Ontario Superior Court of Justice

Court File No.: CR-24-1541
Date: 2025-07-16

BETWEEN:
His Majesty the King, Respondent
– and –
Chad Rolling, Applicant

Appearances:
S. Baker and A. Jay, for the Respondent
A. Thakore, for the Applicant

Heard at Sudbury: June 24, 2025

Decision on Delay Application
A.D. Kurke

Overview

[1] The applicant is charged on an indictment with multiple counts of breaching bail, human trafficking, sexual assault, and single counts of assault, uttering threats, robbery, break and enter, making a surreptitious recording, and making obscene material. He applies for relief on the basis that his s. 11(b) Charter right has been breached in this proceeding and he is therefore entitled to have these charges stayed. A request for a judge’s order to have the in-custody applicant brought to court for the hearing of this application was made too late to allow the applicant’s attendance. Counsel for the applicant waived the applicant’s right to be present at the hearing.

[2] The indictment represents a consolidation of charges from two informations, one sworn on December 6, 2022 and involving complainant SCT, and the other sworn on January 19, 2023 and involving complainant AEW. A preliminary inquiry was held in the Ontario Court on two dates in March and one in April 2024. The case is set for a 10-day non-jury trial in this court beginning October 20, 2025. By the end of trial, the case involving SCT will have taken some 34 months and 26 days to completion, and the case involving AEW will have taken 33 months and 11 days. Both of those periods are above the 30-month ceiling for delay dictated in the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27. But from those periods must be deducted periods of defence delay. Once that operation is carried out, the delay does not exceed the ceiling. As I am also not able to conclude that there has been a s. 11(b) breach below that ceiling, the application is dismissed.

[3] The following are my reasons for dismissing the s. 11(b) application.

Section 11(b) of the Charter

Overview

[4] Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “[a]ny person charged with an offence has the right to be tried within a reasonable time.”

[5] The decision in R. v. Jordan, 2016 SCC 27 provides a framework for the determination of unreasonable delay in criminal proceedings. Trials of matters in the Superior Court must be completed within 30 months from the date the originating information is sworn. If the net delay exceeds the ceiling of 30 months, then the delay is presumptively unreasonable, and the Crown has the burden of showing that exceptional circumstances justified the delay. If it cannot do so, a stay of proceedings will follow. Below the ceiling, the defence has the burden of showing, among other things, that the delay was unreasonable, even though the ceiling was not surpassed: Jordan, at paras. 5, 46-49, 68; R. v. McManus, 2017 ONCA 188, paras. 21-22.

[6] Where various charges are laid against an accused at various times, and joined, the delay clock will run from the date the information was laid for each set of charges. However, where one set of charges is laid and then more follow which are absorbed into the trial schedule for the first set, the date when the bulk of charges was laid may be appropriately looked to as the starting point for the Jordan calculation: R. v. Anderson, 2025 ONCA 172, para. 6. In addition, periods of delay can be apportioned among Crown, defence, and court where the lack of availability of the various participants has contributed to delay: R. v. Boulanger, 2022 SCC 2, paras. 7-10; R. v. Hanan, 2023 SCC 12, para. 9.

[7] Periods of defence delay are subtracted from the total. These include periods of time that are clearly and unequivocally waived by an accused and periods of delay caused by the conduct of the defence, except for delay caused by legitimate efforts to respond to the charges, such as preparation time. Defence-caused delay includes situations where the acts or inaction of an accused either directly caused the delay or are shown to be markedly inefficient or a deliberate and calculated tactic employed by an accused to delay the trial. Included in defence-caused delay are situations where the court and Crown are prepared to proceed, but the defence is not: Jordan, at paras. 60-66; R. v. Cody, 2017 SCC 31, paras. 28-36; R. v. Williamson, 2016 SCC 28, paras. 21-22; R. v. Gopie, 2017 ONCA 728, paras. 147-157. Unwillingness by defence counsel to accept a future date that is available to Crown and court creates delay attributable to the defence: R. v. Albinowski, 2018 ONCA 1084, paras. 28-33.

[8] In R. v. Coulter, 2016 ONCA 704, paras. 34-41, the Court of Appeal summarized the steps for determining a s. 11(b) application. Those steps are as follows where the application is based on delay exceeding 30 months:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;
2. Subtract defence delay from the total delay, which results in the "net delay";
3. Compare the net delay to the presumptive ceiling;
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
5. Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached; and
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

The Passage of This Case Through the System

Looking for a Lawyer

[9] When the applicant was alleged to have committed these offences, he was already on a release order with two sureties. Following the swearing of the initial information on December 6, 2022, the applicant was arrested and attended bail court. His bail hearings took place between January 20, 2023 and January 25, 2023, with a detention decision given on the last date.

[10] From that point the matter stalled. The applicant was focused only on seeking release through a bail review, and not on advancing his case to completion. The case was in video remand court on February 9 and February 23, with the applicant indicating that Mr. Filiberto was counsel. He repeated the claim in court on March 30, 2023. Mr. Filiberto was never himself present in court. On April 13, 2023, the applicant told the court that his lawyer had COVID and requested an earlier bail review than the one scheduled for May 23; that was his sole interest. Crown counsel asked for a remand to April 27 so that counsel could attend, and the matter could be moved long towards preliminary inquiry or trial. The Crown contacted Mr. Filiberto’s office and confirmed that Mr. Filiberto had only been retained for a bail review.

[11] On April 27, 2023 the applicant asked for his matter to return to court June 29, so that he would have time to get money together to retain counsel after his release on bail review. He then followed the advice of the presiding judge and asked the matter to come back to court June 1 instead, in case he was still in custody. The Crown, having found out that Mr. Filiberto was only representing the applicant on the bail review, had the matter brought forward to May 4 and had a judicial pre-trial (“JPT”) for the self-representing applicant scheduled for June 30 (the earliest date for such a JPT). The applicant would have preferred to wait to retain counsel first, as he anticipated release at his bail review. In the event, he appears to have been unsuccessful.

[12] On the June 1, 2023 date for caretaking the applicant’s matters, the court booked a pre-trial with the applicant’s apparent new counsel, Mr. D. Michel, who was not present. Even in Mr. Michel’s absence a JPT with counsel was able to be set for August 1 because it was known that Mr. Michel had other JPTs that day. On August 3, after the JPT, the applicant’s cases were adjourned a week to pre-set his matters for hearings.

[13] The Crown submits that it is clear from the record that in the early stages of the passage of the applicant’s matters through the Ontario Court of Justice (“OCJ”), the Crown and the court were prepared to move forward, but the applicant was not. Accordingly, delay up through June 2023 must be attributed to the applicant. The defence counters that the Crown had discovered fairly early on that Mr. Filiberto was only acting for the applicant on his bail review. Had the Crown notified the court of this fact, the applicant would have learned it also and could have taken steps earlier to secure counsel for preliminary inquiry and/or trial.

[14] I agree with the Crown and cannot accept the submission of the defence. The defence argument is premised on the applicant remaining in custody and being ignorant of the true facts of his legal representation. On this argument, the applicant submitted to remand courts that Mr. Filiberto was his trial counsel because he had no means of discovering the truth, that his counsel was only assisting him on his bail review. But there is no evidence before the court to support the claim that the applicant was ignorant of the true state of affairs. I find, rather, that the applicant was focused during the first several months of the passage of this case through the OCJ only on his prospects for bail, and deliberately chose to take no steps to advance the case to conclusion.

[15] Defence further argues that the time that it took the applicant to secure counsel should be considered a time “already accounted for” in the procedural requirements that make up the 30-month ceiling of delay in a case: Cody, at paras. 28-29. I respectfully do not agree. I find that in this case, there is no evidence to support the proposition that the applicant was occupied during this time in securing counsel for his preliminary inquiry or trial. To the contrary. He chose only to focus on his bail review and showed indifference to the delay in the case to trial: Cody, at para. 32. But even were it otherwise, my view is that findings that this or that conduct by an accused are already inherent in the delay of a case should be made carefully and sparingly. It must not be forgotten that delay in a case must land on one side of the ledger or the other. Every month not deducted for defence delay on actions undertaken or not undertaken by an accused is a month closer to the Jordan ceiling and a finding of unreasonable delay. Too little caution in this exercise encourages the beating of shields into swords.

[16] The period from January 25, 2023 to June 1, 2023, a period of four months and a week, was lost because the applicant’s focus was on bail review and not on moving his matters forward. It was only when Mr. Michel was retained that a JPT was able to be set. That period of four months and one week must be attributed to the applicant.

Refused Dates for Hearing

[17] After the JPT, the matter found itself before the court on August 17, 2023 to schedule hearings. The applicant elected trial in the OCJ on all of his matters. On one set of charges, four days of trial were set in the OCJ from March 11, 2024 onwards, with a confirmation hearing on January 16, 2024. The other set of charges, for which the court estimated that seven days were required for trial, was adjourned to August 24. On August 24, seven days of trial were confirmed for the second matter, commencing March 25, 2024 and continuing up through May 6, 2024, with a confirmation hearing scheduled for January 30, 2024.

[18] Attached to the trial scheduling form prepared by the OCJ trial coordinator on this matter are email exchanges among court, counsel, and police. These exchanges in fact confirm that the court had offered dates for hearing in September, October, November, and December 2023 and earlier dates in March 2024, but that applicant’s counsel had declined all those dates, because he was not available until March 25, 2024 at the earliest. The email exchange makes clear that police witnesses (and therefore at least in this jurisdiction the Crown) were available as early as October 16, 2023.

[19] Because the Crown was prepared to accept dates offered by the court commencing in October 2023, it argues that the defence refusal of the earlier dates was responsible for five- and one-half months of delay between October 16, 2023 and March 25, 2024. The defence argues that this period of delay should not be attributed to the applicant on the principal in R. v. Godin, 2009 SCC 26, para. 23, that “defence counsel should not be required to hold themselves in a state of perpetual availability.”

[20] That oft-cited quotation requires a context. The Supreme Court of Canada in the same paragraph of Godin went on to elaborate that it would be unfair to attribute to an accused the delay caused by rejecting an earlier date offered for trial “in circumstances where the Crown is responsible for the case having to be rescheduled,” as was the circumstance in Godin, but not in this case. It is trite law that agreement by an accused to a future court date, if earlier dates are available, will in most circumstances result in the attribution of the delay accruing therefrom to the accused, and can constitute an implicit waiver of the delay: see, e.g., R. v. J.P., 2021 ONCA 6777, paras. 8-9; R. v. Smith, para. 38. I do not see Jordan as significantly altering that common-sense proposition.

[21] The defence further argues that the period of delay in these circumstances should be apportioned between Crown and defence, on the principal in Boulanger and Hanan. In my view, this is not delay that should be apportioned between Crown and defence. If the defence had not clearly rejected any date earlier than the end of March 2024, the case would have come to this court and been scheduled much earlier for trial. Such a blanket rejection of dates flies in the face of the proactive trial-scheduling culture demanded in Jordan and Cody.

[22] The delay between October 16, 2023 and March 25, 2024, a period of some five and one half months, is attributable to the applicant.

A Breach Below the Ceiling?

[23] The defence further argues that given judicial understaffing in the Superior Court in Sudbury, with matters being set down for trial far in the future, delays caused by the defence in the OCJ were overtaken by the unavailability of trial dates in the Superior Court and resulted in fact in no real delay.

[24] While outwardly attractive, this position involves pure speculation. It is true that once the case had been committed to trial in the Superior Court in April 2024, and a new counsel came on, the matter proceeded to JPT and to assignment court within a few months. After that, trial dates of October 20-24, 2025 were finally set on October 1, 2024. However, the defence argues that the delay in the Superior Court of more than a year to trial is so excessive as to require the finding of a s. 11(b) violation even if the delay does not exceed the ceiling.

[25] First though, this position does not take into account what trial dates in the Superior Court might have been available for this case if it had been committed to trial five or more months earlier than it was, had the October 2023 dates not been rejected by the applicant. I note that the actual number of days required for the hearing was made even shorter by the applicant’s late re-election to a preliminary inquiry in the OCJ and a trial in this court.

[26] Second, this argument ignores the reality that the ceiling for delay to trial in the Superior Court is 30 months under the Jordan regime, even for cases that proceed by way of a direct indictment, and that therefore bypass delay caused by time-consuming procedures in the OCJ, such as preliminary inquiry: R. v. Bulhosen, 2019 ONCA 600. In any event, I cannot find that the case from initial charging through JPT and preliminary inquiry in the OCJ, to JPT and trial in the Superior Court, will have taken markedly longer than it reasonably should have, a prerequisite for staying charges when the delay to trial falls below the ceiling: see R. v. S.A., 2024 ONCA 4423, paras. 43-44. As noted in Jordan, at para. 48, findings of a s. 11(b) breach in such circumstances will be rare, and certainly such a finding is not appropriate here.

[27] The request for a finding of s. 11(b) breach below the ceiling is denied.

Conclusion

[28] By the end of trial, the longer-running aspects of this case that were charged on the first information will have taken some 35 months to completion. When 9 months and three weeks of delay – the delay attributable to the defence – is subtracted from that total, delay of 25 months and one week remains, which is below the 30-month Jordan ceiling.

[29] In the circumstances of this case, I do not find that the total delay to trial was markedly longer than it reasonably should have been.

[30] Accordingly, there has been no violation of the applicant’s s. 11(b) right and the application is dismissed.

A.D. Kurke
Released: July 16, 2025