Court File and Parties

Court File No.: CR-22-70000671-0000 Date: 2025-09-03

Ontario Superior Court of Justice

Between:

His Majesty the King – Respondent

and

Joshua Oliver – Applicant

Counsel:

• Monica Gharabaway, for the Respondent
• Victoria Strugurescu, for the Applicant

Heard: July 31, 2025

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

Vermette J.

Introduction

[1] The Applicant, Joshua Oliver, along with his co-accused, Mariana Benkartoussa, is charged with the following five offences that are alleged to have been committed between April 2 and May 12, 2021:

a. human trafficking, contrary to subsection 279.01(1) of the Criminal Code;

b. receiving a financial or other material benefit from human trafficking, contrary to subsection 279.02(1) of the Criminal Code;

c. receiving a financial or other material benefit from sexual services obtained for consideration, contrary to subsection 286.2(1) of the Criminal Code;

d. procuring, contrary to subsection 286.3(1) of the Criminal Code; and

e. advertising sexual services, contrary to section 286.4 of the Criminal Code.

[2] In addition, the Applicant is charged with a sixth count, i.e., theft of a cellular phone worth less than $5,000, contrary to subsection 334(b) of the Criminal Code. This offence is also alleged to have been committed between April 2 and May 12, 2021.

[3] All the charges relate to one complainant.

[4] The Applicant has brought an application for an order staying the proceedings as against him pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms ("Charter").

A. Factual Background

[5] The Applicant was arrested on May 12, 2021. The Information was sworn on May 13, 2021.

[6] A preliminary inquiry was conducted on October 24 and 25, 2022.

[7] The joint two-week judge and jury trial of the Applicant and Ms. Benkartoussa was initially scheduled to commence on October 7, 2024. However, the trial did not proceed and was adjourned at Ms. Benkartoussa's request. The trial was rescheduled to begin on September 29, 2025, and conclude on October 10, 2025.

[8] At the anticipated conclusion of the Applicant's trial, this matter will have taken 52 months and 28 days, i.e., 22 months and 28 days above the applicable 30-month presumptive ceiling.

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

B. Positions of the Parties

1. Position of the Applicant

[10] The Applicant's position is that the net delay in this case is approximately 41 months, i.e., 11 months above the 30-month presumptive ceiling.

[11] The Applicant submits that he made all reasonable efforts to be tried within the presumptive ceiling. However, the Applicant concedes that the time it took to complete his Rowbotham application (from December 22, 2022 to April 6, 2023) and the unavailability of his counsel between May 22, 2023 and January 8, 2024 – a total of approximately 11 months – fall at the feet of the defence. The Applicant argues that the remaining substantial delay can largely be attributed to his co-accused and the Crown's decision not to sever the prosecution. The Applicant asserts that his case is not complex and there are not any exceptional circumstances to justify the delay.

[12] The Applicant states that there were no section 11(b) concerns at the time the original trial date was being scheduled, and that section 11(b) only became relevant once Ms. Benkartoussa's application to adjourn the trial was granted and new trial dates were secured. The Applicant points out that his counsel raised section 11(b) concerns during the stand down judicial pre-trial that took place on the day that Ms. Benkartoussa's application for an adjournment was granted.

[13] The Applicant's position is that he cannot be at fault for his co-accused's delay over which he had no control and for which he bore no responsibility. According to the Applicant, the section 11(b) framework does not support the argument that the delay of one accused is the delay of all co-accused. The Applicant argues that none of the delay from the date of the first trial to the date of the second trial can be attributed to him.

[14] The Applicant states that any delay caused by Ms. Benkartoussa's counsel should not be attributed to him as he and Ms. Benkartoussa are not proceeding as a collective. The Applicant notes that they are two separate parties with distinct interests, they have never presented themselves as a united front, and they have not endorsed each other's actions throughout. According to the Applicant, the fact that they are on the same indictment is not sufficient to suggest that they are a single indistinguishable unit.

[15] The Applicant submits that in certain cases, the Crown has an obligation to sever the prosecution of jointly charged accused persons when the delay-causing conduct of one accused holds the other accused hostage and compromises their section 11(b) rights. The Applicant argues that a joint prosecution is no longer in the interests of justice if it necessitates an adjournment that compromises an accused's section 11(b) rights, nor is it a magic wand that the Crown can waive to make a co-accused's section 11(b) rights disappear. The Applicant states that in cases where a co-accused is preventing the Crown's case from moving forward while simultaneously preventing the accused from proceedings expeditiously, the onus falls on the Crown to take a more proactive stance so as not to compromise the section 11(b) rights of the accused. According to the Applicant, it is clear that the complainant's well-being took priority over his Charter-protected rights in the Crown's decision not to sever. The Applicant asserts that the fact that he did not apply for severance bears no relevance when assessing delay. He notes that such an application was bound to fail and would have created further delay.

[16] The Applicant argues that the scheduling conflicts do not amount to a discrete exceptional circumstance. The Applicant points out that scheduling issues almost always arise when attempting to coordinate multiple counsel's schedules. The Applicant states that the Crown must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling, but the Crown cannot show that it took reasonable steps in this case.

[17] The Applicant also submits that the delay caused by the conduct of a joint trial does not qualify as an exceptional circumstance because the delay could have reasonably been ameliorated by the Crown had the parties been severed, and the Crown did not develop a concrete plan to minimize the significant accumulating delay. The Applicant states that sending multiple e-mails to counsel and the trial coordinator is not a concrete plan. The Applicant notes that it has been recognized in the case law that there may come a point where the Crown will have to minimize accumulating delay resulting from a joint trial by giving up on the joint trial plan and trying co-accused persons separately.

2. Position of the Respondent

[18] The Crown's position is that once the significant defence delay is subtracted from the total delay, the net delay is below the presumptive ceiling.

[19] The Crown submits that the Applicant and Ms. Benkartoussa moved collectively throughout the proceeding. The Crown points out that they were arrested together, at all times charged on the same information, facing identical charges (apart from the theft under $5,000 count with which the Applicant is charged), made joint appearances in set-date court, proceeded to a joint preliminary inquiry, are charged on a joint indictment, had joint judicial pre-trials in the Ontario Court of Justice ("OCJ") and the Superior Court of Justice ("SCJ"), and scheduled a joint jury trial.

[20] The Crown argues that the periods of defence delay are as follows:

a. May 9 to October 24, 2022 (5 months and 15 days): In December 2021, the OCJ offered the dates May 9-11, 2022 for the preliminary inquiry. Crown counsel was available on these dates, but counsel for Ms. Benkartoussa was unavailable.

b. December 22, 2022 to April 6, 2023 (3 months and 15 days): The SCJ judicial pre-trial scheduled for December 22, 2022 was cancelled at the request of the Applicant's previous counsel because he was in the process of being removed from the record. A new judicial pre-trial was not scheduled until April 6, 2023, because the Applicant was in the process of completing a Rowbotham application.

c. June 5, 2023 to October 7, 2024 (16 months and 2 days): On April 30, 2023, the Crown offered a number of trial dates, including June 5, 2023. The Applicant's counsel was unavailable on those dates and, ultimately, any dates prior to October 7, 2024.

d. January 6 to September 29, 2025 (8 months and 23 days): Immediately after the adjournment of the trial on October 7, 2024, multiple new trial dates were offered to reschedule the trial, including January 6, 2025. While Crown counsel and the Applicant's counsel were available, counsel for Ms. Benkartoussa was not available until September 29, 2025.

[21] The Crown urges the Court to deduct the full delay from the inevitable need to accommodate each accused in scheduling the preliminary inquiry and the two trials.

[22] The Crown states that it held itself in almost perpetual availability to attempt to move the matter forward as expeditiously as possible, and that it offered to reassign the case to ensure that earlier dates could be secured. The Crown notes that multiple dates were offered at each stage of the proceeding.

[23] The Crown asserts that it unilaterally considered severance, but that it was an untenable solution given the temporal and factual nexus between the accused, the vulnerability of the complainant and the waste of court time given the scarcity of resources. The Crown submits that it is in the interests of justice to proceed jointly against both accused and notes that the Applicant does not suggest otherwise. The Crown points out that the Applicant did not pursue severance at any point in the proceeding.

[24] The Crown submits that it acted proactively to obtain the earliest possible dates for a second trial. However, the schedule of Ms. Benkartoussa's counsel prevented earlier dates from being secured, even though Crown counsel and the Applicant's counsel were available.

[25] In the alternative, if the Court does not find that the accused parties were proceeding as a collective, the Crown argues that the delay of the co-accused amounted to a discrete exceptional circumstance. The Crown states that: (a) the joint trial is being undertaken in the interests of justice; (b) the delay has arisen because of the joint trial; (c) the delay is unforeseen or reasonably unavoidable; and (d) the Crown could not reasonably have ameliorated the delay.

[26] The Crown argues that the scheduling conflicts of defence counsel are a discrete exceptional circumstance because the Crown has no ability to control the schedules of an accused's counsel. The Crown states that to hold otherwise would disincentivize the Crown from pursuing joint prosecutions, even where it is in the interests of justice to do so. According to the Crown, such a result would be antithetical to the direction in R. v. Jordan, 2016 SCC 27 ("Jordan") to make efficient use of criminal justice system resources.

C. Discussion

1. General Applicable Legal Principles

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

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

[29] If the total delay from the charge to the actual or anticipated end of trial minus defence delay and/or a period of delay attributable to exceptional circumstances falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (a) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (b) the case took markedly longer than it reasonably should have. Stays beneath the presumptive ceiling are expected to be rare and limited to clear cases. See Jordan at paras. 48, 92-93.

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

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

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

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

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

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

[34] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. Further, defence applications and requests that are not frivolous will also generally not count against the defence. See Jordan at para. 65.

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

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

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

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

[39] In calculating delay, the court should adopt "a bird's-eye view of the case". See Jordan at para. 91 and Zahor at para. 92.

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

[41] Exceptional circumstances generally fall into two categories: (1) discrete events; and (2) particularly complex cases. In this case, the Crown alleges the presence of a discrete event. Discrete exceptional circumstances are unexpected and uncontrollable happenings that lead to delay. They engage a quantitative analysis, i.e., the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Discrete events include, for example, medical or family emergencies of criminal justice participants (e.g., the accused, important witnesses, counsel or the trial judge), recanting witnesses, and elongated trials despite good faith timeline estimates. See Zahor at paras. 70-71 and Jordan at paras. 72-73.

2. Principles Applicable in Cases of Jointly Charged Accused

[42] In cases of jointly charged accused, an individualized approach must generally be taken to the attribution of defence-caused delay. Thus, delay caused by the actions or inactions of a co-accused cannot be attributed to all. Doing so would be inconsistent with the approach and language of Jordan, which itself involved a number of jointly charged accused persons. See R. v. Gopie, 2017 ONCA 728 at paras. 128, 136 ("Gopie"). However, delays arising in cases involving jointly charged accused can give rise to exceptional circumstances under the Jordan framework, provided that it is in the best interests of justice to proceed jointly against the co-accused persons. See Gopie at paras. 136, 142.

[43] It has been recognized that the interests of justice are most often best served by having people who are alleged to have committed crimes together tried together. In such circumstances, a single trial for two or more accused persons generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once. See R. v. Whylie at para. 24 (Ont. C.A.) and R. v. Ny, 2016 ONSC 8031 at para. 42 ("Ny"). It has also been recognized that the important policy rationales for keeping joint trials intact must not be lost "in the increasing shadow of an approaching ceiling." See Ny at para. 45. As the British Columbia Court of Appeal pointed out in R. v. Singh, 2016 BCCA 427 at para. 81:

Severance is not a panacea when delay issues arise in a multi-party indictment. The Jordan framework does not require severing proceedings in all cases. While there may well be cases where severance would be appropriate to avoid some delay, the interests of justice may dictate otherwise. […]

See also Ny at paras. 45-46.

[44] While the Crown may have a legitimate interest in having jointly charged accused tried together, that interest must be balanced against the accused's constitutional right to be tried within a reasonable time. See Gopie at para. 139. If the Crown chooses to prosecute a number of accused jointly, the Crown is required to remain vigilant that its decision does not compromise the section 11(b) rights of the accused persons. See R. v. Vassell, 2016 SCC 26 at para. 5 ("Vassell") and R. v. Manasseri, 2016 ONCA 703 at para. 373 ("Manasseri"); leave to appeal dismissed:. There may come a time when the interests of justice are no longer served by proceeding jointly, including where section 11(b) rights are in jeopardy. The Crown has an obligation to assess continually 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, and the Crown cannot let counsel for one of the co-accused dictate the pace of the litigation. While there are different mechanisms that can be resorted to when dealing with this kind of situation, depending on the facts of the case, severance is one mechanism that lies within the Crown's control. See Gopie at para. 171, Manasseri at paras. 373 and 376, Ny at paras. 48-49, 113, 115, and Vassell at para. 7.

[45] While the individualized approach to the attribution of defence-caused delay in cases of jointly charged accused set out in Gopie is the general rule, other decisions of the Court of Appeal have applied a collective or communal approach in certain circumstances. In R. v. Albinowski, 2018 ONCA 1084 ("Albinowski"), after referring to the individualized approach set out in Gopie, the Court of Appeal stated the following (at paras. 37-39):

[37] In my view, however, the individualized approach in Gopie does not apply in this case because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents' joint situation.

[38] Not only is it common ground that joint proceedings were justified in this case (especially in light of the coordinated nature of the allegations), all parties accepted that severance was never an option. As Mr. Albinowski's counsel submitted before the trial judge on the s. 11(b) application, a severance application would have amounted to the kind of defence conduct decried under the Jordan framework. In essence, the defence presented a united front. For example, during the s. 11(b) application, counsel for Mr. Pipien commenced his submissions by stating he was speaking on behalf of the two other defence counsel. Moreover, each defence counsel largely endorsed the others' submissions on the application. Because the defence proceeded through the system as a collective, the delay caused by scheduling challenges must be analyzed in the same manner – that is, communally.

[39] I acknowledge that "[t]here 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": Gopie, at para. 171. But that is not this case. None of the respondents were held "hostage" by his co-accused's counsel's unavailability: Gopie at para. 171; see also R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 7; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 323, leave to appeal refused, [2016] S.C.C.A. No. 513. Rather, the interests of justice favoured proceeding against the respondents jointly: Gopie, at para. 174. Further, as discussed below, the Crown made reasonable, though unsuccessful, efforts to expedite the proceedings.

[46] In R. v. Brissett, 2019 ONCA 11 ("Brissett"), the trial judge had attributed a period of four-month delay to all the accused persons, which delay was caused by the unavailability of the lawyer of one co-accused. The trial judge found that the particular counsel and his client had acted responsibly throughout. He pointed out that the other accused acquiesced in the delay and did not raise section 11(b) concerns, "presumably because they needed the further delay in order to complete their own retainers and prepare for trial." The Court of Appeal agreed with the trial judge's conclusion and referred to Albinowski. See Brissett at paras. 14-16.

[47] In R. v. Pauls, 2020 ONCA 220 ("Pauls"), the Court of Appeal applied the "communal defence delay approach" set out in Albinowski with respect to two short periods of delay (one month and 18 days and one month and five days). See Pauls at paras. 50-54. After referring to the individualized approach described in Gopie, the Court of Appeal stated the following (at paras. 53-54):

[53] Nonetheless, in Albinowski, this court held there may be circumstances where a communal approach to defence delay is more appropriate. These include multiple-accused cases where several counsel are unavailable for different parts of a particular delay period. For example, that was the situation in this case where all counsel, including the Crown, were unavailable for some parts of the period between January 14, 2016 and June 20, 2016. The trial judge allocated three months of the five-month seven-day delay jointly to the defence and the remaining delay to the Crown. Although the Crown challenges the amount of delay allocated to it, no party has challenged the propriety of that approach. Where appropriate, this form of communal allocation may avoid microscopic assessments of delay periods, a practice of which the Supreme Court disapproved in Jordan: at paras. 37, 111.

[54] The two periods of delay I have identified as being governed by the communal approach occurred at a time when the respondents were charged on separate informations. Thus, the Yusuf respondents agreed to trial dates acceptable to Pauls knowing that their counsel, the Crown and the court had earlier available dates and, more importantly, accepting that their trials should proceed with Pauls. Given these circumstances I conclude that, at least for the first two periods I have identified, the Yusuf respondents should be treated as proceeding communally with Pauls and should share in the delay caused by the unavailability of his counsel.

[48] The Court of Appeal also applied the approach set out in Albinowski in R. v. Chung, 2021 ONCA 188 ("Chung"). The Court of Appeal stated that in that case, it was apparent that the two jointly charged accused, who were family members, "wished to proceed through the system as a collective". The Court of Appeal also pointed out that the accused never opposed the adjournment requested by the other accused, and did not apply for a severance so that his trial could proceed alone. See Chung at para. 195.

[49] In a recent case, R. v. Jacques-Taylor, 2024 ONCA 458 at para. 8, the Court of Appeal upheld the decision of the application judge to adopt an individualized approach for delay because the application judge's finding that the co-accused did not proceed as a collective was supported by the evidence and entitled to deference.

[50] The case law suggests that in order to apply a non-individualized approach to delay and to find that co-accused persons have proceeded as a collective, the co-accused persons must have done something more than simply being co-accused with common court appearances. For example:

a. In R. v. Rouse, 2020 ONSC 6162 at para. 70, the court found that the defence "presented a joint front" and noted, as an example, that counsel for one accused relied upon the submissions made by counsel for the other accused on the application.

b. In R. v. Robinson, 2021 ONSC 2445 at para. 66, a case where there were four accused, the court found that each of them at times endorsed the others' actions throughout the proceedings.

c. In R. v. Hassan, 2022 ONSC 6369 at paras. 56-57, 59-60 ("Hassan"), the court, referring to Pauls at para. 53, stated that a communal approach may be more appropriate where counsel are unavailable for different parts of a particular delay period. The court noted that both counsel had limited availability and that neither accused was dragged along unreasonably by actions or inactions, or availability or unavailability, of the other. The court also pointed out, among other things, that the accused had acquiesced to some of the delay and that his counsel had adopted the submissions made on behalf of the other accused on the application.

d. In R. v. Al-Ramahi, 2023 ONSC 7281, [2023] O.J. No. 6002 at para. 76, the court found that the co-accused participated together in a number of pre-trial applications, which they approached collectively (e.g., with one counsel taking the lead and the other adopting the submissions and adding only a few specific additional submissions).

e. In R. v. Das, 2024 ONSC 5578 at para. 15(2), the court found that the fact that one counsel was willing to make submissions on behalf of all accused for some of the pre-trial motions was insufficient to displace the individualized approach set out in Gopie.

[51] In R. v. Tran, 2023 ONCA 532 ("Tran"), the Court of Appeal reiterated the approach set out in Gopie, i.e., that an individualized approach must be taken in calculating delay. See Tran at para. 39. However, the Court of Appeal stated that delay caused to the accused by the conduct of a joint trial can qualify as an exceptional circumstance that may permit delay in excess of the prima facie unreasonable delay period. In order to rely upon exceptional circumstances to excuse delay that has been caused as a result of the prosecution of a joint trial, the Crown must establish that:

a. the joint trial is being undertaken in the interests of justice;

b. the delay has arisen because of the joint trial;

c. the delay is unforeseen or reasonably unavoidable; and

d. the Crown could not reasonably have ameliorated the delay.

See Tran at para. 40.

[52] In Tran, the Court of Appeal found that the Crown had established all four elements with respect to the short nine-day delay that was in issue in that case. The Court of Appeal found that "it would have been thoroughly unreasonable to expect the Crown to abandon a joint trial format that was undertaken in the interests of justice to avoid a nine-day delay." See Tran at para. 43. The Court of Appeal also found that the delay could not reasonably have been ameliorated by the Crown, and distinguished Tran from Manasseri. The Court of Appeal stated the following (at para. 44):

[…] In that case [Manasseri] the Crown had utterly failed to develop a concrete plan to minimize this alarming, accumulating delay, when the Crown could have minimized it by directly indicting Mr. Kenny or severing his charges to permit his trial to proceed unaffected by the languid pace that Mr. Manasseri's counsel had established. Manasseri therefore recognizes that there may come a point where the Crown will have to minimize accumulating delay resulting from a joint trial, by giving up on the joint trial plan and trying co-accused persons separately. But in my view, that point was far from being reached in the circumstances of this case. As indicated, the period of prima facie unreasonable delay in this case was only nine days, a delay that simply does not warrant the abandonment of a plan to conduct a joint trial that is being conducted in the interests of justice.

3. Application to This Case

[53] As stated above, the total delay in this case from the charge to the anticipated end of trial is 52 months and 28 days.

[54] Before discussing the alleged instances of defence delay, I will first discuss the issue of whether the Applicant and Ms. Benkartoussa proceeded as a collective in this joint proceeding such that delay caused by Ms. Benkartoussa can also be attributed to the Applicant and be treated as common to all accused persons.

a. Whether the Applicant and Ms. Benkartoussa Proceeded as a Collective

[55] In my view, the Applicant and Ms. Benkartoussa did not proceed as a collective in this case.

[56] It is to be expected that, in many or most cases involving jointly charged accused persons, the accused persons will: be charged on the same information, face similar and related charges, make joint appearances in set-date court, have a joint preliminary inquiry, be charged on a joint indictment, have joint judicial pre-trials, and schedule a joint trial. It is also to be expected that, with more than one set of defence counsel, the scheduling of dates will generally be more complicated and difficult. These facts alone cannot be sufficient to find that jointly charged accused persons are proceeding as a collective and to adopt a communal approach instead of the individualized approach set out in Gopie because if they were sufficient, jointly charged accused persons would be found to proceed as a collective in most cases. This would be contrary to the general principles set out in Gopie.

[57] As set out in paragraph 50 above, cases where co-accused persons were found to have proceeded as a collective and where a non-individualized approach to delay was applied generally involved something more than the co-accused persons simply being co-accused with common court appearances. This "something more" is not present in this case. Among other things, I note the following:

a. Ms. Benkartoussa's counsel had a Crown pre-trial without the Applicant or his counsel.

b. While the matter was in the OCJ, the Applicant expressed a number of times that he wanted to resolve his charges.

c. Some of the appearances in the OCJ were not joint.

d. The Applicant wished to elect to have a trial, but Ms. Benkartoussa elected to have a preliminary inquiry.

e. Counsel for the two co-accused did not take the same positions at the preliminary inquiry.

f. While there are three instances where an agent appeared for both the Applicant and Ms. Benkartoussa, they were not substantive appearances. The agent was generally only conveying information/availability to the Court on behalf of counsel, and the information/availability that was conveyed was not the same for both counsel.

g. There is no pattern of counsel for one accused relying on, or endorsing, the submissions or positions of counsel for the other accused.

h. There were no joint applications.

[58] In light of the foregoing and the record before me, I cannot conclude that the Applicant and Ms. Benkartoussa "presented a joint front" or proceeded as a collective.

[59] In addition, this case does not involve delay periods of a few months where both defence counsel were unavailable for different parts of a particular delay period (like in Pauls at para. 53 and Hassan). This is not a case where it is necessary to adopt a communal allocation of delay in order to avoid microscopic assessments of delay periods.

[60] Thus, I conclude that the individualized approach to the attribution of defence-caused delay in cases of jointly charged accused set out in Gopie applies in this case.

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

b. Delay in Scheduling the Preliminary Inquiry – May 9 to October 24, 2022

i. Relevant Facts

[62] On December 9, 2021, the OCJ offered the dates May 9-11, 2022 for the preliminary inquiry. Crown counsel was available on these dates. In an e-mail sent on December 9, 2021, counsel for the Applicant stated that she needed to do some juggling and would respond as soon as she could. Ms. Benkartoussa's counsel advised that he was not available that week.

[63] On December 17, 2021, Crown counsel sent an e-mail outlining all counsel's availability for the preliminary inquiry. The e-mail shows that the Applicant's counsel was prepared to proceed on May 9-11, 2022 and, in fact, she had availability earlier in April 2022. Ms. Benkartoussa's counsel did not have availability until the end of August 2022, but neither the Crown nor the Applicant's counsel were available on those dates. Both defence counsel had availability in September, starting on September 6, but the Crown did not. The earliest dates on which all three counsel were available were October 24-26, 2022, which were ultimately the dates that were set for the preliminary inquiry.

ii. Analysis

[64] Considering the Applicant individually, he is not responsible for the delay from May 9 to October 24, 2022 because he was prepared to proceed with the preliminary inquiry on May 9, 2022.[^1]

[65] As I have found that an individualized approach was appropriate in this case, no delay is attributable to the Applicant with respect to the scheduling of the preliminary inquiry in 2022.

c. Delay in Scheduling the SCJ Judicial Pre-trial – December 22, 2022 to April 6, 2023

[66] The Applicant concedes that this delay is attributable to him.

i. Relevant Facts

[67] A judicial pre-trial was scheduled for December 22, 2022. However, it did not proceed due to a breakdown in the relationship between the Applicant and his counsel at the time. On January 16, 2023, the Applicant's counsel sought an order to be removed as lawyer of record, which was granted, and the Applicant personally advised the court that his current counsel would be bringing a Rowbotham application. The matter was adjourned to February 6, 2023.

[68] On February 6, 2023, the court was advised that the Applicant's current counsel had submitted an application to the Rowbotham Pilot Project. At the request of the Applicant, the matter was adjourned to February 27, 2023. On February 27, 2023, the court was advised that counsel was waiting to hear back with respect to the application. At the request of the Applicant, the matter was adjourned to March 13, 2023.

[69] On March 8, 2023, following an exchange of e-mails between counsel, a judicial pre-trial was scheduled for April 6, 2023. On March 13, 2023, the court was advised that the Applicant's current counsel was expecting to be retained imminently and that a judicial pre-trial had been scheduled for April 6, 2023. Counsel was formally retained on April 3, 2023, a few days before the judicial pre-trial.

ii. Analysis

[70] In light of the foregoing, I agree with the Crown's position and the Applicant's concession that the delay from December 22, 2022 to April 6, 2023 – 3 months and 15 days – with respect to the holding of a judicial pre-trial at the SCJ was caused by the Applicant's representation issues and should be attributed to the Applicant.

d. Delay in Scheduling the Initial Trial – June 5, 2023 to October 7, 2024

[71] As stated above, the Applicant concedes that he is responsible for the delay between May 22, 2023 and January 8, 2024. However, his position is that the remaining delay is not attributable to him.

i. Relevant Facts

[72] On April 11, 2023, Crown counsel wrote to defence counsel and asked them to send their availability for a two-week jury trial. The Applicant's counsel responded that he was available starting January 8, 2024. Ms. Benkartoussa's counsel had availability for a two-week jury trial in May, July and September 2023, as well as in July, August and October 2024. Crown counsel had availability in May, July, and December 2023, as well as availability in February 2024 and almost any time in 2024 starting in April, except in September 2024.

[73] A request for trial dates was sent to the trial coordinator on April 14, 2023, outlining counsel's availability. The first available date that was mutually convenient to all parties was October 7, 2024.

[74] On April 17, 2023, the following dates were offered: May 22, May 29, July 24 and August 14, 2023, as well as January 29, 2024. Crown counsel indicated that if any of the dates worked for defence counsel, she would ask someone to step in for her for the trial in order to obtain earlier dates. The Applicant's counsel was not available on these dates, but he provided his availability in 2024. His first availability for a two-week trial was in February 2024.

[75] On April 21, 2023, Crown counsel asked defence counsel whether they were available for trial starting on September 11, 2023. Defence counsel did not respond.

[76] On April 22 and 23, 2023, counsel were advised that a priority spot had become available for a two-week trial starting on February 26, 2024 or May 15, 2024. Both Crown counsel and the Applicant's counsel were available on these dates, but not Ms. Benkartoussa's counsel.

[77] Ultimately, on April 24, 2023, the trial was scheduled for October 7, 2024 for two weeks. During the appearance, the Crown advised the court that this matter was put on the Crown's priority list for earlier dates, and that they would continue to look for earlier agreeable dates to counsel. The matter was adjourned to May 29, 2023 to continue canvassing earlier trial dates.

[78] On April 26, 2023, a trial date of June 5, 2023 was offered. The Applicant's counsel advised that the date did not work for him.

[79] After the May 29, 2023 appearance, the matter was adjourned a few times (June 5, July 10, and August 21, 2023) to continue canvassing for earlier dates.

[80] On July 27, 2023, a trial date of November 13, 2023 was offered, but the Applicant's counsel was not available.

[81] On July 31, 2023, a trial date of January 15, 2024 was offered. The Applicant's counsel advised that he was available, but Ms. Benkartoussa's counsel was not available.

[82] On August 17, 2023, Crown counsel asked whether the matter should be put into Jordan Court on September 28 to try and find dates. The Applicant's counsel responded as follows:

My calendar has not opened up. So, as much as I would like to canvass earlier dates, I have almost no two-week blocks before the current trial dates.

[83] The Crown responded that it would have accommodated many earlier dates, including in December 2023, as well as in February, March, April, May, June, July and August 2024.

ii. Analysis

[84] In light of the foregoing, and applying an individualized approach to the attribution of defence delay, I agree with the Applicant's position that he is responsible for the delay between May 22, 2023 and January 8, 2024, but not for the delay between January 8 and October 7, 2024 (i.e., the initial trial date).

[85] In April 2023, the Court offered May 22, 2023 as a trial date. The Crown was available on that date, and so was Ms. Benkartoussa's lawyer. It is the Applicant's counsel who was not available until January 8, 2024. However, at the time that the trial was scheduled, the Applicant's counsel had availability in 2024 and was prepared to accept a number of the trial dates that were offered in 2024. The reason why the parties were not able to schedule the trial earlier in 2024, i.e., before October 2024, was the unavailability of Ms. Benkartoussa's counsel. This delay cannot be attributed to the Applicant.

[86] Therefore, I conclude that the delay between May 22, 2023 and January 8, 2024 – 7 months and 16 days – is attributable to the Applicant.

e. Delay in Scheduling the Trial After the Adjournment – January 6 to September 29, 2025

i. Relevant Facts

[87] On October 3, 2024, i.e., on the Thursday before the beginning of the trial, there was an appearance during which Ms. Benkartoussa's lawyer raised for the first time the possibility of an application for an adjournment. The following exchange took place:

THE COURT: Could this be a joint application for an adjournment or should I be concerned that one accused wants an adjournment and the other perhaps doesn't?

L. RADOS: This concerns – I will say this much Your Honour, Ms. Benkartoussa is the recent victim of very serious crime and there are quite a few interlocking complications arising from that. So it is a situation where if we are seeking an adjournment, it will be on behalf of Ms. Benkartoussa. It is a situation where the Crown may want to you know, think about severance, for example.

THE COURT: All right, have you had a chance to speak to Ms. Gharabaway about this?

L. RADOS: No Your Honour, this is something that's unfolding, being brought to my attention as of late yesterday.

[88] Ms. Benkartoussa served materials for an application for an adjournment on the following day, Friday, October 4, 2024, in the afternoon.

[89] On Monday, October 7, 2024, Ms. Benkartoussa's application for an adjournment was heard by the court. Her counsel stated the following:

MR. RADOS: So Your Honour it is a defence request on behalf of Ms. Mariana Benkartoussa.

THE COURT: Okay.

MR. RADOS: The exact particulars of it are set out in our written application, but the gist of it is that she is very recently a victim of serious crime and there [sic] a whole series of complications arising from that, including travel, accommodation, safety, wellness and medical. And based on that, it is a situation where she can't be here today, and even if she were, she would not be in a state to continue – to start this trial. And so I am seeking an adjournment on her, on her behalf.

[90] The Crown advised that, given the circumstances, it was not opposing the application for an adjournment. The Applicant's counsel took no position with respect to Ms. Benkartoussa's application but stated that he saw a valid basis for an adjournment for Ms. Benkartoussa. The following exchange also took place:

THE COURT: Okay. What about Mr. Zeeh's client [i.e., the Applicant]?

M. GHARABAWAY: So Your Honour, I have contemplated this issue quite fulsomely over the weekend and when I was served with the adjournment application. Unfortunately, given that it is a human trafficking matter Your Honour, it would be fairly untenable to do this trial twice.

THE COURT: Right.

M. GHARABAWAY: I am cognizant of the fact that Mr. Oliver's – or Mr. Zeeh's client is in custody Your Honour and what I have endeavoured to e-mail all of the Boroughs to see who can give me the quickest trial time …

THE COURT: Okay.

M. GHARABAWAY: … so that we can have a joint trial. The factual and temporal nexus between the two accused Your Honour is, is quite intertwined. They were arrested together, they have moved collectively through the system, there is no way we'll do this trial individually Your Honour and so that is unfortunately my position Your Honour. But I can advise that I was ready to go today, had we been able to do a joint trial today.

[91] A judicial pre-trial took place at the request of the Applicant's counsel, and the matter was ultimately adjourned to the next Practice Court date to confirm new trial dates. The matter was also scheduled to go to Jordan Court.

[92] The availability of counsel provided on the Trial Confirmation Form sent to request new trial dates was as follows:

a. Availability of Ms. Benkartoussa's counsel: i. December 9, 2024 ii. June 23 or 30, August 18, September 29, October 6 and November 24, 2025

b. Availability of the Applicant's counsel: i. January 6-17, March 10-28, April 21-May 23, June 2-13, 2025 and July 2025 onwards

c. Availability of Crown counsel: i. Any day in January 2025, March 10-21, April 28-May 9, June 30-August 21 and September 8-December 18, 2025

[93] On October 21, 2024, the trial was set for September 25, 2025 for ten days before a judge and jury in Practice Court.[^2]

[94] On October 31, 2024, in Jordan Court, the parties were offered a trial date of January 6, 2025. Both Crown counsel and the Applicant's counsel were available, but Ms. Benkartoussa's counsel was not.

[95] On November 12, 2024, during a court appearance, the court was advised that Ms. Benkartoussa's lawyer was not available for any earlier trial dates. The same information was provided to the court during appearances in Jordan Court on November 28, 2024, January 30, 2025, and February 27, 2025.

[96] On November 19, 2024, the trial coordinator requested counsel's updated availability in anticipation of the next appearance in Jordan Court on November 28, 2024. Crown counsel reiterated that the matter could be reassigned to another Crown counsel if earlier dates were available to the court and defence that did not work with her schedule. The Applicant's counsel advised that "mid-April onwards is fine with my schedule." He stated that he had to use the January 6, 2025 dates for another in-custody matter.

[97] On January 30, 2025, Crown counsel sent the following e-mail to defence counsel after the appearance in Jordan Court:

I appeared in Jordan court today to see if earlier dates could be scheduled for this matter. His Honour asked us to continue our discussions off-line. Could you send me your availability between now and September and I will try and find us some earlier trial time. Even if I am not available, the matter can be reassigned. I will accept any earlier dates.

[98] The Applicant's lawyer provided his available dates in response, which included dates in every month in 2025, starting on February 17.

[99] Ms. Benkartoussa's lawyer responded as follows:

At this point, I've already booked and committed myself to other court matters between now and the current trial date. There is not enough space left for me to conduct another jury trial in between.

ii. Analysis

[100] The facts set out above show that the Applicant was not the cause of the adjournment. Further, there is no evidence that there were court dates available prior to January 6, 2025, when both Crown counsel and the Applicant's counsel were available. Therefore, the Applicant is not responsible for the delay in scheduling the trial after the adjournment.

[101] In my view, the Applicant did not acquiesce in the delay related to the adjournment. While the Applicant did not oppose Ms. Benkartoussa's application for an adjournment, neither did the Crown. Given Ms. Benkartoussa's personal circumstances, opposing her request for an adjournment would have been futile. I also note that the Applicant's counsel raised section 11(b) concerns on the day that the adjournment was granted.

[102] Therefore, the delay between January 6 and September 29, 2025 cannot be attributed to the Applicant.

f. Net Delay

[103] In light of the foregoing, the total defence delay is approximately 11 months (3 months and 15 days + 7 months and 16 days). This results in a net delay of 41 months and 28 days (52 months and 28 days – 11 months), i.e., 11 months and 28 days above the applicable presumptive ceiling.

[104] I note that had the trial proceeded as initially planned on October 7, 2024, and lasted two weeks, as anticipated, the total delay would have been 41 months and 5 days (from May 13, 2021 to October 18, 2024), and the net delay would have been only 5 days above the presumptive ceiling (41 months and 5 days – 11 months of defence delay).

g. Exceptional Circumstances

[105] As stated above, the Crown argues that the scheduling conflicts and the delay caused by the Applicant's co-accused in this joint prosecution constitute a discrete exceptional circumstance. This submission requires the consideration and application of the test set out in Tran (see paragraph 51 above).

[106] Whether the joint trial is being undertaken in the interests of justice. As discussed further below, I am of the view that the joint prosecution was undertaken and pursued in the interests of justice until the adjournment of the first trial in October 2024. Given the overlapping charges, complainant and factual background between the cases against the Applicant and Ms. Benkartoussa, a single trial would conserve judicial resources, avoid inconsistent verdicts, and avoid the complainant and other witnesses having to testify more than once.

[107] Whether the delay has arisen because of the joint trial. Most of the delay in this case has arisen because of the joint trial, principally because of scheduling conflicts and long periods of unavailability on the part of defence counsel. In the majority of instances of delay, the unavailability was on the part of counsel for Ms. Benkartoussa.

[108] Whether the delay is unforeseen or reasonably unavoidable. Scheduling conflicts are, to a certain extent, reasonably unavoidable in joint trials involving more than one defence counsel. Further, Ms. Benkartoussa's personal circumstances which led to the adjournment of the joint trial were reasonably unforeseen and reasonably unavoidable.

[109] Whether the Crown could not reasonably have ameliorated the delay. In my view, this is the element that the Crown has failed to establish. As noted in the case law, while the Crown may have a legitimate interest in having jointly charged accused tried together, that interest must be balanced against the accused's constitutional right to be tried within a reasonable time. The Crown must remain vigilant that its decision does not compromise the section 11(b) rights of an accused, and there may come a time when the interests of justice are no longer served by proceeding jointly because section 11(b) rights are in jeopardy. This is what happened in this case.

[110] As stated above, the 30-month presumptive ceiling had been reached by the time of the first trial date. While Ms. Benkartoussa's application for an adjournment was both unforeseen and unavoidable in the circumstances, it soon became clear that the rescheduling of the joint trial in a timely manner was not going to be possible because of the unavailability of Ms. Benkartoussa's counsel for an extended period of time. Given the delay that had already accrued, it was not acceptable to add another year of delay, especially since the Applicant's lawyer was available three months after the initial trial date and more than 8 months before Ms. Benkartoussa's counsel. This is a case where the Applicant was being held hostage by the unavailability of his co-accused's counsel.

[111] I find that in October 2024, the joint prosecution of the Applicant and Ms. Benkartoussa was no longer in the interests of justice because it necessitated a long adjournment that compromised the Applicant's section 11(b) rights. See R. v. Bushey, 2023 ONSC 1381 at para. 42 ("Bushey"). It was within the control of the Crown to eliminate further delay of the Applicant's trial past the presumptive ceiling and to prevent the violation of his section 11(b) rights by taking the reasonable step, at this stage of the proceeding, of severance. See Bushey at para. 43. While some period of delay above the presumptive ceiling may have been reasonable in this case, a year above the ceiling cannot be justified as reasonable. See Ny at para. 119.

[112] While it is true that the Applicant did not bring a severance application, the failure to ask for severance does not transform an unreasonable delay into a reasonable one. See Ny at para. 122. The Crown could reasonably have ameliorated the delay by severing the accused persons and proceeding against the Applicant separately. This is not a case like Tran where the delay in issue was a mere nine days.

[113] Thus, I conclude that the Crown has failed to establish that the delay that was caused as a result of the prosecution of a joint trial constitutes an exceptional circumstance.

h. Conclusion

[114] Given that exceptional circumstances have not been established, the delay in this case is 41 months and 28 days, i.e., 11 months and 28 days above the applicable presumptive ceiling. Therefore, the delay is unreasonable and a stay must follow.

D. Disposition

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

Vermette J.

Released: September 3, 2025

Footnotes

[^1]: Had I considered the two accused collectively, the defence delay would have been from May 9 to September 6, 2022, i.e., 3 months and 28 days. The delay between September 6 and October 24, 2022 was caused by the Crown because both defence counsel were available on September 6, but Crown counsel was not.

[^2]: This appears to be a mistake as September 25, 2025 is a Thursday and the e-mail from the trial coordinator refers to September 29, not September 25. For the purpose of these reasons, I have assumed that the trial is scheduled to start on Monday, September 29, 2025.