Court File and Parties

Court File No.: CR-24-30000414-0000

Date: August 29, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

Brittany Day, Applicant

Counsel:

Lisa Will, for the Crown/Respondent

Chris Rudnicki, for the Applicant

Heard: July 29 and August 1, 2025

Justice C. Rhinelander

Overview

[1] Brittany Day was arrested and charged on May 5, 2023, with attempt murder, aggravated assault, assault with a weapon x2, and possession of a weapon for a dangerous purpose arising from an incident that occurred on April 16, 2023. The information was sworn on April 17, 2023, and the Indictment was signed on June 19, 2024. The trial was scheduled to commence Tuesday, August 5, 2025, and to conclude by August 13, 2025. This was the second trial date. The first trial scheduled for April 7, 2025, was unable to be reached due to a lack of judicial resources.

[2] Ms. Day applied for a stay of proceedings based on an alleged violation of her s.11(b) Charter right to a trial within a reasonable time. Pursuant to her notice of application, there were no exceptional circumstances and no defence delay or waiver.

[3] Without apportioning any delays, the total amount of time elapsed from the date the information was sworn to the anticipated conclusion of the trial is 27 months and 28 days. This period did not exceed the 30-month presumptive ceiling for trials in the Superior Court of Justice as set out in R. v. Jordan, 2016 SCC 27. Therefore, the below ceiling test applied, and Ms. Day was required to establish that (i) the defence took meaningful steps to expedite proceedings, and (ii) the case took markedly longer than it reasonably should have to get to trial.

[4] I dismissed the application on August 1, 2025, with reasons to follow. These are my reasons.

Issue

[5] Was Ms. Day's right to have a trial within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms violated?

Background

[6] On April 16, 2023, the Applicant was drinking and smoking cannabis with two individuals, Mr. Arthur Burt and Mr. Jeremiah Henry-Hunter, at her apartment. At some point, an altercation occurred between the Applicant and Mr. Burt resulting in Mr. Burt being stabbed by the Applicant.

[7] Mr. Henry-Hunter had gone to the bathroom and was not present at that time but heard a commotion. Upon exiting he saw Mr. Burt holding his chest saying they had to leave. A call to 911 was made from Mr. Henry-Hunter's phone.

[8] A neighbour helped Mr. Burt while waiting for medical assistance. Mr. Burt was transported to the hospital. Police interviewed him but he did not remember what happened or who was responsible for stabbing him.

[9] CCTV security footage captured events outside of the Applicant's apartment, and Mr. Henry-Hunter was identified. He provided information to police as set out above.

[10] A warrant was issued for the Applicant. She retained counsel who arranged for her surrender on Friday, May 5, 2023, whereupon she was arrested and held for a bail hearing. At the time of her arrest, the Applicant was before the court on three other separate sets of charges.

[11] Counsel sent materials to the crown in advance of her surrender to try and secure a consent release. In his correspondence, he advised he would consent to the revocation of the Applicant's prior releases. On the day of her arrest, the crown advised they were contesting the Applicant's release and seeking to cancel her prior releases. Counsel and the proposed surety were available and prepared to run the bail hearing that day. The matter was unable to be reached due to an overloaded bail court. The matter was adjourned as there were six matters prioritized ahead of the Applicant. Counsel advised the court delay was a concern to his client.

[12] On Monday, May 8, 2023, counsel and the surety appeared, and the hearing commenced. The crown consented to the Applicant's release after hearing testimony from the surety.

[13] Upon her release, the matter was adjourned several times pending the receipt of disclosure. Disclosure was made available to the defence on June 16 and 22, 2023.

[14] On June 28, 2023, defence confirmed receiving disclosure and requested the matter be adjourned to July 19, 2023, to review disclosure and arrange a crown pretrial.

[15] On July 19, 2023, the matter was further adjourned to August 16, 2023. The defence informed the court that statements for the two key civilian witnesses were outstanding. A crown pretrial was held on August 8, 2023, and the assigned crown (not Ms. Will) advised they would not be proceeding on the attempt murder charge. Counsel for the Applicant raised the issue of the two outstanding civilian statements. The earlier disclosure package(s) were resent, and the Applicant confirmed receipt of the statement of Mr. Henry-Hunter. However, a statement from Mr. Burt remained outstanding.

[16] On the August 16, 2023, court appearance, the attempt murder charge was withdrawn at the request of the crown. The Applicant requested the matter be adjourned pending receipt of Mr. Burt's (the complainant) statement.

[17] The matter was further adjourned on two separate occasions until November 8, 2023. On that date, the crown advised counsel that Mr. Burt had refused to provide a statement. The crown agreed to assess its case for a reasonable prospect of conviction. No preliminary inquiry or trial dates were set at this time. The matter was adjourned to December 13, 2023.

[18] The assigned crown was not able to provide a response before that date as she was prosecuting a homicide trial that exceeded the anticipated trial time. The Applicant requested her matter be adjourned to February 7, 2024.

[19] While this matter proceeded through the Ontario Court of Justice, the Applicant's other sets of charges (assault/forcible confinement; mischief/FTC; and assault with a weapon x3) followed along to the same dates. Counsel was working towards obtaining consent from the crown for a possible diversion of the other charges to the Community Council operated by the Aboriginal Legal Services.

[20] On January 16, 2024, the crown informed counsel they would proceed on the remaining charges of aggravated assault, assault with a weapon x2, and possession of a weapon for a dangerous purpose.

[21] A judicial pretrial was immediately scheduled for February 7, 2024, the first date offered. The preliminary inquiry was held on May 30 and 31, 2024, also the first dates offered. Committal was not contested, and the Applicant was remanded to the Superior Court of Justice assignment court for June 25, 2024.

[22] On June 25, 2024, an associate attended on behalf of counsel for the Applicant. He requested the matter be adjourned for a month for the purpose of having resolution discussions and booking a judicial pretrial in the interim "if it was necessary". The crown, Ms. Garrity, advised judicial pretrial dates were available starting the week of July 22, 2024, and suggested the matter be adjourned to July 30, 2024, in anticipation that a judicial pretrial would be conducted in the interim.

[23] On July 26, 2024, Ms. Garrity wrote to counsel to follow up on the comments from the last court appearance as a judicial pretrial had not been scheduled. She inquired if one was necessary based on comments from the last appearance, and if so, provided an updated list of available dates. The first date offered was September 13, 2024, which was accepted.

[24] The judicial pretrial was held on that date. The first available trial date for seven days with a jury was April 7 – 15, 2025. Both parties were available, and the trial was scheduled.

[25] Counsel had requested information about Mr. Burt and Mr. Henry-Hunter including copies of any criminal records, outstanding charges, and disclosure of police investigations. The crown position was these materials required a third-party records application. The disclosure motion was scheduled for February 6, 2025, the first available date. The scheduling of this motion had no impact on the scheduling of the trial date.

[26] The disclosure motion was heard on February 6, 2025. Pinto, J. released his decision on April 2, 2025. Based on the ruling, the crown provided additional materials to the Applicant.

[27] On April 7, 2025, the parties attended for trial. No judge was available on that date. The parties attended on April 8 and 9, and the situation had not changed. The matter was unable to be reached as scheduled due to a lack of judicial resources. The Applicant was remanded to April 15, 2025, to set a new date.

[28] On April 10, 2025, the crown contacted counsel to inquire if he had availability for a summer trial due to the matter not having been reached. Counsel responded that he could make himself available in August. He also informed Ms. Garrity that he was seeking funding from Legal Aid Ontario to obtain transcripts and depending on the dates offered by the court, his client may seek a remedy for delay in the matter.

[29] On April 15, 2025, the matter was remanded to the "Jordan" court on April 24, 2025.

[30] In the interim, the parties agreed to a new trial date. The first available date offered by the court was May 26, 2025. The first dates the crown and defence were available were July 7, 2025, and August 5, 2025, respectively.

[31] Ms. Will was assigned the file to accommodate the summer trial date. She reviewed the file and the disclosure order of Pinto, J. Thereafter, she made inquiries of the Toronto Police Service, resulting in a further 11 occurrences being disclosed - 7 of the occurrences related to Mr. Burt and 4 to Mr. Henry-Hunter. These additional materials were provided to the Applicant on June 25, 2025, two months after the first trial date. The total number of pages of occurrence reports, including the additional materials, were 46 and 74 respectively.

[32] Counsel confirmed he would be filing a section 11(b) application on behalf of his client. Due to scheduling difficulties, it was unable to be heard until July 29, 2025, a week prior to trial.

Legal Framework

[34] The parties were agreed on the applicable legislation and the law to be applied.

[35] Jurisprudence makes clear that the ceilings set out in R. v. Jordan, 2016 SCC 27, are intended to provide "meaningful direction" to those working within the administration of justice about their s.11(b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108. R. v. S.A., 2024 ONCA 565 para. 22.

[36] In setting the ceilings, the Jordan majority were alive to the real world within which the administration of criminal justice operates and aware that "resource issues are rarely far below the surface of most s. 11(b) applications": para. 117. To this end, the ceilings set in Jordan were said to "reflect the realities we currently face": para. 57. S.A., para. 23.

[37] This is true of cases in the Superior Court of Justice which provides for a ceiling of thirty months, twelve months more than the Ontario Court of Justice. The logic for the difference is based on the following three factors: i) increased complexity of cases; ii) inherent needs; and iii) a certain tolerance for institutional delay.

[38] In cases where the time to trial is below the ceilings, the defence must establish:

(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and

(2) the case took markedly longer than it reasonably should have.

[39] Regarding the latter factor, case-specific factors will inform how to characterize the delay. The question I must ask myself, as directed by the Supreme Court of Canada in R. v. K.J.M., 2019 SCC 55, [2019], 4 S.C.R. 39 para. 107, is whether the case took markedly longer than it reasonably should have, and not whether the case should reasonably have been completed in less time.

[40] The Supreme Court of Canada made clear that it expected stays beneath the ceiling to be rare, and limited to clear cases: Jordan, para. 48. This restriction is designed to ensure "borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits": K.J.M., para. 78.

Analysis

Defence Delay

[41] As stated above, the total delay in this case from the day the information was sworn to the conclusion of the trial was twenty-seven months and twenty-eight days. I must next determine if any delay is caused by the defence and subtract that from the total delay.

[42] The Court in Jordan made clear that defence will have directly caused a delay if the court and the crown were ready to proceed, but the defence was not: Jordan, para. 64.

[43] The crown argued approximately 70 days of delay are attributable to the Applicant, therefore reducing the net delay to 25.5 months. The crown points to three specific timeframes for this assertion: July 19, 2023 to August 16, 2023; September 13, 2023 to November 8, 2023; and January 16, 2024 to February 7, 2024.

[44] I do not find delay should be attributed to the defence during these timeframes as explained below:

July 19, 2023 to August 16, 2023: The Respondent argued the delay was attributable to the Applicant being confused or mistaken that the video-statement of Mr. Henry-Hunter had not been disclosed and triggered this adjournment request. This argument loses its impact when considered alongside the fact that the Applicant had identified and advised the crown there was no statement in the disclosure package from the complainant, Mr. Burt.

September 13, 2023 to November 8, 2023: Two adjournments occurred during this period. The Respondent relies on the Applicant's requests for a three-week adjournment followed by a further month in contrast to the crown request to adjourn the matter two weeks and an additional one week respectively. The defence requests for lengthier adjournments did not slow down or impact the progress of the case, as the crown failed to provide a response regarding the statement of Mr. Burt until November 8, 2023.

January 16, 2024 to February 7, 2024: The crown advised the Applicant of its intent to proceed on the remaining charges. The crown argued the Applicant took no steps to have the matter brought forward to an earlier court date. Conversely, nor did the crown. Instead, the Applicant, upon receiving this information, immediately wrote to the trial coordinator to obtain dates for a judicial pretrial. The earliest date offered was February 7, 2024. The same date the Applicant was scheduled to return. In other words, it would not have mattered if the Applicant brought the matter forward as nothing could happen until February 7, 2024, after the judicial pretrial was held.

[45] If I were to attribute delay to the defence, it would be for the period between July 30, 2024 and September 24, 2024, a total of 56 days. The Applicant was committed to stand trial on May 31, 2024, and was remanded to June 25, 2024 in the Superior Court of Justice. Counsel for the Applicant believed the administrative crown, Ms. Garrity, from the Toronto East Crown's office would contact him to schedule a judicial pretrial.

[46] On June 25, 2024, an associate attended on behalf of the Applicant and counsel. The associate informed the court there was a possibility of a resolution in this matter and they were awaiting a response from the assigned crown regarding their discussions and scheduling a judicial pretrial. The associate requested the matter be adjourned for a month to have the further discussions and to book and conduct a judicial pretrial in the interim if necessary. Ms. Garrity advised the next set of available judicial pretrial dates commenced the week of July 22 and suggested the matter return July 30, 2024, in anticipation that the judicial pretrial would be conducted in the interim if it was necessary.

[47] No efforts were made on behalf of the Applicant to provide availability or schedule a judicial pretrial for the week of July 22, 2024. Ms. Garrity contacted counsel through email on July 26, 2024, to inquire if resolution discussions were ongoing and if not, included an updated list of available dates for a judicial pretrial. Counsel replied within ten minutes accepting the earliest date offered and advised he had been told by the crown at the preliminary inquiry that someone would reach out to him, and he has waited since then. Based on this response, it does not appear that counsel was informed by his associate of the availability of the earlier judicial pretrial dates.

[48] The court and the crown were available to conduct a judicial pretrial the week of July 22, in advance of the July 30 court date. The defence took no steps to schedule one, likely due to a miscommunication between counsel and the crown, and between counsel and his associate.

[49] I have not considered this timeframe as defence delay in my analysis, but it does attract scrutiny when determining whether the delay in this case is unreasonable.

Did the Defence Take Meaningful Steps That Demonstrate a Sustained Effort to Expedite the Proceedings?

[50] Action or non-action by an accused person which is inconsistent with a desire for a timely trial is something the court must consider. The Supreme Court held in Jordan that the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form: Jordan, para. 84.

[51] The Court explained the defence must demonstrate it took meaningful and sustained steps to be tried quickly. It is also required to put the crown on timely notice when delay has or is becoming a problem. The Court was clear, that this is not an opportunity for judges to question every decision made by the defence as they are required to act reasonably, not perfectly: Jordan, para. 85.

[52] The Applicant retained counsel in advance of her arrest. The defence acted reasonably, responded quickly, and cooperated with the crown throughout the proceedings. Counsel took steps to move the matter forward on several occasions. The steps taken in review of disclosure and securing dates are what I would expect of all defence counsel.

[53] Counsel also narrowed the issues for the preliminary inquiry and trial. The Applicant streamlined the issues, by conceding date, time, jurisdiction, identity, the medical evidence, video surveillance of the building and an admission the Applicant stabbed Mr. Burt. The issue at trial was whether it was done in self-defence. Two witnesses were necessary for the crown and one witness was anticipated for the defence.

[54] The first dates offered by the courts for the preliminary inquiry and trial were secured.

[55] When an issue arose regarding disclosure of police records, counsel provided caselaw that supported his position in hopes the parties could agree. They could not. The first date offered to hear the motion was accepted. This did not interfere with the first trial date.

[56] Despite the efforts to move the case along, there was a timeframe where the Applicant clearly acquiesced to time needed by the crown to assess its case. When it was discovered, Mr. Burt was not prepared to provide police with a formal statement and the crown, due to other trial commitments, was unable to assess whether there was a reasonable prospect of conviction, the defence agreed to the matter being adjourned for approximately a month. The trial had taken longer than anticipated and was continuing at the time of the next court date. The Applicant requested the matter be adjourned a further two months, to February 7, 2025, to permit the crown an opportunity to review the file. No concerns were expressed by the Applicant regarding this delay.

[57] I am mindful that the Applicant also had three other sets of outstanding charges and was working with the crown to resolve those matters through diversion. Time was needed with respect to those charges to have a report prepared for the crown to consider. Those charges were also remanded to the same date. However, those charges were on a separate path.

[58] There were two occasions the Applicant relied on to demonstrate they had made clear and visible to the crown that delay was a concern. At the initial bail hearing when the matter was not reached, and in response to an email from the crown after the first trial was not reached.

[59] On May 5, 2023, when the Applicant's bail hearing was not reached, counsel expressed his concern regarding the delay in proceeding with the bail hearing and stated it was a breach of the Applicant's right to reasonable bail and he would seek relief. The Applicant argued this was effectively giving notice of delay. No further comments or concerns were expressed until April 10, 2025. The comments regarding the bail not being reached do not clearly demonstrate that delay was a concern pursuant to the Applicant's right to be tried in a reasonable time but rather focused on the delay in obtaining bail.

[60] On April 10, 2025, Ms. Garrity reached out to counsel via email regarding the Applicant's trial not having been reached due to a lack of judicial resources. She sought to confirm there were no police witnesses required, and all pretrial motions addressed. The crown expressed concern regarding the delay in the matter and inquired about counsel's availability for a summer jury trial.

[61] The defence confirmed the above and indicated he was not available for a trial in July but could move things around to accommodate a trial in August. Counsel also advised that he was seeking funding to obtain transcripts and depending on the dates offered by the court may seek a remedy for delay pursuant to s.11(b).

[62] I do not find that comments made at the bail hearing regarding delay were such that the crown was put on timely notice that delay was or would be a problem in this case. If so, this is contradicted by the later actions of the Applicant requesting lengthier adjournments for purposes of the crown assessing the viability of her case. If delay was a pressing concern throughout the proceedings, preliminary inquiry dates should have been secured with the understanding the crown would assess its case with sufficient time that the dates could still be used for other matters if it was determined there was no reasonable prospect of conviction on these charges.

[63] While steps were taken by the defence to move things along, there were periods where the matter proceeded in the usual and ordinary course.

Did the Case Take Markedly Longer Than It Reasonably Should Have?

[64] The Applicant argued this case took markedly longer than it reasonably should have because:

• It was a very straight forward case that had been streamlined to a two-witness case for the crown, with admissions from Ms. Day and an acknowledgment that she stabbed Mr. Burt. The defence is self-defense with the anticipation the Applicant will testify.

• The crown failed to do its part to ensure the case proceeded expeditiously. Specifically, i) it failed to review its case and assess the reasonable prospect of conviction prior to the crown pretrial, and ii) refused to undertake its McNeil obligation to make reasonable inquiries of the police. R. v. McNeil, 2009 SCC 3.

• The net delay falls just short of the thirty-month ceiling. Twenty-eight months is "a long time to wait for justice".

[65] Ms. Day elected to be tried by a jury - which is her right. The estimated trial time with jury was seven days. On April 7, 2025, a civilian witness was bound over to the next day. This individual was not Mr. Burt or Mr. Henry-Hunter, suggesting that irrespective of defence admissions, there were other witnesses the crown chose to call which they are entitled. Although, the issue to be determined was straight forward, the amount of court time required was not.

[66] The Applicant sought to rely on a submission that the crown failed to know its own case or assess it for a reasonable prospect of conviction in advance of the crown pretrial, although the crown did just that with respect to the attempt murder charge. Regarding the absence of a statement of Mr. Burt, the Applicant stated that both the crown and defence were mistaken and believed a further statement from Mr. Burt had been obtained aside from his initial interview in the hospital. Upon confirmation one did not exist, and that Mr. Burt was unwilling to provide one, the crown sought to reassess its case. During this time, there was nothing that prevented the defence from seeking to set dates for the preliminary inquiry, rather than adjourn the matter for several months. As Jordan makes clear, all participants in the criminal justice system are encouraged to cooperate to achieve reasonably prompt justice: Jordan at para. 5.

[67] A disclosure motion was scheduled and heard in advance of the trial date. The Applicant was successful in obtaining an Order for the requested police records. The decision was rendered April 2, 2025, and records were disclosed April 3, 2025. Neither the motion itself nor the late production of the materials caused the trial to not proceed on April 7, 2025.

[68] In June, additional materials were disclosed, demonstrating that Pinto, J.'s order had not been complied with in advance of the first trial date. The Applicant argued had the trial proceeded in April, she would have lacked significant and important material to cross-examine the crown witnesses that likely would impact their credibility and prejudiced her defence.

[69] No explanation was proffered by the crown regarding why these materials had not been provided in April. Ms. Will sent a copy of the disclosure order to the Toronto Police Service upon being assigned the case. She had no information if that had been done on the earlier occasion. It is concerning and troubling that such a discrepancy between the materials disclosed occurred. At least two of the additional occurrence reports went directly to issues of credibility that contradicted evidence provided by the crown witnesses at the preliminary inquiry.

[70] That said, the issues surrounding this disclosure did not impact the trial not proceeding in April and did not necessitate an adjournment of the proceedings as it did in R. v. Belle, 2018 ONSC 7728.

[71] Contrary to the defence position, I do not find that the crown conduct caused this matter to take markedly longer than it reasonably should have. As with assessing the conduct of the defence, trial judges should not hold the crown to a standard of perfection: Jordan at para. 90.

[72] There were opportunities for both parties to move this matter along quicker. This was not a situation like Belle where the crown caused the markedly excessive delay and failed to rectify the error by inaction.

[73] The Ontario Court of Appeal stated when examining below the ceiling delay, courts should start from the position that the state brought the accused person to trial within a presumptively reasonable time and then determine whether the accused person has rebutted the presumption of reasonableness: S.A. at para. 35.

[74] Trial judges are encouraged to "employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial" when considered with relevant local and systemic circumstances: Jordan at para. 91; S.A. at para. 26.

[75] The net delay fell below the ceiling by two months which is still within the presumptively reasonable timelines. If I erred in not attributing delay to the defence, the net delay is further reduced to twenty-six months.

[76] In S.A., Fairburn, A.C.J.A., recognized that Toronto schedules matter on the basis that not all trials may proceed in their first trial date. Quoting from R. v. Campbell, 2022 ONCA 223 at para. 24, the court noted, "[t]he practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial" and "given the pressures on the parties to set dates in order to keep the case moving forward, ... a first trial date may be more aspirational as to timing than it is realistic". As not all trials proceed as scheduled, trial lists are "stacked" to ensure courtrooms are not left empty. However, this comes with the risk that not all trials will be reached: S.A. paras. 38 – 41.

[77] As Goldstein, J. advised the parties, "Some weeks we have no problem reaching everything and some weeks we have problems". That week there were two trials not reached.

[78] The requirement for a second week of trial time also impacts scheduling including the availability of courtrooms and judges. In this case, the second week flowed into the Easter long weekend, making it a short week.

[79] The crown had identified this matter as the next in priority. The Court advised it is the crown who prioritizes matters not the court. Goldstein, J. instructed the parties to monitor their emails in the event a court/judge became available. One did not become available and the following morning, on April 10, 2025, the crown emailed counsel to canvas summer trial dates, as she had identified this matter as requiring an early second trial.

[80] At the conclusion of the second trial date, the matter would have been in the Superior Court of Justice 14.5 months after the preliminary inquiry. It would have been less than 12 months but for the miscommunication between counsel and his associate in scheduling a judicial pretrial.

[81] This was not a case where the crown was lackadaisical or tranquil in its approach knowing there was a safety net in the presumptive ceiling.

[82] Nor is this a case where the defence lay in the weeds waiting for the ball to be dropped.

[83] I am not satisfied this is a "clear" case warranting a s. 11(b) stay. The Applicant has not discharged her onus.

Conclusion

[84] The Applicant's right to be tried within a reasonable time was not violated pursuant to s.11(b). The application is dismissed.

Justice C. Rhinelander

Released: August 29, 2025