R. v. Martin and Doyle, 2025 ONSC 2783

COURT FILE NO.: CR-24-004 DATE: 2025/05/07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING Respondent – and – NICHOLAS AARON MARTIN and MACKENZIE DOYLE Applicants M. Crystal , for the Crown J. McFadden , for the defendant, Nicholas Aaron Martin J. Raftery , for the defendant, Mackenzie Doyle HEARD: December 19, 2024 ELLIES J. REASONS FOR DECISION ON APPLICATION FOR A STAY OF PROCEEDINGS

OVERVIEW

[ 1 ] The applicants are charged along with two other individuals with numerous serious offences, including robbery and pointing a firearm. The offences are alleged to have occurred during a home invasion on July 15, 2021. The Information charging the applicants was sworn on July 16, 2021. The charges are scheduled for trial in November 2025. The trial is anticipated to end on December 15, 2025. If the trial ends on that date, the case will have taken 1,603 days, or 52.6 months, to complete. [1] That is more than 22 months beyond the presumptive ceiling of 30 months established in R. v. Jordan , 2016 SCC 27 , [2006] 1 S.C.R. 631, at para. 46 , for cases in the superior court. For that reason, the applicants seek a stay of the proceedings under ss. 11(b) and 24(2) of the Canadian Charter of Rights and Freedoms .

[ 2 ] The Crown opposes the application on the basis that the delay beyond the Jordan presumptive ceiling was caused by two exceptional circumstances: (1) the Crown’s justifiable decision to proceed against all of the alleged perpetrators jointly, and (2) the “ripple effect” of the COVID-19 pandemic.

[ 3 ] Following the hearing of the application, I reserved my decision. The next day, I ordered that the charges against the applicants be stayed for reasons to be delivered.

[ 4 ] These are my reasons.

FACTUAL BACKGROUND

[ 5 ] The Information sworn on July 16, 2021, named four accused: Nicholas Aaron Martin, Jordan Dustin Cayer, Mackenzie Doyle, and Randy Allen Rogers. Although the majority of the original charges named all four accused jointly, Martin was the only individual named in every charge.

[ 6 ] According to the factum filed on behalf of Martin, all of the accused were arrested on July 15, 2021, the date of the alleged offence. Eventually, three of the four, namely, Cayer, Doyle, and Rogers, were released from custody, although they did not remain that way. Martin, however, was never released from custody. His detention was continued following a contested bail hearing held on October 4, 2021, and a bail review held in February 2022. He remained in custody until I stayed the charges against him on December 20, 2024.

[ 7 ] Martin and Cayer were represented throughout the proceedings by the same lawyers: Jeffrey McFadden for Martin and George Fournier for Cayer. As I will come to, Doyle and Rogers were required to change lawyers at different points in time. As I will also discuss, at another point in time, the Crown severed the charges against Rogers from the charges against the other accused. However, it was later agreed that the charges against Rogers would be tried together with the charges against the remaining accused. Therefore, as of the date of the hearing of this application, the charges against all four were scheduled to be tried commencing on November 24, 2025.

LEGAL FRAMEWORK

[ 8 ] The law in this area is well-settled. The following summary of the Jordan framework for analyzing delay employs the terminology used by Gillese J.A. in R. v. Coulter , 2016 ONCA 704 , 133 O.R. (3d) 433, at paras. 34-53 :

• The first step is to calculate the total delay from the date the information was sworn until the date the trial is expected to end: Jordan , at para 47 .

• Defence delay is then deducted from the total delay, resulting in the “net delay”: Jordan , at para. 66 .

• Defence delay is either: (1) delay that results from a defence waiver of s. 11 (b), or (2) delay caused solely or directly by the conduct of the defence: Jordan , at paras. 61 and 63 .

• If the net delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut the presumption by establishing the presence of exceptional circumstances: Jordan , at para. 47 .

• In general, exceptional circumstances are either: (1) discrete events, or (2) particularly complex cases: Jordan , at para. 71 . They lie outside the Crown's control because they are reasonably unforeseen or unavoidable and the delay they cause cannot reasonably be remedied: Jordan , at para. 69 .

• The delay caused by discrete events must be deducted from net delay to arrive at the “remaining delay”: Jordan , at para. 75 .

• If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time it has taken is justified and the delay is reasonable: Jordan , at para. 80 .

• If the remaining delay falls below the ceiling (which I will call “sub-ceiling delay”), the onus is on the defence to show that it is unreasonable: Jordan , at para. 48 . It may do this by demonstrating both: (1) that it took meaningful, sustained steps to expedite the proceedings, and (2) that the time the case has taken markedly exceeds the reasonable time requirements of the case: Jordan , at paras. 82 and 87 .

[ 9 ] With this framework in place, I move to a discussion of the issues raised by the Crown.

ISSUES

[ 10 ] As I indicated earlier, the Crown contends that the delay in this case should not result in a stay of the charges against the applicants for two reasons, namely, the presence of multiple accused and the effect of the COVID-19 pandemic.

[ 11 ] With respect to the presence of multiple accused, the Crown submits that delays caused by a co-accused should be deducted from the total delay as defence delay for that accused and from the net delay as a discrete event exceptional circumstance for the others. The Crown concedes that neither applicant is responsible for much, if any, delay. However, it submits that, once the delay caused by the other accused individuals is deducted from the net delay and the effect of the pandemic is properly apportioned between the parties, the remaining delay is under the Jordan ceiling.

[ 12 ] For reasons I will explain, I am unable to agree. In the analysis that follows, I will address each of the Crown’s arguments when that argument arises within the context of the periods of delay identified by the Crown in its submissions.

[ 13 ] I turn to the first of those periods now.

ANALYSIS

September 30, 2021, to November 3, 2021

[ 14 ] Mr. McFadden first wrote to the Ontario Court of Justice (the “OCJ”) Trial Coordinator (the “TC”) on September 22, 2021, to set a date for a judicial pre-trial conference (a “JPT”) in that court. The next day, the OCJ TC offered November 15, 2021. Mr. McFadden responded that he was available. So did the Crown. However, on September 30, 2021, Mr. Fournier advised that he was not available. I have no information on the availability of Doyle or her counsel with respect to the November 15, 2021, date.

[ 15 ] On October 14, 2021, the TC offered a new date of December 6, 2021, for the JPT. All counsel advised that they were available, and that date was then confirmed in court on November 3, 2021. A date to return following the JPT was set for December 15, 2021.

[ 16 ] The Crown submits that the period from September 30, 2021, when Mr. Fournier responded that he was not available on the first date offered (November 15, 2021), to November 3, 2021, when the December 6, 2021, date was confirmed, should be characterized as a discrete event exceptional circumstance as it relates to Martin and Doyle, caused by the Crown's justifiable decision to proceed against multiple accused.

[ 17 ] In support of its argument, the Crown relies on a number of cases from the Court of Appeal for Ontario, beginning with the decision in R. v. Gopie , 2017 ONCA 728 , 140 O.R. (3d) 171. The Crown submits that these cases stand for the proposition that delay caused by a justifiable decision on the part of the Crown to proceed against multiple accused should be deducted from total delay under the Jordan framework.

[ 18 ] With respect, the decision in Gopie does not stand for this proposition. Indeed, it stands for the opposite proposition. In Gopie , as in this case, the Crown argued that “delay by one accused should be attributed to all” except in rare circumstances where one accused is causing such lengthy delays that severance is required: Gopie , at para. 126 . However, this submission was expressly rejected in Gopie . At para. 128, Gillese J.A. wrote on behalf of the court:

I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to [the applicants].

[ 19 ] Nonetheless, Gillese J.A. did not go on to apply the individualized approach she wrote about in Gopie . She did not deduct the delay caused by one accused as defence delay relating only to that applicant. Instead, she relied on the complex case exceptional circumstance referred to in Jordan to justify the length of time the case took beyond the presumptive Jordan ceiling with respect to both applicants: Gopie , at paras. 167-172 . In other words, to use an admittedly imperfect metaphor, the court in Gopie relied on exceptional circumstances not to move the football as a consequence of delaying the game, but rather relied on case complexity to move the goal line. It is important to bear in mind that this is not what the Crown seeks to do here. It does not seek to justify delay above the presumptive ceiling. Rather, it seeks to deduct delay from total delay to arrive at remaining delay below the ceiling.

[ 20 ] Nonetheless, in the other cases relied upon by the Crown in support of its submission, the court did approach delay in the way sought by the Crown in this case. In R. v. Pauls , 2020 ONCA 220 , 149 O.R. (3d) 609, at para. 82 , aff’d R. v. Yusuf , 2021 SCC 2 , [2021] 1 S.C.R. 5, the court deducted two periods of delay caused by the unavailability of one accused’s counsel as defence delay relating to that accused and as a discrete event “co-accused delay” in relation to the others. The court expressly declined to follow the individualized approach called for by Gopie because the accused individuals in Pauls had proceeded as a “collective”: at para. 46. [2]

[ 21 ] The court in Pauls relied on the fact that one group of accused agreed to forego earlier dates available to their counsel in favour of dates available to all counsel: at para. 54. For this reason, the court adopted the approach first taken by the Court of Appeal in R. v. Albinowski , 2018 ONCA 1084 , 371 C.C.C. (3d) 190 of assessing the delay due to the unavailability of one counsel as a “communal” deduction from total delay. This was also the basis for the communal deduction in another case relied upon by the Crown, namely, R. v. Chung , 2021 ONCA 188 , 402 C.C.C. (3d) 145, at para. 195 , leave to appeal refused, [2021] S.C.C.A. No. 320.

[ 22 ] In Albinowski , the Court of Appeal relied upon a decision of the Supreme Court of Canada released just days before it released its decision in Jordan . In R. v. Vassell , 2016 SCC 26 , [2016] 1 S.C.R. 625, the trial judge had found that much of the delay in the case had been caused by Vassell’s six co-accused and their counsel. Nonetheless, he dismissed the accused’s application for a stay under s. 11 (b): Vassell , at para. 4 . The Supreme Court agreed with the dissenting judge in the Albert Court of Appeal and entered a stay. Moldaver J., writing on behalf of the court, held that Vassell had done everything possible to move the matter along, only to be “held hostage by his … co-accused and the inability of the system to provide earlier dates”: Vassell , at para. 7 . In Albinowski , the Court of Appeal distinguished Vassell because none of the accused in Albinowski had been “held hostage” by their co-accused or their counsel: Albinowski , at para. 39 .

[ 23 ] I agree that the applicants in this case were not responsible for much of the delay. However, neither applicant was “held hostage” by their co-accused or their co-accused’s counsel in the early stages of this case. Neither applicant objected to the delay caused by the unavailability of counsel for their co-accused. Nor did either applicant ever ask the Crown to consider severing the charges, even when, as I will come to, the case was being significantly delayed by Cayer and Rogers. Here, as in Pauls , the applicants were content to proceed as a collective.

[ 24 ] For this reason, I accept the Crown's submission that the initial delay in scheduling caused by a co-accused in this case should be deducted communally. As such, it should be deducted as defence delay from the total delay relating to the accused responsible for the delay and as a discrete event exceptional circumstance from the net delay as it relates to the other accused: Pauls , at para. 82.

[ 25 ] However, I disagree with the amount of delay that the Crown submits should be assessed communally as it relates to the setting of a date for the JPT in the OCJ. Just as the Court of Appeal did in Albinowski with respect to delay in scheduling a preliminary hearing, I would calculate the delay in scheduling the JPT in this case by counting the time between the date the JPT could have been held, if not for the delay, and the date it was actually held. I will quantify that delay in the section that follows.

November 15, 2021, to January 21, 2022

[ 26 ] On December 2, 2021, the lawyer who had been acting for Doyle was removed as counsel of record at her request because she was taking a contract position that would not allow her to continue to act as counsel. Doyle was in attendance on that date and, although her lawyer did not think it would be helpful for her client to participate in the December 6, 2021, JPT without counsel, the court provided Doyle with the Zoom link and her disclosure, nonetheless.

[ 27 ] According to an affidavit filed on behalf of the Crown, no one attended the December 6 JPT on behalf of Doyle. As a result, the JPT was scheduled to be continued on January 21, 2022. That date was confirmed in court on December 15, 2021, and a return date of January 26, 2022, was set.

[ 28 ] However, on January 6, 2022, this case was addressed again for some reason in the OCJ. On that date, an agent appearing on behalf of lawyer, Chad Bracken, advised the court that Mr. Bracken had been “contacted” by Doyle. On Mr. Bracken’s behalf, counsel requested that the charges against Doyle be adjourned to February 3, 2022, so that Mr. Bracken could obtain disclosure and have a Crown pre-trial conference (a “CPT”).

[ 29 ] Notwithstanding the request made on Mr. Bracken's behalf on January 6, it appears that the JPT proceeded as planned on January 21, 2022. Based on the transcript of a court appearance on March 3, 2022, it does not appear that Mr. Bracken attended that pre-trial conference.

[ 30 ] The Crown submits that the period from November 15, 2021, the first date offered for the JPT by the OCJ TC, and January 21, 2022, when the second JPT was held, should be deducted as an exceptional circumstance as the delay relates to the two applicants. Although I agree with the quantification of the delay, I do not agree with the Crown's characterization of it. I would break the period down into two separate periods.

[ 31 ] I would characterize the 21-day period from November 15, 2021, the first date offered for the JPT, to December 6, 2021, when the JPT was actually scheduled, as a discrete event exceptional circumstance relating to both of the applicants. However, I would characterize the delay of 46 days between the date of the first JPT, December 6, 2021, and the date of the second JPT, January 21, 2022, as defence delay with respect to Doyle and again as a discrete event exceptional circumstance as it relates to Martin.

[ 32 ] Given that both defence delay and discrete event exceptional circumstance delay both result in deductions, the result is the same.

February 3, 2022, to April 6, 2022

[ 33 ] Shortly after the JPT concluded on January 21, 2022, the OCJ TC wrote to counsel to canvas dates for the preliminary hearing. On January 25, 2022, she offered seven days that began on October 24, 2022, and ended on November 10, 2022. Mr. McFadden advised that he was available for all of the dates offered. Counsel for Rogers, George Gray at the time, responded that he was not available on one of the October dates. As a result, the TC offered additional dates that began on October 21, 2022, and ended on November 15, 2022. Mr. Fournier advised that he was available for all of the dates offered. Mr. Gray advised that he was available on both October 21 and November 15.

[ 34 ] The case was addressed again in court on February 3, 2022. On that date, Mr. Bracken had an agent appear to speak to the charges against Doyle. Crown counsel advised the court that more than one JPT had been held, including a JPT on January 24, 2022, and that dates for a preliminary hearing were being set. [3] Mr. Bracken’s agent asked that the matter be adjourned to “one list” to allow Mr. Bracken to “get up to speed on the matter.” Accordingly, the case was adjourned to March 3, 2022.

[ 35 ] On March 3, 2022, Mr. Bracken appeared to address the charges against Doyle. The transcript shows that, although dates for the preliminary hearing had been canvassed and agreed upon by counsel for the other accused, Mr. Bracken had not been consulted on behalf of Doyle to determine his availability. The transcript also shows that, as of that date, NOE/SOIs had been filed only on behalf of Martin and Rogers. [4] The presiding judge adjourned the matter to April 7, 2022, to continue pre-setting preliminary hearing dates and for the filing of NOE/SOIs on behalf of the other two accused.

[ 36 ] The charges against Martin were not on the March 3, 2022, court docket. It appears that the case against Martin had been set to different dates because he had a bail review scheduled before the Superior Court of Justice (the “SCJ”) on February 18, 2022, and a date for the delivery of the presiding judge’s decision on March 2, 2022. On the latter date, Martin’s bail review application was dismissed, and his detention was continued.

[ 37 ] Notwithstanding the adjournment from March 3, 2022, to April 7, 2022, the charges against all the accused were addressed again for some reason on March 16, 2022. During that appearance, Mr. McFadden advised the court that they had five days scheduled for the preliminary hearing, which he wished to confirm, and that they would be scheduling an additional two days. However, Mr. Bracken had not yet been able to confirm his availability for the pre-set dates. Accordingly, the case was put over to April 6, 2022, to confirm the dates.

[ 38 ] On April 6, 2022, Mr. Bracken appeared on behalf of all counsel and confirmed the dates of October 28, and December 8, 13, 14, and 16, 2022 for the preliminary hearing. He also confirmed that counsel would be looking for two further dates, if required. Although it is less than crystal clear from the record, I conclude that the reason the preliminary hearing was not scheduled using the second set of dates offered by the TC (ending on November 15, 2022) was because Mr. Bracken was not available for all of those dates.

[ 39 ] The charges against Doyle were addressed the next day, on April 7, in Sturgeon Falls. The same dates were confirmed by Mr. Bracken at that time, who was also asked by the presiding judge to contact the other counsel to “get moving” on setting the remaining two days because they had not been responding to the OCJ TC.

[ 40 ] The Crown submits that the period from February 3, 2022, when Mr. Bracken's agent requested an adjournment, to April 6, 2022, when Mr. Bracken confirmed the dates for the preliminary hearing, should be deducted from the net delay as a discrete event exceptional circumstance caused by the presence of multiple accused. I am unable to agree.

[ 41 ] There is no evidence to which I have been taken that would support the submission that the fact that it took from February 3, 2022, to April 6, 2022, to confirm the dates for the preliminary hearing affected in any way the dates themselves. In my view, the delay must be assessed by determining whether later dates were set because of the presence of multiple accused, not whether dates were set later . Unfortunately, in this case, that is not an easy task. Only five of the necessary seven days were set when Mr. Bracken confirmed them on April 6 and 7, 2022. There were still two further, unknown, dates to be set. As I will mention again when discussing delay arising after December 2, 2022, the OCJ eventually targeted January 3 and 4, 2023, as additional dates. However, those dates ultimately proved to be unavailable to the court.

[ 42 ] Nonetheless, as I will explain later in these reasons, there is a firm basis for believing that the preliminary hearing could have finished in five days, rather than seven. On that basis, I would deduct the 36 days from November 10, 2022, the last of the first set of dates offered by the TC for the preliminary hearing, for which Mr. McFadden was available, to December 16, 2022, the last of the dates set once Mr. Bracken became involved. However, the delay must be broken down further and characterized differently for each applicant.

[ 43 ] As the delay relates to Martin, the entire 36 days is co-accused discrete exceptional circumstance delay. As the delay relates to Doyle, I have no information as to whether her counsel was available for all of the first dates offered by the TC for the preliminary hearing. However, once the presumptive ceiling is passed, the burden of proving that delay is defence delay is on the Crown: Jordan , at para. 58 . Therefore, I would characterize the 5 days of delay between November 10, 2022 (the last of the first set of dates offered), and November 15, 2022, the last of the second set of dates offered (due to Mr. Gray's unavailability) as co-accused discrete event exception circumstance delay for Doyle, and the remaining 31 days to December 16, 2022 (the last of the dates actually set to accommodate Mr. Bracken's involvement), as defence delay.

April 6, 2022, to October 21, 2022

[ 44 ] The Crown submits that the delay between April 6, 2022, the day upon which the preliminary hearing dates were confirmed, and October 21, 2022, the earliest preliminary date offered by the TC, should be characterized as a discrete event exceptional circumstance related to the backlog created by the COVID-19 pandemic and apportioned equally between the Crown and the applicants.

[ 45 ] I am not persuaded on this record that the delay was caused by the pandemic.

[ 46 ] In support of its submission, the Crown relies on the decisions of the Court of Appeal in R. v. Agpoon , 2023 ONCA 449 , 167 O.R. (3d) 721, leave to appeal refused, [2023] S.C.C.A. No. 477, and R. v. Coates , 2023 ONCA 856 , 169 O.R. (3d) 401, leave to appeal refused, [2024] S.C.C.A. No. 41. In Agpoon , the Court of Appeal provided a very helpful summary of pandemic-related events as they affected the SCJ up to 2022. However, neither case did the same with respect to the OCJ.

[ 47 ] In both cases, the Court of Appeal held that trial judges were entitled to rely on their knowledge of their court’s local circumstances and practices in determining how long a case would ordinarily take to try when determining the degree to which the COVID-19 pandemic contributed to delay: Agpoon , at para. 26 ; Coates , at para. 6 . See also R. v. Jones , 2025 ONCA 103 , 445 C.C.C. (3d) 192, at paras. 55-56 .

[ 48 ] However, I have only limited knowledge of local circumstances and practices as they relate to the OCJ. For this reason, I would require evidence to be able to determine how much delay, if any, the pandemic added to the normal times-out for cases in the OCJ as of 2022. I have no such evidence. As a result, I am not able to characterize any portion of the delay between April 6, 2022, and October 21, 2022, as a pandemic-related discrete event exceptional circumstance.

October 21, 2022, to October 28, 2022

[ 49 ] As mentioned, the first seven dates for the preliminary hearing offered by the OCJ TC began on October 24, 2022, and ended on November 10, 2022. As also mentioned, when counsel for Rogers advised the TC that he was not available on one of the October dates, the TC offered the additional dates of October 21, and November 15, 2022. Eventually, October 28, 2022, was set as the first day. December 16, 2022, was set as the fifth day.

[ 50 ] The Crown submits that the delay between the first date offered to start the preliminary hearing, October 21, 2022, and the date ultimately confirmed as the start date, October 28, 2022, is attributable to the presence of multiple accused and should be deducted as discrete event exceptional circumstances from the net delay in this case.

[ 51 ] The Crown has not taken me to any part of the record that explains why October 21 was not chosen. In the record filed on behalf of Doyle, I have located an email from Mr. Gray, who represented Rogers at the time, dated January 25, 2022, in which Mr. Gray advised that he was available on both October 21 and November 15. In the chart included in its factum, the Crown indicates that counsel for Cayer was also available on all dates offered.

[ 52 ] While I might assume that Mr. Bracken’s schedule was the reason that October 21 was not chosen, I am not prepared to make that assumption in the circumstances of this case, in which, as I will come to, the OCJ itself was responsible for changes to dates that were otherwise available to counsel.

[ 53 ] In any event, I do not agree with the Crown's submission regarding this period of time, and others, that delay should be measured by the difference in starting dates, as opposed to the difference in ending dates. As I will explain, using starting dates to measure delay is only valid when an event would have taken the equivalent number of days to complete, regardless of when it started.

[ 54 ] This issue was addressed in R. v. Grant , 2022 ONCA 337 , 413 C.C.C. (3d) 491. In that case, the accused appealed the trial judge's ruling on a s. 11 (b) application in which she attributed more than five months of delay to an adjournment request by defence counsel that caused the preliminary hearing to begin only 21 days later than originally scheduled. Relying on the Court of Appeal's decision in R. v. Picard , 2017 ONCA 692 , 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135 the accused in Grant argued that the trial judge should have attributed only the delay in starting the preliminary hearing to the defence. The Court of Appeal disagreed.

[ 55 ] In Picard , the Crown relied on the complex case exceptional circumstance to justify a 40-month net delay after the deduction of defence delay. Seven months of that delay was caused by the Crown rejecting the earliest trial dates offered because it wished to have the case prosecuted by the two Crown attorneys most familiar with it. The Court of Appeal upheld the trial judge's refusal to characterize the resulting delay as a complex case exceptional circumstance on the basis that seven months was simply too long: Picard , at para. 67 .

[ 56 ] The trial judge and the Court of Appeal in Picard used the start date of the trial, rather than the end date, to quantify the delay caused by the Crown. However, as Brown J.A. explained in Grant , there was no suggestion in Picard that the delayed start date added any additional delay to the length of the trial: Grant , at para. 39 . That is not so with respect to the preliminary hearing in this case, as I will now explain.

October 28, 2022, to December 2, 2022

[ 57 ] Just a few days before the preliminary hearing was to begin, Doyle retained John Raftery, who wrote to the Crown for disclosure and advised that he would be present in person on October 28, 2022. Unfortunately, however, the preliminary hearing did not start on October 28. On that date, three of the four accused failed to appear. The Crown had been advised just a day or so before the hearing was to start that Doyle was being housed at a custodial facility that was “in lockdown” and that she would not be brought to court as a result. Mr. Raftery wrote to the Crown to say that Doyle would be content to appear virtually. However, she did not appear even virtually. Nor did Mr. Raftery, based on the transcript.

[ 58 ] Cayer and Rogers had both been released from custody at that point. Although their lawyers were present, neither client appeared that day. Neither Mr. Gray nor Mr. Fournier were able to explain why their clients were not present. Notwithstanding their unexplained absence, no bench warrant was requested on October 28, nor was one issued by the court. Instead, the case was simply adjourned to December 2, 2022, the second date set for the preliminary hearing. [5]

[ 59 ] The Crown submits that the delay from October 28, 2022, to December 2, 2022, was attributable to the presence of multiple accused and, therefore, should be deducted from net delay as a discrete event exceptional circumstance as it relates to the applicants. For the reasons expressed above, if this delay in starting the preliminary hearing meant only that it finished the same number of days later than planned, I would agree. However, that is not what happened.

December 2, 2022, to April 5, 2023

[ 60 ] The preliminary hearing did not start on December 2, 2022. Just as had happened on October 28, Cayer and Rogers failed to appear on December 2. Again, their lawyers had no explanation for their absences. Indeed, Mr. Fournier told the court that earlier, he had sent reminders electronically to his client, which he knew his client had received and read. Mr. Gray advised the court that he had not been able to reach his client because his client’s phone appeared to be disconnected. At the request of Mr. Gray, the presiding judge removed him as counsel of record for Rogers. At the request of the Crown, the presiding judge issued warrants for the arrest of both Cayer and Rogers.

[ 61 ] Martin and Doyle were both in custody as of December 2, 2022. Although there was a delay in getting Martin to court, both he and Doyle appeared that day.

[ 62 ] As of December 2, 2022, only three further dates had been set for the preliminary hearing, namely, December 13, 14, and 16, 2022. In addition, by this time, the OCJ had targeted the dates of January 3 and 4, 2023, to complete the preliminary hearing. However, the presiding judge advised counsel that he was going to be on vacation for three months after the December 16 date. At the request of the Crown, the presiding judge therefore vacated the remaining December dates. With the input of the remaining lawyers, he then reviewed his own schedule and targeted May 29, 30, and 31, and June 1, 2, 5, 6, and 7, 2023, instead. The case was then adjourned to January 3, 2023, to confirm those dates.

[ 63 ] As it turned out, none of the targeted dates could be used. On December 5, 2022, the OCJ TC advised counsel that there were no courtrooms available on any of the targeted dates. Accordingly, the TC requested information concerning counsel’s availability for 2023, and the process of setting dates for the preliminary hearing began anew.

[ 64 ] By January 3, 2023, new dates for the preliminary hearing had been set after consultation with the Crown and counsel representing Martin, Cayer, and Doyle. Although Cayer and Rogers had not yet been arrested by January 3, the court confirmed eight new dates of April 5, 6, 11, and 12, and May 18, 19, 24, and 26, 2023, for the preliminary hearing, this time before a different OCJ judge.

[ 65 ] The Crown submits that the period from December 2, 2022, when the preliminary hearing did not commence, to April 5, 2023, when it was re-scheduled to commence, should be characterized as a discrete event exceptional circumstance due to the involvement of multiple accused and, therefore, deducted from the net delay. I am unable to agree. As I have already explained, delay in starting an event can only be used as a proxy for delay in finishing the event when it does not affect the length of the event. That is not what happened here.

[ 66 ] I accept that it is difficult to determine when the preliminary hearing likely would have finished in this case, had Cayer and Rogers not failed to appear. As of October 28, 2022, there were still two dates to be set for the preliminary hearing. However, the email correspondence filed by the applicants and the transcripts indicate that the remaining two dates were only to be set, “if necessary”. As I will explain in more detail later, the evidence at the preliminary hearing took up only four days and the preliminary hearing was completed in five.

[ 67 ] Therefore, there is a solid basis for believing that the preliminary hearing could have been concluded by December 16, 2022, had Cayer and Rogers not failed to appear on October 28, 2022. If so, the preliminary hearing would have taken 49 days, from October 28, 2022, to December 16, 2022, to complete. Instead, it took from April 5, 2023, to October 18, 2023, or 196 days, to complete. However, the failure of Cayer and Rogers to appear was not the only reason for this delay. The Crown was also responsible.

[ 68 ] In Vassell , at para. 5 , Moldaver J. wrote:

In this case, the Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise the s. 11 (b) rights of the accused persons (see, for example, R. v. Auclair , 2014 SCC 6 , [2014] 1 S.C.R. 83, and R. v. Schertzer , 2009 ONCA 742 , 248 C.C.C. (3d) 270, at para. 146 ).

[ 69 ] In Gopie , after referring to the benefits of the Crown proceeding jointly against multiple accused, Gillese J.A. wrote, at para. 171:

There may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11 (b) rights are in jeopardy. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the best interests of justice. One accused cannot be held “hostage” by his co-accused’s actions or inactions. [Citations omitted.]

[ 70 ] In my respectful view, when Cayer and Rogers failed to appear for a second time on December 2, 2022, the time had come for the Crown to reconsider proceeding against the accused jointly.

[ 71 ] On December 2, 2022, Martin and Doyle were both present and in custody. Martin had been denied bail by both the OCJ and the SCJ. There was no indication on that date if, or when, Cayer or Rogers would be arrested because neither counsel had any information as to their whereabouts. In those circumstances, in my respectful view, Crown counsel could have taken either one of two steps.

[ 72 ] First, she could have relied upon the decision in R. v. Plummer (1983), 5 C.C.C. (3d) 17 (B.C.C.A.), leave to appeal to S.C.C. refused, 17701 (October 13, 1983) and asked the judge to continue the preliminary hearing under s. 544 (absconding accused) of the Criminal Code , R.S.C. 1985, c. C-46. Alternatively, Crown counsel could have asked for a severance. In either case, the preliminary hearing could have started that day. Instead, the Crown asked that the remaining dates for the preliminary hearing be vacated.

[ 73 ] As the Crown concedes in its factum, to justify deducting delay caused by a discrete exceptional circumstance where the delay is caused by a co-accused, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; (4) the Crown could not reasonably ameliorate the delay: R. v. Tran , 2023 ONCA 532 , 429 C.C.C. (3d) 55, at para. 40 . In my view, the Crown could have reasonably ameliorated the delay after December 2, 2022, in this case.

[ 74 ] I appreciate that it later became clear that the new dates canvassed on December 2 by the presiding judge in May and June 2023 also had to be vacated when the TC advised that there was no courtroom available. However, I cannot accept that, had the preliminary hearing started on December 2, and continued on December 13, 14, and 16, the OCJ TC could not have found a courtroom to complete the preliminary inquiry for what turned out to be one additional day. The presiding judge was obviously available in May and June 2023. So, too, were counsel.

[ 75 ] As the local administrative judge (the “LAJ”) for the SCJ in North Bay since 2018, and as the Regional Senior Judge (the “RSJ”) for the Northeast Region from 2019 to 2024, I am aware that the OCJ in North Bay uses courtrooms normally allocated to the SCJ when needed for shorter matters. I am also aware that there was a temporary courtroom constructed on the second floor of the North Bay courthouse for use during a major construction project prior to the pandemic and that the OCJ eventually put that courtroom to use after the pandemic was declared. Given that knowledge, I am unable to accept that a courtroom could not have been found for the preliminary inquiry to be completed before the presiding judge retired on June 30, 2023.

[ 76 ] Regardless of how many additional days might have been necessary to do so, based on the availability of the judge who presided on December 2 and that of counsel, the preliminary hearing likely would have finished no later than June 7, 2023. Instead, it finished on October 18, 2023. In my view, the Crown, and not the co-accused, was responsible for this additional delay.

[ 77 ] Even if a courtroom could not have been found to conclude the preliminary hearing by June 7, 2023, the Crown would still be responsible for the delay, in my view. The Crown is responsible for providing adequate facilities for the effective administration of justice in the province: R. v. Perreault , 2020 ONCA 580 , 467 C.R.R. (2d) 320, at para. 5 .

[ 78 ] For these reasons, I would characterize the delay of 173 days, from December 16, 2022 (the date the preliminary hearing likely would have finished had Cayer and Rogers appeared on October 28), to June 7, 2023 (the latest date the preliminary hearing would likely have finished had it proceeded on December 2), as co-accused discrete event delay. I would not assess the remaining delay relating to the preliminary hearing as a discrete exceptional circumstance.

April 5, 2023, to October 18, 2023

[ 79 ] By April 5, 2023, Cayer had been arrested and was in custody, as was Martin. Doyle was no longer in custody. As I read the transcript of April 5, both Mr. Fournier and Mr. Raftery appeared via Zoom, as did Doyle. Although he was in custody, Cayer also failed to appear initially because of what was described as a “clerical error”. However, following a recess, Cayer appeared virtually from the Sudbury District Jail.

[ 80 ] Thus, three of the four accused were present. However, Rogers had not yet been arrested on the bench warrant issued on December 2, 2022, and was absent. Finally, on what would have been the third false start for the preliminary hearing, the Crown requested and was granted an order severing Rogers from the remaining accused.

[ 81 ] And so it was that, roughly six months after it was first scheduled to start, the preliminary hearing finally began. However, it was not much of a beginning. The court heard from only one witness, a civilian who was going to be leaving the country for several weeks that night. According to the transcript, the witness’s evidence was completed before noon. The Crown had two more witnesses available that day, both of whom were central to its case. Nonetheless, at the suggestion of the Crown, the presiding judge agreed that it would be better to start the evidence of the first witness at 9:30 a.m. the next day.

[ 82 ] When court opened at 9:30 a.m. on April 6, 2023, neither Cayer nor his counsel, Mr. Fournier, were present. The court was advised that they were en route. Doyle was also not present. However, the court was advised that she had called Mr. Raftery and was merely unsure of what courtroom to attend. As a result of the absence of these three people, the court took a recess.

[ 83 ] When court resumed, the presiding judge alluded to having to reschedule the preliminary hearing dates that had been set for May 2023. Following the evidence-in-chief of the third witness called by the Crown that day, at the suggestion of Mr. Fournier, the court excused the witness and directed her to re-attend on April 11. The presiding judge then advised counsel that, while she was available on April 11 and 12, as well as May 11, 2023, she was not available on the remaining May dates scheduled for the preliminary hearing, being May 19, 24, and 26. Therefore, those dates were vacated.

[ 84 ] On April 11, 2023, the preliminary hearing again could not start on time. Martin and Cayer had not been brought to court yet. [6] As a result of the absence of Martin and Cayer, according to the judge’s comments and those of the Crown, the hearing could not get underway until approximately noon. In the meanwhile, the court canvassed dates with counsel and confirmed that the vacated dates in May would be replaced by dates in October, namely, October 18, 19, and 20, 2023.

[ 85 ] The preliminary hearing continued on April 12, 2023. On that date, the presiding judge advised counsel that she was also not available on the next date scheduled for the preliminary hearing, being May 18, 2023. Dates in June and July were canvassed with counsel, but the only lawyer available on all of the dates canvassed was Mr. McFadden. The date of August 23 was also canvassed, but the judge was not yet sure if she was available. Therefore, the preliminary hearing was adjourned to October 18, 2023, with the proviso that it might resume, instead, on August 23, 2023, if that date was available.

[ 86 ] Indeed, August 23 was available, and the preliminary hearing resumed on that date. Unfortunately, however, it only resumed for about 15 minutes. Once again, Cayer had not been brought from the Sudbury District Jail and Martin had not yet been brought on time. On behalf of Cayer, Mr. Fournier sought and was granted permission to have the preliminary hearing proceed without waiting for Cayer to be brought the roughly one-and-one-quarter hours that it takes to get from Sudbury to North Bay.

[ 87 ] The Crown advised the court that two or three of the police officers she expected to call as witnesses were “off sick” and that they might not be returning to work at all. She also told the court that another officer was on annual leave. As a result, the Crown was only able to call one witness that day, another police officer whose evidence related only to the continuity of the evidence seized at the time of the arrest of the plaintiffs.

[ 88 ] The preliminary hearing continued on October 18, 2023, for what was originally to be day five of seven, but turned out to be the final day. At the opening of court, the Crown advised that she was unable to call the two police officers she had referred to on August 23 because they were still unavailable. Therefore, she asked that the court proceed to hear submissions on committal, which it did. On behalf of Martin, Mr. McFadden submitted that there was insufficient evidence of identity to commit his client for trial. On behalf of their clients, Mr. Raftery and Mr. Fournier conceded committal. Following submissions, the presiding judge reserved her decision and set the date of December 15, 2023, as the date for the delivery thereof.

[ 89 ] The Crown submits that the 355 days of delay from October 28, 2022, the initial commencement date of the preliminary hearing, to October 18, 2023, the date of the conclusion of the preliminary hearing, should be deducted from the net delay due to discrete event exceptional circumstances.

[ 90 ] For the reasons expressed earlier relating to the December 2, 2022, to April 5, 2023, period, I do not accept this submission. Only the delay from December 16, 2022, to June 7, 2023, should be deducted from net delay as co-accused discrete event delay.

October 18, 2023, to December 15, 2023

[ 91 ] The Crown has not suggested that the delay resulting from the presiding judge’s deliberations from the end of the preliminary hearing on October 18, 2023, to the delivery of her decision on December 15, 2023, should be deducted from the net delay. I agree. As the Crown correctly concedes, deliberation time relating to committal is already accounted for in the Jordan ceiling: R. v. Mengistu , 2024 ONCA 575 , at paras. 27-35 .

[ 92 ] However, the Crown submits that there is evidence relating to the delay between October 18, 2023, and December 15, 2023, that supports its position that it was proactive throughout this prosecution. In particular, the Crown relies on the fact that the Crown attorney in attendance on October 18, 2023, urged the presiding judge to notify counsel in the event that she arrived at her decision earlier than the return date of December 15, 2023.

[ 93 ] Given my view of what the Crown ought to have done on December 2, 2022, this argument does not have much, if any, force. If it can be said that the Crown acted proactively after the presiding judge reserved her decision, it must also be said that it was too little, too late.

December 15, 2023, to December 5, 2025

[ 94 ] On December 15, 2023, the presiding judge delivered her decision, committing all three accused (Martin, Doyle, and Cayer) to stand trial in the SCJ. Mr. McFadden wrote the same day to the SCJ TC to request a date for a JPT. As he had to know, however, the Indictment had not yet even been filed.

[ 95 ] On January 2, 2024, the SCJ TC responded to Mr. McFadden’s message by offering dates of February 21, 22, 26, and 27, and March 18, 2024. Mr. Raftery was available on February 21. According to the factums filed on behalf of both Martin and the Crown, Mr. McFadden was also available. Mr. Fournier responded that he was only available on March 18. According to the Crown, however, Mr. McFadden was not available on March 18.

[ 96 ] Thus, on January 17, 2024, the TC offered further dates in February and March 2024. Not all the lawyers had responded to the TC by the date of the criminal assignment court on January 19, 2024, so the matter was adjourned on that date to the February 16, 2024, assignment court to continue canvassing dates. On January 22, 2024, the TC set March 20, 2024, as the date for the JPT, which was confirmed on February 16.

[ 97 ] The Crown submits that the delay of 28 days from February 21, 2024, being the first date offered by the TC for a JPT in the SCJ, to March 20, 2024, being the first date upon which all counsel were available, should be deducted as a discrete event exceptional circumstance as it relates to the applicants. I agree that this delay should be deducted. However, I would characterize it somewhat differently as it relates to Martin.

[ 98 ] Unlike what happened in the OCJ with respect to the preliminary hearing, the Crown cannot be faulted for any of the delay regarding the scheduling of the JPT in the SCJ. Nor is there any indication that either applicant sought to go it alone after the preliminary hearing. From all appearances, the applicants were content to proceed as a collective in this court. Neither applicant indicated in their JPT form that they contemplated an application to sever themselves from the rest of the accused individuals. Indeed, as I indicated earlier in these reasons, the Crown advised at the SCJ JPT that it would seek to rejoin the charges against Rogers with the charges against the other accused. Counsel for Martin, Doyle, and Cayer all indicated they would agree to the re-joinder.

[ 99 ] Given the position of the applicants, therefore, I would deduct the delay in scheduling the SCJ JPT, as suggested by the Crown. I would deduct the 28 days from February 21 to March 20 as discrete event co-accused delay as it relates to Doyle because Mr. Raftery was available on both February 21 and March 18, 2024. However, I would only deduct 26 days as discrete event co-accused delay as it relates to Martin because Mr. McFadden was not available on March 18. I would deduct the two days from March 18 to March 20, 2024, as defence delay.

[ 100 ] Although neither applicant indicated at the JPT that they intended to apply for a severance, they did indicate that they intended to bring s. 11 (b) applications. The JPT judge made an endorsement to that effect and adjourned the case to the assignment court on March 22, 2024. On that date, October 15, 2024, was set for the s. 11 (b) applications. However, there were no dates available for trial at that time. Accordingly, I adjourned the case to an assignment court to be held on June 7, 2024, in the hope that the court might have trial dates to offer at that time.

[ 101 ] Notwithstanding my advice to counsel on March 22, 2024, that the court had no dates available for trial, Mr. McFadden repeatedly wrote to the trial coordinator in April, May, and June asking for trial dates. Not surprisingly, the trial coordinator did not respond, other than to confirm the advice of other counsel to Mr. McFadden that the case had been adjourned to June 7 to check on the availability of trial dates.

[ 102 ] By June 7, 2024, the court was able to offer trial dates, but not until late in 2025. Accordingly, on that date, the trial was scheduled to begin on November 24, 2025. As I indicated at the beginning of these reasons, it is expected to end on December 5, 2025.

[ 103 ] The Crown submits that the 623 days of delay between March 22, 2024, when the s. 11 (b) applications were scheduled, and December 5, 2025, when the trial is likely to finish, should be apportioned equally between the Crown and the applicants as a discrete event exceptional circumstance caused by the COVID-19 pandemic. Unlike the effect of the pandemic on the OCJ, as the LAJ and former RSJ for the SCJ, I need no evidence to deal with this argument. As I will explain, the delay between March 22, 2024, and December 5, 2025, was not caused solely by the pandemic. It was caused, in large measure, by a shortage of judicial resources.

[ 104 ] The Northeast Region consists of eight SCJ court sites, with several single-judge sites. North Bay draws on two of those sites, Haileybury and Parry Sound, for assistance. Until 2022, our complement of full-time judges in the Northeast Region was 14. An addition to our complement was created in approximately October 2022. Through a series of transfers, the vacancy was moved to Parry Sound. Unfortunately, however, the vacancy went unfilled until October 2024. While there is no doubt that our site built up a backlog of cases following the onset of the pandemic in 2020, in light of this unfilled vacancy, it cannot be said that the backlog continued to operate as the sole cause of delay once the additional judicial position was created.

[ 105 ] To make matters worse, our region has experienced a disproportionate increase in criminal cases since the pandemic was declared in 2020. Between 2019 and 2020, there was a drop in the number of new criminal cases in the SCJ in the Northeast Region. However, between 2020 and 2023, the number of new criminal cases commenced in the SCJ in the Northeast region increased by approximately 46 percent: see our court's five-year report entitled Ontario Superior Court of Justice: Modernizing The Justice System (2019-2023 Report), online (pdf): https://www.ontariocourts.ca/scj/files/annualreport/2019-2023-EN.pdf, at p. 90.

[ 106 ] The steady increase in crime in our region is not a discrete exceptional circumstance. To qualify as such, the circumstance must be both reasonably unforeseeable or unavoidable and not reasonably remediated: Jordan , at para. 69 . As I stated earlier, the Crown is responsible for systemic delay. Therefore, the Crown bares responsibility for the failure to fill a much-needed judicial vacancy in a region suffering from a gradual, but alarming, increase in crime.

[ 107 ] For these reasons, I am unable to accept the Crown’s submission that 50 percent of the delay between March 22, 2024, and December 5, 2025, should be apportioned to the applicants as a discrete event exceptional circumstance due to the pandemic. Nonetheless, I am prepared to accept that it continues to have some effect that would be present even if the addition to our complement had been filled earlier.

[ 108 ] The apportionment of delay between parties is not an exact science. Rather, the court must apportion delay in a way that is fair and reasonable: R. v. Boulanger , 2022 SCC 2 , [2022] 1 S.C.R. 9, at para. 10 . At most, I would attribute 50 percent of the delay in getting to trial in our court as of 2024 as a discrete event exceptional circumstance in recognition of the fact that some of the pandemic-related backlog has remained as a so-called “trickle effect”. This amounts to approximately 312 days of delay. Apportioning this equally between the Crown and the applicants results in a deduction of 156 days of delay from net delay as a discrete event exceptional circumstance.

CONCLUSION

[ 109 ] For the foregoing reasons, I would deduct the following periods of delay from either the total delay or the net delay, as the nature of the delay requires:

(1) From total delay, as defence delay:

a. As it relates to Martin:

i. 2 days from March 18, 2024, the second date offered for the SCJ JPT, to March 20, 2024, the date eventually set for the JPT, due to Mr. McFadden’s unavailability on March 18, 2024

b. As it relates to Doyle:

i. 46 days from December 6, 2021, the date of the first OCJ JPT, to January 21, 2022, the date of the second OCT JPT, due to Doyle’s change of counsel;

ii. 21 days from November 15, 2022, the likely end date of the first set of dates offered for the preliminary hearing, to December 16, 2022, the likely end date for the preliminary hearing on the dates eventually set, due to Mr. Bracken’s unavailability;

(2) From net delay, as discrete event exceptional circumstances:

a. As it relates to Martin:

i. 46 days from December 6, 2021, the date of the first OCJ JPT, to January 21, 2022, the date of the second OCJ JPT, due to Doyle’s change of counsel and/or the failure of Doyle to attend the first JPT;

ii. 36 days from November 10, 2022, when the preliminary hearing would have finished based on the first set of dates offered (with respect to which Mr. Gray was not available), to December 16, 2022, when the preliminary hearing would likely have finished (based on the dates set), due to Mr. Bracken’s unavailability;

iii. 26 days from February 21, 2024, the first date offered for the SCJ JPT (upon which Mr. Fournier was not available), to March 18, 2024, the only date upon which Mr. McFadden was not available among the first dates offered (and upon which Mr. Fournier was available);

b. As it relates to Doyle:

i. 5 days from November 10, 2022, when the preliminary hearing would have finished based on the first set of dates offered (with respect to which Mr. Gray was not available), to November 15, 2022, when the preliminary hearing would likely have finished based on the second set of dates offered, with respect to which Mr. Bracken was not available;

ii. 28 days from February 21, 2024, the first date offered for the SCJ JPT, to March 20, 2024, the date ultimately set for the JPT, due to Mr. Fournier’s unavailability;

iii. 26 days from February 21, 2024, the first date offered for the JPT, to March 18, 2024, the only date upon which Mr. McFadden was not available among the first dates and upon which Mr. Fournier was available;

c. As it relates to both Martin and Doyle:

i. 21 days, from November 15, 2021, the date first offered for the OCJ JPT, to December 6, 2021, the date the first OCJ JPT was held, due to Mr. Fournier’s unavailability;

ii. 173 days from December 16, 2022, the date the preliminary hearing would likely have ended had it gone ahead on December 2, 2022, to June 7, 2023, the latest date upon which the preliminary hearing would likely have finished, providing a courtroom was made available; and

iii. 156 days, representing equal apportionment between the parties of 50 percent of the 623 days of delay between March 22, 2023, the date of the first assignment court following the SCJ JPT, and December 5, 2025, the likely end date of the trial, as lingering delay related to the COVID-19 pandemic.

[ 110 ] Regardless of how the delay is characterized, the overall delay of 460 days is the same with respect to each applicant. Deducting this delay from the total delay of 1,603 days leaves resulting delay of 1,143 days, or roughly 37.5 months. This still exceeds the presumptive ceiling by seven and one-half months for both applicants.

[ 111 ] Therefore, the applications must be allowed, and the charges stayed against each of the applicants.

M.G. Ellies J. Released: May 7, 2025

COURT FILE NO.: CR-24-004 DATE: 2025/05/07 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – NICHOLAS AARON MARTIN and MACKENZIE DOYLE Defendants REASONS FOR decision ON APPLICATION FOR A STAY OF PROCEEDINGS M.G. Ellies J. Released: May 7 , 2025

[1] The overall time frame at issue in this case includes a leap year (2024), in which there is an extra day. Therefore, in order to convert days to months, I have taken the total number of days in four years, including one leap year (1,461), and divided that number by 48 months. In this way, I have arrived at a divisor of 30.44. The difference, if any, in using this number as opposed to the divisor for periods not including a leap year (30.42) is very small. However, even a day's delay beyond what is presumptively unreasonable can result in a stay: R. v. Vrbanic , 2025 ONCA 151 , appeal as of right filed, [2025] S.C.C.A. No. 78 at para. 63.

[2] In affirming the decision in Pauls , the Supreme Court wrote in Yusuf , at para. 4 :

In doing so, we have chosen to leave for another day various legal issues that arise from this Court’s decisions in R. v. Jordan … and R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659, including whether and in what circumstances multiple accused should be treated communally as opposed to individually when assessing defence delay under s. 11 ( b ); whether discrete events as defined in Jordan attributable to a particular accused should be deducted only from the accused responsible for those events or be deducted communally from the co‑accused as well; and whether a s. 11 ( b ) application can be brought post‑conviction and if so, whether a remedy other than a stay of proceedings is available. [Citation omitted.]

[3] This is not reflected in the factums filed by any of the parties.

[4] Both the Crown and Mr. McFadden assert that the only NOE/SOI filed was on behalf of Martin.

[5] On October 7, 2022, after the original dates for the preliminary hearing had been confirmed, the OCJ TC wrote to counsel to advise them that the second date set for the preliminary hearing, December 8, 2022, was no longer available and that December 13, 2022, would be the second day, instead. Notwithstanding the TC’s advice, the judge presiding on October 28, 2022, adjourned the preliminary hearing to December 2, rather than December 13, apparently after having had a discussion over the recess with the TC. That day turned out not to be available, however, as the TC advised counsel by email later on October 28. Instead, she offered November 28, 2022, as the start date for the preliminary hearing. Counsel for Rogers was not available on that date. Therefore, the TC offered December 12. However, counsel for Cayer was not available on that date. The TC then offered January 9, 2023, but Mr. McFadden was the only counsel available that day. Eventually, the TC advised that the preliminary hearing would proceed on December 2, 2022, as originally planned.

[6] There was an indication that Martin had refused to attend, but that was disputed by Mr. McFadden.