place on October 2-3, 2024. Defence counsel indicated that she was available during the following periods: October 13-22 (which was insufficient to conduct the trial), November 10 - December 19, 2025, and January 5 - February 20, 2026. Crown counsel wrote that it was her understanding, subject to the trial coordinator’s agreement, that the court and the Crown had availability, among other things, during the following weeks: September 29, October 6, October 13, October 20, October 27, December 8 and December 15, 2025. However, this availability was not confirmed by the court and the subsequent e-mails suggest that the court did not have availability for a two-week trial in December 2025. [2] Based on the availability of defence counsel, the pre-trial motions were scheduled during the week of October 13, 2025, and the two-week trial was scheduled to start on January 5, 2026. In the same exchange of e-mails, Crown counsel stated that they would “be offering summer trial dates when they become available in 2025, subject to Ms. Gadhia’s availability at that time.” Defence counsel took the position that, given her schedule and the demands of other matters, she could not reserve both summer trial time and the set trial time until the summer schedule became available.

[51] At an appearance on February 27, 2025, defence counsel spoke first and confusingly inquired about available summer dates and the availability of the Crown on those dates. However, she later advised that she no longer had any availability during the summer. While the Crown proposed to conduct the trial between July 7 and 18, 2025, and to proceed with the pre-trial motions during the week of June 30, 2025, that was not possible in light of defence counsel’s unavailability.

ii. Analysis

[52] In Hanan, the Supreme Court of Canada rejected the “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court had to be characterized as defence delay. The Supreme Court reiterated that all relevant circumstances should be considered to determine how delay should be apportioned among the participants. See Hanan at para. 9.

[53] In light of the facts set out above, it would be unfair and unreasonable to characterize the entire period of delay between February 14, 2025 and January 16, 2026 as defence delay. The defence (and the Crown) had availability during that period, but the court could not accommodate the parties.

[54] At the time the parties were in communications with the court to set a trial date, the court was unable to accommodate them in the summer of 2025, and thereafter (and based on the available evidence) until October 6, 2025. While the Crown and the court were available for a three-week trial starting on October 6, 2025, the defence was not. [3] The defence and the Crown then had availability in November and December 2025, but the court could not accommodate them.

[55] In my view, the delay between July 14 and October 6, 2025, and the delay between November 10, 2025 and January 5, 2026 were the product of systemic limitations in the court system and do not constitute defence delay. See Cody at para. 55. However, the delay between October 6 and November 10, 2025 was the result of the unavailability of defence counsel.

[56] I do not accept the argument that defence counsel should have kept her available summer dates and not schedule anything on those dates from the end of September 2024 until the end of February 2025, in the hope that dates would become available for the trial in this matter. First, there is case law that states that the framework of analysis in Jordan “was never intended to apply to a situation in which dates are offered to move forward a trial which has previously been scheduled”: see R. v. A.(C.), 2024 ONSC 1603 at para. 18. Second, and more importantly, the dates that were ultimately offered in February 2025 – i.e., July 7-18, 2025, with pre-trial motions heard during the week of June 30, 2025 – were not the summer dates that had been previously discussed, i.e., July 14 - August 22, 2025. If the dates that were offered at the end of February 2025 had been offered in the fall of 2024, defence counsel would still have been unavailable and the analysis would remain the same. As stated above, defence counsel has already conceded that the delay between February 14 and July 14, 2025 is attributable to the defence. There is no evidence before me that additional trial dates in the summer or fall of 2025 were offered to the defence.

[57] Thus, I conclude that the delay between February 14 and July 14, 2025 – 5 months – and the delay between October 6 and November 10, 2025 – 1 month and 3 days – are attributable to the defence.

d. Net Delay

[58] In light of the foregoing, the total defence delay is approximately 7 months (27 days + 5 months + 1 month and 3 days). This results in a net delay of 36.5 months (43.5 months – 7 months), i.e., 6.5 months above the applicable presumptive ceiling.

e. Exceptional Circumstances

[59] As stated above, the Crown argues that the delay stemming from Crown counsel becoming ill on the eve of the preliminary hearing, requiring an adjournment to secure additional dates to complete the hearing from January 27 to July 3, 2024, was the result of an exceptional circumstance and should be subtracted.

i. Relevant Facts

[60] The preliminary hearing was scheduled to proceed from January 22-26, 2024. On Sunday, January 21, 2024, at 2:55 p.m., a lawyer in the Crown’s office sent an e-mail to defence counsel to inform them that the Crown assigned to this matter was ill. The following day, the matter was adjourned until Wednesday, January 24, 2024, in the hope that the assigned Crown would be in a position to proceed at that time.

[61] On Tuesday, January 23, 2024, defence counsel were informed that the assigned Crown was not well enough to begin the preliminary hearing the following day, but that a new Crown was available to step in and call evidence starting Thursday, January 25, 2024. This is what ultimately happened. However, given that the preliminary hearing started on Thursday instead of Monday, it was not completed within the allocated time. While the Crown and counsel for the Applicant’s two co-accused had availability in March and April 2024 for a three-day continuation, the Applicant’s counsel did not have any available dates before July 2024. Ultimately, the Applicant and his co-accused were severed, and the Applicant’s preliminary hearing continued on July 3-5, 2024.

ii. Analysis

[62] As stated by the Supreme Court of Canada in Jordan, medical emergencies on the part of counsel are generally expected to qualify as a discrete, exceptional event. This is the case in this matter where the impossibility to complete the preliminary hearing during the week of January 22, 2024 and the need for a three-day continuation were the result of the illness of Crown counsel. Crown counsel’s illness was reasonably unforeseen and reasonably unavoidable. Further, I am satisfied that the Crown took reasonable available steps to avoid and address the problem at the time that it arose. When it became clear that the assigned Crown would not be able to proceed during the relevant week, another Crown was assigned and, with very little time to prepare and familiarize himself with the matter, he was able to start the preliminary hearing and use two of the five days that had been booked.

[63] Where a discrete exceptional circumstance arises, it is incumbent on all participants to make best efforts to get the matter completed in as timely a way as possible. When the court and Crown are in a position to remedy the unforeseen circumstances in short order, but the defence cannot accommodate it through reprioritization or otherwise, this necessarily informs the reasonableness of the length of the adjournment arising from the unforeseen circumstances. See R. v. J.S., 2024 ONCA 794 at para. 81 (“J.S.”).

[64] In this case, the only reason why the preliminary hearing could not continue before July 2024 was the unavailability of the Applicant’s counsel. In these circumstances, the entire period between January 27 and July 3, 2024 – 5 months and 5 days – should be attributed to delay caused by a discrete exceptional circumstance: see J.S. at paras. 75-76, 82-83.

f. Conclusion

[65] While the Crown has established the presence of an exceptional circumstance, when the delay attributable to the exceptional circumstance is subtracted from the net delay, the remaining delay (36.5 months - 5 months and 5 days) still exceeds the 30-month ceiling by more than one month. Therefore, the delay in this case is unreasonable and a stay must follow.

D. Disposition

[66] The Application is granted. The Applicant’s right under section 11(b) of the Charter has been violated, and the matter is stayed pursuant to section 24(1) of the Charter.

Lynne C. Vermette
Released: April 14, 2025

Footnotes

[1] When calculating the delay between two dates, I did not include the first or last day of the period. See R. v. Shaikh, 2019 ONCA 895 at footnote 1.

[2] This is because the court suggested a trial in January 2026 instead of December 2025, when the Applicant’s counsel had availability.

[3] Further, by the time the parties had the court’s authorization to schedule a two-week trial instead of a three-week trial, the defence no longer had two full available weeks in October 2025.