CITATION: R. v. R.W., 2025 ONSC 2297
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
R.W.
Defendant/Applicant
Ernesto Caceres, for the Crown
Nikolas Lust, for the Defendant/Applicant
HEARD: April 8, 2025
RULING ON SECTION 11(B) APPLICATION
MCVEY J.
1R.W. stands charged with assault, criminal harassment, sexual assault and three counts of breaching a release order. The charges were originally laid across numerous Informations sworn at various times in the Ontario Court of Justice. The oldest charge is dated August 22, 2022. A judge and jury trial is scheduled to commence on June 23, 2025. The last scheduled day for trial is July 4, 2025. The total delay is therefore 1047 days.
2R.W. seeks a stay of proceedings on the basis that his right to be tried within a reasonable time has been violated, contrary to section 11(b) of the Charter.
3For reasons given below, the application is dismissed.
Procedural History
4R.W. was first charged on August 22, 2022, with assault, criminal harassment, and mischief. R.W. secured counsel for his first appearance on September 2, 2022. On October 5, 2022, R.W. was charged with breaching his undertaking on August 29 and September 5, 2022. The Crown elected to proceed summarily on both sets of Informations.
5Pretrial discussions took place between the Crown and R.W.’s counsel of record at the time. By early February 2023, the police had laid sexual assault charges against R.W. stemming from the same interactions that gave rise to the August and September breach charges. Pretrial discussions continued.
6On March 3, 2023, counsel for R.W. explicitly waived section 11(b) for the purposes of undertaking further resolution discussions with the Crown. On the same date, the Crown elected to proceed summarily on the sexual assault charges. Counsel for R.W. continued to waive section 11(b) until June 9, 2023.
7In the interim, on May 26, 2023, R.W. was charged with further breaches on yet another Information. He was released on May 29, 2023, after a contested bail hearing. All matters were adjourned to June 16, 2023. During his bail hearing, the Crown became aware that new counsel may be coming on board. On May 31, 2023, the Crown proactively reached out to that lawyer to confirm. The Crown agreed to a same-day counsel pretrial to bring the new lawyer up to speed and immediately arranged for both a judicial pretrial and trial scheduling conference. In the end, that lawyer was never retained.
8On June 16, 2023, a second lawyer formally came on record for all of R.W.’s matters. He advised the Court that he had received disclosure on June 8, 2023, and required five weeks to review disclosure and conduct a counsel pretrial. The matter was adjourned to July 21, 2023. Again, the Crown proactively reached out to counsel on June 20, 2023, to arrange a judicial pretrial. The Crown continued to reach out to counsel stressing the length of time the matter had been in the system and the need to set trial dates promptly.
9On July 21, 2023, R.W.’s lawyer successfully applied to be removed as counsel of record. The matter was adjourned to August 17, 2023, for a self-represented judicial pretrial. On that date, a re-laid Information was before the Court that consolidated all of R.W.’s outstanding charges. The Crown elected by indictment and R.W. advised that he wished to have a jury trial. The matter was adjourned to a second judicial pretrial on September 7, 2023, so that R.W. could review a resolution proposal.
10On September 7, 2023, R.W. affirmed his election and a judicial pretrial in the Superior Court was set for September 29, 2023. On September 29, 2023, the matter was adjourned for a second judicial pretrial on November 1, 2023, so that R.W. could take steps to retain counsel for trial.
11On November 1, 2023, R.W. was still self-represented. Kathleen Kealey attended the pretrial and advised the Court that she may bring a Rowbotham application on R.W.’s behalf and that R.W. had also appealed the denial of his legal aid application. Failing success on those fronts, Ms. Kealey advised that she was prepared to accept a section 486.3 appointment. R.W. told the Court that he wished to set trial dates in accordance with Ms. Kealey’s availability. The Crown did not oppose him doing so.
12A two-week trial commencing on September 3, 2024, was accepted by both parties. A Crown pretrial motion for a testimonial aid and the appointment of section 486.3 counsel was scheduled for March 14, 2024. The Crown flagged whether time should be set aside for R.W. to bring a section 276 or 278.92 application, but the Court stated that those matters could be dealt with once R.W. secured counsel.
13On March 8, 2024, Mr. Lust reached out to the Crown and advised that he had been retained. Disclosure was provided almost immediately. The pretrial motions on March 14, 2024, were adjourned to June 4, 2024, and Mr. Lust advised that he intended to bring a section 276 and 278.92 application. Stage one of those matters was scheduled for June 4, 2024. Stage two was scheduled for August 19, 2024. On May 17, 2024, the defence filed its motion materials. The Crown ultimately conceded stage one of the application.
14On June 21, 2024, the Crown informally advised the defence that it intended to file an amended Indictment reducing the number of counts. The Crown provided the anticipated wording. The amended Indictment was not formally filed, however, until July 24, 2024.
15On July 29, 2024, approximately three weeks before the stage two hearing, the Crown met with the complainant to discuss the outstanding section 276 application. During this meeting, the complainant advised the Crown for the first time that she possessed 93 pages of text-based messages between her and R.W. relating to her mindset during the period covered by the section 276 application. The duty book notes relating to this meeting were disclosed to the defence the very next day. The complainant, as was her right, asserted a privacy interest in the material and declined to provide the Crown a copy of the messages for disclosure purposes.
16On August 6, 2024, the Crown met with the complainant a second time. She provided more information regarding the events that purportedly took place between her and R.W. during the first half of August 2022. Duty book notes relating to this meeting were disclosed immediately and the Crown advised the defence that it intended to bring a Seaboyer application returnable on August 19, 2024.
17On August 7, 2024, the defence filed an adjournment application returnable on August 19, 2024. I granted the adjournment for reasons canvassed in more detail below.
18The Court offered replacement trial dates in the winter and early spring of 2025. Counsel for R.W. was not available for trial until June 2025. The pretrial motions were ultimately re-scheduled in the fall of 2024 and early winter of 2025. On November 19, 2024, counsel for R.W. advised of his intention to bring a section 11(b) application. The section 11(b) application proceeded before me on April 8, 2025.
Issues
19R.W. concedes only 84 days of defence-caused delay emanating from explicit section 11(b) waivers given by prior counsel in the Ontario Court of Justice. He argues that he neither waived nor caused any further delay in his matter, and no exceptional circumstances arose that would justify his trial being heard outside the presumptive Jordan ceiling.
20The Crown contends that R.W. caused significant delay by explicitly waiving section 11(b) at various points in the Ontario Court of Justice, discharging his counsel of record on two occasions after disclosure had been made and resolution discussions had taken place, and declining earlier trial dates because his choice of section 486.3 counsel was not available.
21The issues I must decide in this application are:
What periods of delay in the Ontario Court of Justice were the subject of explicit waivers of section 11(b)?
Should delay be attributed to the defence because R.W. twice discharged his counsel of record in the Ontario Court of Justice?
How much delay, if any, should be attributed to the defence because R.W.’s preferred section 486.3 counsel was not available for a two-week trial in April 2024?
Should some period of delay be attributed to the defence because R.W.’s counsel was not available for replacement trial dates until June 2025?
If the net delay exceeds the presumptive ceiling, was the adjournment of the September 2024 trial dates prompted by an exceptional circumstance?
Delay in the Ontario Court of Justice
22I find that the defence caused a total of 150 days of delay while R.W.’s matters progressed through the Ontario Court of Justice.
23First, 98 days flow from explicit waivers of section 11(b) given by prior counsel. By March 3, 2023, the oldest of R.W.’s charges had been in the system for seven months. R.W. had the benefit of counsel throughout that time. The charges were not complex. The sexual assault charges had only been in the system for approximately one to two months. With that said, they stemmed from the same alleged confrontations that took place in August and September 2022 that gave rise to the October breach charges. In my view, in the circumstances, seven months was more than ample time to secure instructions and move the matter along. Because the defence was unable to do that despite the significant time that they had been given, they reasonably waived section 11(b) on March 3, 2023, to continue resolution discussions and secure the necessary instructions. That waiver was later extended to June 9, 2023. This totals 98 days of delay.
24Second, 35 days of delay flowed from R.W. discharging his original counsel of record. R.W. was arrested on May 26, 2023, and released three days later after a contested show cause hearing. On that date, all his matters were adjourned to June 16, 2023. On June 16, 2023, new counsel came on record for all matters. That lawyer reasonably sought five weeks to review disclosure and conduct a counsel pretrial. The matters were adjourned to July 21, 2023, for that purpose. The problem is that these steps had already been taken in the proceedings by R.W.’s initial lawyer. In fact, significant time before the explicit section 11(b) waiver had already been allotted for that purpose on what was not a complicated matter. The Jordan ceilings contemplate the time reasonably required to review disclosure and prepare a defence. The Jordan ceilings do not, however, contemplate these same steps occurring repeatedly with different counsel. I agree with the line of cases that hold that when an accused changes counsel after significant steps in the proceeding have already taken place, the delay required to repeat those steps will generally be characterized as defence delay or delay attributable to an exceptional circumstance. In either case, it is not delay that counts toward the presumptive ceiling: see R v Browne, 2020 ONSC 5244, at paras. 50-62; R v Bettes, 2024 ONSC 2684, at para. 22; R v Saeed, 2021 ONSC 5084, at paras. 9-10; see also R v Cody, 2017 SCC 31, at para. 40. As a result, the delay between June 16, 2023, and July 21, 2023, was caused by the defence.
25To be clear, I am not suggesting that R.W. acted irresponsibly or in bad faith when he discharged his first or second lawyer. Those were his decisions to make. I am also not suggesting that the request by his second counsel for a five-week adjournment to review the file was unreasonable. It clearly was not. The issue is simply that these steps had already been taken and it would be unfair for the time required to repeat them to count against the Crown in a Jordan analysis, particularly where the Crown is entirely powerless regarding the nature and timing of an accused’s decision-making in this respect.
26Third, a further 17 days shall be visited on the defence. Instead of proceeding to next stages on July 21, 2023, R.W.’s second counsel successfully sought to be removed from the record. A judicial pretrial had already been arranged for August 1, 2023, so that the matter could move along expeditiously. Due to R.W. discharging his second counsel, the judicial pretrial could no longer proceed and the matter had to be adjourned to August 17, 2023, for a self-represented judicial pretrial. For the same reasons set out above, the period between August 1, 2023 (the original date secured for a judicial pretrial), and August 17, 2023 (the self-represented judicial pretrial), is defence-caused delay as it flowed directly from R.W.’s second counsel being removed from the record.
27I will make two final points regarding the delay in the Ontario Court of Justice. I appreciate that after R.W.’s original counsel waived section 11(b) and engaged in prolonged discussions with the Crown that R.W. faced new breach charges in May 2023. However, these charges were straightforward no-contact breaches. They would not have necessitated a further three-month adjournment for experienced counsel to review uncomplicated disclosure relating to a file with which he had otherwise been dealing for the better part of nine months. As a result, I find that the delay between June 16, 2023, and August 17, 2023, was exclusively the result of R.W. discharging two different lawyers, rather than delay attributable to new charges.
28Finally, I decline to characterize the period between August 17, 2023, and September 7, 2023, as defence-caused delay. On August 17, 2023, the Crown introduced a re-laid Information that amalgamated all of R.W.’s outstanding charges. For the first time, the Crown elected by indictment. The Crown does not have to justify its decision-making in that regard, and the new election was, in any event, seemingly prompted by limitation periods in the Criminal Code. It matters not. The fact remains that on August 17, 2023, R.W. was presented with options regarding his mode of trial that were not available to him earlier in the process. I find it reasonable for a self-represented litigant to take time to consider that issue. The Crown fairly and readily conceded this point in oral submissions.
Scheduling Original Trial Dates in Superior Court of Justice
29For the following reasons, I am prepared to deduct 47 days as defence-caused delay due to Ms. Kealey’s unavailability in April 2024 when trial dates were first secured.
30R.W.’s first appearance in the Superior Court of Justice took place on September 29, 2023. The pretrial judge did not offer trial dates at that time because R.W. had not yet retained counsel. R.W.’s second pretrial in the Superior Court of Justice proceeded on November 1, 2023. Ms. Kealey appeared with R.W. Given that a section 486.3 appointment was somewhat inevitable in the circumstances, the pretrial judge asked R.W. if he wished to set dates in accordance with Ms. Kealey’s schedule and he responded, “absolutely.” He was not asked to waive section 11(b) for that purpose, nor was it explained to him that waiting for Ms. Kealey could constitute an implicit waiver of his section 11(b) rights.
31The Court offered a two-week trial commencing January 2, 2024, but the pretrial judge readily declined those dates on the basis that they were “way too soon,” particularly given that R.W. had not yet secured counsel. The Court offered the weeks of February 5 and 12, 2024. Both parties declined those dates. The Court then offered the weeks of April 15 and 22, 2024. Ms. Kealey was only available for one of those two weeks. The Crown advised that although they would have to re-assign some trials, they could “make it work.” In my view, this constitutes an acceptance of the April dates. I appreciate that the Crown also stated that trial dates in May would be “better.” However, doing so did not undermine its earlier acceptance of the April dates.
32The Court advised that it did not have dates available in May, June, or July of 2024. The Court also did not offer dates in August 2024. The next two-week trial date offered commenced on September 3, 2024. These dates were accepted by both parties.
33The Crown seeks to have the entire period between April 15, 2024, and September 3, 2024, visited on the defence on two bases. The Crown argues that R.W. implicitly waived his section 11(b) rights when he opted to set dates in accordance with Ms. Kealey’s availability. In the alternative, the Crown maintains that the defence nonetheless caused the delay between April 15, 2024, and September 3, 2024, because of Ms. Kealey’s unavailability. For the following reasons, I decline to attribute the entirety of the delay to the defence.
34First, I am not satisfied that R.W. either explicitly or implicitly waived section 11(b) when he rejected the April dates in favor of scheduling a trial in accordance with Ms. Kealey’s availability. R.W. was self-represented at the time. A section 11(b) waiver was not canvassed with him during the November pretrial. No one explained to him that by foregoing the April dates he might be implicitly waiving his Charter right to a timely trial. Further, the Crown did not insist on setting the April dates unless a section 11(b) waiver was forthcoming from R.W, as it arguably did in the Ontario Court of Justice. Rather, I find that the Crown was content at the time to forego the April dates given that the September dates fell within the Jordan ceiling and the April dates were not otherwise ideal.
35Despite section 11(b) not being raised during the November pretrial, the Crown argues that R.W. would have been aware that he was implicitly waiving section 11(b) because he was advised of that consequence during an earlier pretrial in the Ontario Court of Justice on September 7, 2023. I cannot accept this argument.
36On September 7, 2023, the parties were canvassing trial dates in the Ontario Court of Justice because the Crown was prepared to consent to a re-election provided R.W. waived the limitation period. In that context, and at the Crown’s behest, the pretrial judge canvassed with R.W. whether he was prepared to waive section 11(b) to wait for Ms. Kealey. Despite section 11(b) having been discussed, however, I am not sure R.W. ever did, in fact, explicitly waive his section 11(b) rights during that appearance, nor am I satisfied based on the record before me that R.W. fully understood what he was being told about section 11(b).
37The Crown argues that because of those discussions, two months later in the Superior Court of Justice, R.W. would have understood that by waiting for Ms. Kealey he was, at minimum, implicitly waiving his section 11(b) rights. I disagree. The record before me does not disclose an informed and unequivocal waiver of section 11(b) on the part of R.W.
38R.W. may have been willing to explicitly waive section 11(b) in the Ontario Court of Justice in order to wait for Ms. Kealey based on the quantified and known delay that would flow from doing so in that Court. But I cannot and do not infer from that fact, however, that 1) he was later prepared to waive section 11(b) in the Superior Court of Justice in different circumstances with different resulting delay, or 2) he understood that by remaining silent on section 11(b) he could be implicitly waiving his rights. In the end, R.W. was self-represented at the November pretrial. He was not asked to waive his section 11(b) rights, and no one explained to him that he may otherwise be taken to have done so if he declined the April dates. At minimum, particularly given that R.W. was self-represented, the Court would have had to canvass section 11(b) with R.W. before he could now be taken to have waived his Charter rights, either implicitly or explicitly. In fact, not only did R.W. not waive his section 11(b) rights, but he repeatedly asserted them during the pretrial. For example, R.W stated that he was, “enthusiastic for the soonest dates possible because obviously my life is on hold right now.”
39Second, proceeding on the basis that R.W. did not waive his section 11(b) rights, I am also not prepared to characterize the entire period of delay between April 15, 2024, and September 3, 2024, as defence-caused delay solely because Ms. Kealey was unavailable for one week in April 2024. After a single date is rejected, the defence does not necessarily become completely responsible for the entire delay that follows when the Crown and the Court are also unavailable: see R v Hanan, 2023 SCC 12, at para. 9; R v Jones, 2025 ONCA 103, at para. 31. Rather, the resulting delay must be distributed pursuant to a contextual analysis.
40In Hanan, a six-week murder trial had to be adjourned due to late disclosure and the unavailability of a Crown witness. The adjournment fell at the feet of the Crown. The Court offered a new trial commencing on June 3, 2019, but the defence was unavailable. The trial date was ultimately re-scheduled for October 28, 2019. The trial judge was not willing to characterize the entire period between June 3, 2019, and October 28, 2019, as defence-caused delay because other than the June trial date, the Court was not able to accommodate a trial until October 28, 2019, and the defence had not contributed to the need to adjourn. On appeal, the Crown argued that the entirety of the delay between June and October should have been treated as defence-caused delay. The Court of Appeal, and ultimately the Supreme Court of Canada, disagreed:
Typically, aside from time legitimately taken to respond to the charges, the delay that results when the court and the Crown are ready to proceed and the defence is not is counted as defence delay: R. v. Thanabalasingham, 2020 SCC 18, 390 C.C.C. (3d) 400, at para. 9; Jordan, at para. 64. There is, however, a qualification: "periods of time when the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable": Jordan, at para. 64.
R v Hanan, ONCA, at para. 53; see also R v Hanan, 2023 SCC 12, at para. 9.
41The Supreme Court rejected a bright-line rule that would have all the delay after a rejected date falling to the defence. Rather, the Court concluded that a contextual approach to distributing delay is required in those circumstances.
42In Hanan, the Court was dealing with the re-scheduling of a trial after an adjournment rather than the setting of initial trial dates. After the Supreme Court released its decision, the question of whether the contextual approach applied in all circumstances or only where Crown conduct has precipitated an adjournment remained an open issue.
43The Court of Appeal for Ontario recently answered this question in R v Jones, 2025 ONCA 103. There, the accused appeared on August 6, 2021, for his first appearance in the Superior Court. The trial coordinator offered pretrial dates of September 20, 21, and 22, and November 2, 2021. The defence was only available on November 2. The application judge declined to characterize the period between September 20 and November 2, 2021, as defence-caused delay based on the Godin principle, i.e., that the defence are not required to maintain a state of perpetual availability, and because the Court was not available between September 22 and November 2.
44On appeal, the Crown argued that the contextual approach adopted in Hanan only applied where Crown conduct has necessitated the need for further dates, not when the defence decline a date during the setting of original pretrial or trial dates. In the latter circumstance, the Crown argued that all the resulting delay after a date is rejected falls to the defence. Relying on Hanan, the defence argued that there is no “bright line rule” holding the defence responsible for all the delay after they have declined a date offered by the Court, and that the contextual approach described in Hanan applied in all cases. The defence argued that the application judge appropriately declined to visit the delay on the defence given that they were only unavailable for three days and the Court was unavailable for the 40 days that followed.
45The Court of Appeal agreed with the defence that the contextual approach set out in Hanan applies in all cases. However, the Court found that the application judge erred in law by not attributing some of the delay to the defence pursuant to that contextual approach:
In my view the application judge erred in failing to characterize any portion of this delay as defence delay. While Hanan rejects a bright-line rule apportioning the defence with all of the delay after it rejects an available date, it did not adopt an inverse bright-line rule apportioning the defence with none of the delay. Instead, it directs courts to consider “all relevant circumstances” to apportion the delay among the parties.
Jones, at para. 32.
46The Court found that visiting some of the delay on the defence was not unfair given that the Crown did not cause the need for a pretrial: Jones, at para 35. The Court recognized that the system was not available for 40 days following the rejected dates, but it also appreciated that defence counsel’s unavailability in September contributed to the delay. The Court went on to characterize half of the delay as defence-caused and the other half as institutional: Jones, at para. 36.
47In the present matter, the need to set trial dates was clearly not a consequence of Crown conduct. When dates were offered, R.W.’s anticipated s. 486.3 counsel was not available for a two-week trial in April 2024. The Court and the Crown were available. The next available date was in September 2024. It follows as a basic fact that defence unavailability contributed to the four-and-a-half-month delay. Had defence been available, the trial could have commenced in April 2024. With that said, the Court did not have availability in May through August. As a result, it would be unfair to visit all the delay on the defence. I also consider that the Crown did not insist on setting the April dates with a different s. 486.3 counsel. Though the Crown was available for the April dates, it appeared relatively content to forego them given that they were not ideal. In all the circumstances, I find that apportioning a third of the delay on the defence is a fair and measured approach.
48A further 47 days shall be characterized as defence-caused delay.
Re-scheduling of Original Trial Dates
Defence Delay
49As set out above, on August 19, 2024, R.W. successfully sought an adjournment of the September 3 trial dates. In addition to the trial being re-scheduled, numerous pretrial motion dates had to be scheduled. R.W.’s counsel was available for the most part in the fall of 2024 to conduct those pretrial motions. However, he rejected trial dates in January, February, and April of 2025 because he was not available until June 2025 for an eight-day trial.
50For the same reasons set out above, I decline to visit the entire period between the first offered trial date in January 2025 and the June trial dates on the defence, particularly because the adjournment did not lie at their feet. When determining the apportionment of delay, as noted above, a contextual analysis is required that includes a consideration of the reasons for the adjournment, an issue to which I will now turn: see Hanan, Jones.
51Counsel for R.W. came on record in mid-March 2024. He accepted a two-week jury trial that was five months away despite knowing that he had to bring a section 276 and 278.92 application in the interim. He did not seek to adjourn the September trial dates when he first came on record. In good faith, R.W.’s counsel tried to prepare the defence such that the trial dates could be preserved notwithstanding his late arrival on the file.
52Dates for the section 276 and 278.92 application were set down for June 4, 2024, and August 19, 2024. The stage two hearing was scheduled to proceed only two weeks before trial. The defence filed its application materials late on May 17, 2024. For its part, in a good faith effort to keep the matter on track, the Crown accepted the late filing despite it not leaving it much time to reply.
53On June 4, 2024, the Crown conceded stage one of the section 276 application. The Crown subsequently met with the complainant on July 29, 2024, to discuss stage two of the application. In the interim, the Crown was on vacation for three weeks and undoubtedly had other matters assigned to him that required his attention. As noted above, the Crown became aware during its meetings with the complainant in late July and early August 2024 that she possessed 93 pages of potentially relevant text-based messages between her and R.W. On August 6, 2024, the Crown filed a Seaboyer application returnable on August 19, 2024, the date reserved for stage two of R.W.’s section 276 application.
54On August 7, 2024, the defence filed an adjournment application also returnable on August 19, 2024. The Crown opposed the adjournment. I granted the defence request for an adjournment on the basis that there was insufficient time before trial to resolve the late-breaking evidentiary issues that had arisen, specifically, a Crown Seaboyer application, both stages of a Mills application for the text messages possessed by the complainant, a potential discreditable conduct application, the second stage of the section 276 and 278.92 application, and potentially a second section 276 application in the event that any producible text messages disclosed prior sexual activity. Presuming the Court was even available to hear and rule on all these pretrial motions, the defence could not have both prepared for and argued all these pretrial motions while also forging its strategy for an eight-day jury trial.
55In my view, the defence was not even partly responsible for the adjournment. Quite the contrary. From my perspective, counsel for R.W. consistently tried to preserve the trial dates, particularly given that the bail conditions on R.W. were becoming somewhat onerous. With that said, I also do not fault the Crown. Indeed, I find that the Crown was also doing its level best to keep the matter on track. Sometimes, there is no one to blame when matters go off the rails. This is such a circumstance.
56Ideally, the Crown could and would have met with the complainant earlier to discuss the section 276 application. However, perfection is not the standard, and the Crown was on vacation for a significant period between the stage one application on June 4, 2024, and the meeting on July 29, 2024.
57By the time the Crown met with the complainant, she had already retained local counsel and the stage two application was not proceeding for another three weeks. I accept that the Crown had no reason to foresee any difficulties with scheduling, or that the complainant would advise him that she had close to one hundred pages of text messages relating to the very period set out in the section 276 application.
58The Crown immediately disclosed its notes of the meetings; it promptly filed a Seaboyer application returnable on August 19, 2024, the date already reserved for stage two of the section 276 application; it held a counsel pretrial with the defence in early August 2024 to discuss how they may resolve all the issues yet still start the trial on time; it proposed an agreed statement of fact in relation to the section 276 application; it agreed to receive materials relating to a Mills application on an expedited timeline in the hopes it could also be argued on August 19, 2024; and it agreed to accept an amended section 276 application outside of the filing deadline.
59Despite all these good faith efforts, however, I felt there was simply insufficient time for R.W. to properly prepare his defence. My decision to grant the adjournment reflected only that unfortunate fact. It was far from an indictment of the Crown’s conduct in the months leading up to trial, which from my perspective was always diligent and proactive.
60In summary, the record before me aptly demonstrates that both counsel were conducting themselves collaboratively, efficiently, and reasonably. Despite their best efforts at keeping the matter on track after counsel came on record in mid-March 2024, that simply did not happen.
61With that said, though counsel for R.W. was not at fault for the adjournment, the Court and the Crown were available for numerous trial dates in the winter and early spring of 2025. R.W.’s counsel was not available until June 2025, nearly ten months after the adjournment was granted. In my view, though far from an exact science, a fair and reasonable approach would have 30 days of this period attributable to the defence: see Hanan, Jones.
Exceptional Circumstances
62I have attributed 227 days of the total delay to the defence. That leaves a net delay of 820 days, a delay falling under the Jordan ceiling. The application is dismissed on that basis alone. However, I will nonetheless consider the Crown’s argument that the adjournment of the September trial dates was prompted by an exceptional circumstance.
63I agree with the Crown that the late disclosure by the complainant of information that necessitated additional pretrial motions was not reasonably foreseeable in the circumstances of this case. Trials are not “well oiled machines”: Jordan, at para. 73. Trial judges must recognize certain practical realities of criminal litigation. Unforeseen events arise, and mistakes happen. The Jordan timelines do not leave much room for contingency. When something unforeseeable happens before or during trial or when the Crown makes a good faith mistake that results in an adjournment, the total delay will almost inevitably exceed the Jordan ceiling. I do not understand the law to be that a stay must necessarily follow in those circumstances. Jordan demands no such result. Instead, when a reasonably unavoidable or unforeseeable event arises that causes delay, including good faith mistakes, the question for section 11(b) purposes is whether the Crown took reasonable efforts to mitigate the delay.
64Here, I am not sure what else the Crown could have done to address the delay. The Crown was agreeable to proceeding with all motions ahead of the September trial dates, regardless of the work involved or the late receipt of materials. It made itself available in 2025 for replacement dates. The Crown asked trial coordination whether earlier trial dates could be secured with another judge leaving me to preside on the remaining pretrial motions as a case management judge. The Crown also made inquiries about whether earlier dates could be made available were the matter reduced to a five-day trial, with a view to potentially cutting counts or certain evidence. The Crown is not required to “show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay”: Jordan, at para. 80; Cody, at para. 69. I am more than satisfied that the Crown did so here.
65The only thing the Crown could potentially have done differently was meet the complainant earlier. However, I am not sure that would even have made a difference. Further, it is easy to say with the benefit of hindsight that the Crown should have moved more promptly. But the Crown had no reason to think that meeting the complainant three weeks before the stage two hearing would cause issues.
66In a perfect world, the Crown would have acted immediately and met the complainant within days of receiving R.W.’s stage two materials. However, placing such an expectation on the Crown does not reflect the reality of criminal litigation. Issues and cases must be triaged. The Crown must act reasonably, not perfectly or necessarily immediately. The Crown met with the complainant three weeks before the stage two hearing in circumstances where it had no reason to foresee that doing so would spawn other pretrial motions. The Crown did not conduct itself unreasonably. To so find would also fail to appreciate that the small amount of runway between the stage two hearing and the September trial dates was on account of R.W. retaining his third counsel six months after his first judicial pretrial in the Superior Court, 19 months after he was first charged, and five months before a judge and jury trial.
67Finally, I appreciate that the Crown filed a new Indictment towards the end of July 2024 that caused some confusion. But, in the end, the late filing did not contribute to the adjournment. The amended Indictment included six counts versus twelve. The Crown removed certain counts that were no longer in the public interest to pursue, and it combined others. For example, the two counts of sexual assault were amalgamated into one count, and the two counts of criminal harassment were combined into one count spanning a period of over a year.
68In my view, the Crown should have simplified the Indictment earlier to avoid unnecessary confusion shortly before trial. With that said, any uncertainty that flowed from the new filing, that being whether the Crown’s theory had changed regarding the criminal harassment allegations, was cleared up on August 19, 2024. Notwithstanding the new one-year date range particularized in the now single count of criminal harassment, the Crown confirmed on record that its theory of the case had not changed and that it was still relying on specific conduct committed on two specific days to lay the foundation for a conviction.
69The debate regarding the new Indictment, however, did give rise to concerns about whether the Crown had to bring a discreditable conduct application. After the adjournment, the Crown indeed brought such an application where one had not been raised earlier. In my view, the failure to raise the discreditable conduct issue earlier was the Crown’s error. I have more to say on that below. However, like the late filing of the amended Indictment, the Crown’s failure to promptly raise the issue of bad character evidence did not contribute to the adjournment.
70I say this because if the discreditable conduct application was the only matter that had to be dealt with before the trial commenced in September 2024, I am confident that could have been done. Ultimately, the Crown’s application was in large measure conceded given the benign nature of the bad character evidence the Crown sought to adduce and its rather obvious relevance to certain live issues in the trial.
71In the end, the driving factor behind the adjournment was the late disclosure from the complainant of certain matters that triggered the necessity of numerous pretrial motions in a matter that was already hard-pressed for time. The Crown was not responsible for the adjournment either on the basis that it did not promptly meet with the complainant regarding the section 276 application or because it failed to bring a timely discreditable conduct application.
72I will make one final point regarding the Crown’s discreditable conduct application. The Crown argues that to the extent the discreditable conduct issue contributed to the adjournment – though I have since found that it did not – that it was the defence that failed to raise the issue. The Crown asserts that bad character evidence lying outside the scope of the indictment is “presumptively admissible” in criminal harassment cases. The Crown maintains that the onus falls on the defence in this context to both raise the issue and satisfy the Court that the prejudicial value of the evidence outweighs its probity. When asked how the defence would even know what discreditable conduct the Crown might seek to adduce such that they could bring an application to exclude it, the Crown answered, “they would know from the disclosure.” I wholly reject the Crown’s argument on this issue. The Crown provided no appellate authority supporting its position.
73The defence was not required to identify from the disclosure what it felt the Crown may seek to adduce by way of discreditable conduct, and then bring an application seeking to have that evidence excluded. When dealing with evidence that meets the definition of discreditable conduct, the Crown bears both the procedural burden of raising the issue with the Court, and the persuasive burden of establishing that the probative value of the evidence outweighs its prejudicial impact. The approach advocated by the Crown, in my view, is completely at odds with longstanding jurisprudence that places the burden squarely on the Crown to justify the admissibility of bad character evidence, even where its admissibility is arguably “obvious.”
74To that end, I accept that pre-charge bad character evidence in the context of criminal harassment cases may often be relevant to the complainant’s state of mind and the intent of the accused. I accept that the history of the relationship between the parties is relevant in criminal harassment cases because it often speaks to those same issues. Appellate authority amply supports these propositions. The Crown, however, advocates that because bad character evidence is always or often obviously relevant to those issues, it is presumptively admissible. This is incorrect, in my view. The trial judge must always act as a gatekeeper and weigh the probative value of bad character evidence against its prejudicial impact. This is particularly important in jury matters. The appellate cases cited by the Crown do no more than confirm the relevance of the evidence in this context.
75I appreciate that in many criminal harassment cases, evidence of this nature will be admitted as its relevance is well-acknowledged in appellate jurisprudence. In circumstances where the admissibility of the evidence is “obvious,” the defence will hopefully admit the issue during pretrial discussions, a move consistent with their Jordan obligation to make reasonable concessions. For the most part, the defence did so here. But it always remains the Crown’s burden to raise the issue and seek a ruling where necessary, even where the Crown is of the view that the probative value of the evidence clearly outweighs its prejudicial value.
76The Crown relied on R v Krushel, 2000 CanLII 3780 (ON CA), [2000] O.J. No. 302 (C.A.) and R v D.D., 2005 CanLII 42472 (ON CA), [2005] O.J. No. 4904 (C.A.). In my view, those cases stand for the proposition that pre-charge bad character evidence is often relevant to the complainant’s state of mind, the objectivity of their fear, and the accused’s intent, all elements of the offence of criminal harassment, and for those reasons, the evidence will often have probative value. But the Court did not state that for those reasons the evidence is presumptively admissible, and an application by the Crown unnecessary. The Court did not state that the burden falls on the defence to raise the issue and establish that the prejudicial impact of the evidence outweighs the probative value. The ratio of those cases is that pre-charge bad character evidence in criminal harassment cases is often probative for reasons unrelated to propensity and therefore the probative value cannot simply be ascertained by applying the Handy factors.
77Indeed, the Court in D.D. makes repeated references to “the Crown” as having been the entity who sought to introduce the evidence, and that the Court was required to weigh the probative value of the evidence against its prejudicial effect. Further, in both cases, the Court stated that the trial judges properly admitted the evidence, not that they properly decided not to exclude it. Nowhere did the Court state either implicitly or explicitly that the Crown did not carry the burden. The Court simply emphasized that the probative value of bad character evidence must be assessed in relation to the purpose for which it is tendered, and that it is wrong to exclude it solely because it lacks similarity or connectedness to the offences charged. Where bad character evidence in criminal harassment cases is tendered to prove that the complainant reasonably feared the accused and that the accused would have known of or been reckless with respect to the complainant’s fear, a lack of similarity between the prior conduct and the conduct giving rise to the charge will be of minimal relevance.
78In summary, the appellate authorities tendered by the Crown do not support the proposition that pre-charge bad character evidence is presumptively admissible and that the burden falls on the defence to both raise the issue and convince the Court that the prejudicial value of the evidence outweighs its probative force. For that reason, even had I found that the need for a discreditable conduct application contributed to the adjournment, I would not have found the defence even partly responsible for it.
79For the above reasons, I find that the delay between August 19, 2024, and June 23, 2025, flowed from exceptional circumstances.
Conclusion
80I calculated the total delay in this matter based on the oldest of the charges faced by R.W, i.e., the date on which the first Information laid against R.W. was sworn. Given that I have found the delay reasonable based on the oldest charge, I need not address the question of whether the total delay should be assessed on a count-by-count basis because the charges were originally laid at different times: see R v Wells (unreported, 13 February 2024) Brampton 22-1143 (OCJ).
81Even before accounting for the exceptional circumstance that arose, the total net delay is below the presumptive ceiling and within a constitutionally acceptable range. The application is therefore dismissed.
McVey J.
Released: April 15, 2025
CITATION: R. v. R.W., 2025 ONSC 2297
COURT FILE NO.: 23-11405739B
DATE: 20250415
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
R.W.
Defendant/Applicant
RULING ON SECTION 11(B) APPLICATION
McVey J.
Released: April 15, 2025