Court File and Parties

Court File No.: CR-23-16170 Date: 2025-09-19 Ontario Superior Court of Justice

Between: His Majesty the King – and – J.B., Defendant

Counsel: S. Saunders, for the Crown S. Yeghoyan, for the Defendant

Heard: July 11, 2025

McCarthy J.

Introduction

1The Defendant was convicted of child luring on December 30, 2024.

The Application

2The Defendant now applies for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter"). Section 11(b) guarantees for any person charged with an offence the right to be tried within a reasonable time.

3The seminal Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, provides presumptively reasonable time frames within which a criminal matter must be brought to the conclusion of trial after the information has been sworn – in the case of this court, 30 months. This time frame is referred to as the presumptive ceiling. In cases where the total delay, minus any waived or defence-attributed delay, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. In cases where the delay falls below the presumptive ceiling, the onus lies with the defence to show that the time frame between the charge(s) being laid to the end of trial was nevertheless unreasonable: see Jordan, at paras. 5, 46, 49, and 60.

4In the current application, the total amount of time elapsed from the date the information was sworn to the conclusion of the trial is 31 months and 8 days, without apportioning any delays.

Background and Timeline

5I find that the chronology of events relevant to the application was accurately summarized in the Crown's factum.

6The information was sworn on March 16th, 2022. On that same date, the Defendant appeared in bail court and was released after a bail hearing. The matter was adjourned to March 28th, 2022 for a first appearance in set date court.

7On March 28th, 2022, agent for Defence counsel appeared and adjourned the matter to May 9th, 2022 for disclosure and a Crown pre-trial.

8On May 9th, 2022, agent for Defence counsel appeared and adjourned the matter to June 6th, 2022 for disclosure and a Crown pre-trial.

9In advance of that next event, Defence counsel made a written request for disclosure. The disclosure request made no reference to "metadata" from any cell phone. Item 9 of the disclosure request letter merely requested"all evidence collected from the electronic devices found in J.B.'s home."

10On June 23rd, 2022, the Crown advised Defence counsel that the evidence referred to in item 9 of the disclosure request letter had been provided on June 10th, 2022. Defence counsel did not respond to the Crown to specifically request metadata from any seized devices.

11On June 6th, 2022, agent for Defence counsel appeared in court and advised that a Crown pre-trial was scheduled for June 23rd, 2022. The matter was adjourned to July 4th, 2022, to be spoken to following the Crown pre-trial.

12On July 4th, 2022, agent for Defence counsel appeared. The Crown elected to proceed by indictment. The matter was adjourned to a judicial pre-trial on July 15th, 2022.

13On July 15th, 2022, a judicial pre-trial was held before Justice Magotiaux of the Ontario Court of Justice ("OCJ"). A time estimate was obtained for a preliminary inquiry. The matter was adjourned to August 8th, 2022 for preliminary inquiry dates to be obtained and for the Defendant to make his election as to mode of trial.

14On August 8th, 2022, Defence counsel appeared and filed a Notice of Election. The dates of March 6th to 8th, 2023 were set for the preliminary inquiry. The matter was adjourned to the first date of the preliminary inquiry.

15In advance of the preliminary inquiry, the Crown filed a s. 540(7) application which contained, inter alia, reports from the analysis conducted on the Samsung Galaxy device seized at the Defendant's residence during the execution of the search warrant. In addition, the Crown filed in evidence all screenshots taken by Bonnie Monaghan of the Plenty of Fish and KiK communications. A Zip file containing these screenshots was provided to Defence counsel on February 21st, 2023.

16The preliminary inquiry proceeded before Justice Olver within the scheduled time frame of March 6th to 8th, 2023.

17Following the completion of evidence in the preliminary inquiry, Defence counsel conceded committal and requested an exit judicial pre-trial with Justice Olver.

18Justice Olver advised that he had ample availability the following week. The Crown confirmed availability for the following Tuesday and Wednesday (March 14th and 15th, 2023). Defence counsel advised that he was going to be out of province and was therefore unavailable to appear on those proposed dates.

19Justice Olver then offered the date of April 24th, 2023. Defence counsel advised that he was not available on that date. The court, the Crown, and Defence counsel finally agreed to May 2nd and 3rd, 2023.

20The judicial exit pre-trial proceeded on May 2nd, 2023. The Defendant was committed to stand trial in the Superior Court of Justice ("SCJ"). The matter was adjourned to June 7th, 2023 for an SCJ judicial pre-trial.

21The judicial pre-trial proceeded as scheduled. Justice Christie set the date of May 27th, 2024, for a two-week trial with a judge and jury, followed by one week for a potential lost evidence application. The Samsung Galaxy S3 device seized at the Defendant's residence had been destroyed in a fire at the Durham Regional Police's property bureau.

22On April 3rd, 2024, the parties appeared in court to confirm their readiness for trial. For the first time, Defence counsel made a specific request for disclosure of metadata from the Defendant's cell phone. The Crown noted that there was no previous indication of this request and suggested that Defence counsel follow up directly with the assigned trial Crown. Defence counsel then advised that the requested disclosure would not delay the trial.

23On April 10th, 2024, Defence counsel reached out to assigned Crown counsel requesting "disclosure of the metadata in relation to the messages that the Crown is relying upon that were allegedly sent by J.B., his cell phone and any other device purportedly used by our client."

24This email represented the first written request the Crown received for any kind of metadata disclosure.

25In response, the Crown sought clarification as to what exactly was being requested. Defence counsel responded as follows"[a]s discussed today, seeking the meta data of the messages that were allegedly sent to and from my client's purported phone which has since been destroyed as a result of the fire at the property bureau."

26The Crown responded by arranging for E-Crimes to put all raw data from the Samsung device as well as the Cellebrite reader on a USB to be provided to the Defendant. On May 16th, 2024, the Crown advised Defence counsel that this disclosure was available to be picked up at the Crown's office or could be dropped off at Defence counsel's office.

27Defence counsel attended the Crown's office on May 17th, 2024, but picked up materials relating to another matter instead of the USB containing the disclosure.

28The Crown was not notified of this mix up until 8:05pm that same night and was therefore unable to remedy the issue until May 21st, 2024, when the Crown delivered the USB to Defence counsel's office.

29On May 22nd, 2024, Defence counsel appeared in court and advised of his client's re-election to a judge-alone trial. He confirmed receipt of the USB but advised that he was not able to access the contents. The Crown offered that it was doing everything possible to assist counsel in accessing the USB. It was confirmed that Defendant's counsel was already in possession of the Cellebrite report.

30Defence counsel confirmed that the metadata related to a potential lost disclosure application. The matter was adjourned to the first date of trial.

31On May 27th, 2024, the parties appeared in the SCJ for the first day of trial. The Defendant sought an adjournment of the trial to allow time for the metadata from the Samsung device to be analyzed by an expert. The Crown opposed the adjournment, but argued that in the alternative, the trial could be adjourned one week to allow for the analysis to be done. Ultimately, the trial was adjourned to June 3rd, 2024, to permit the expert analysis.

32On June 3rd, 2024, the trial commenced with the evidence of Bonnie Monaghan. At the outset of trial, Defence counsel advised the court that the expert report would not be available until June 10th, 2024.

33As a result, the Crown agreed to defer calling Detective Constable ("DC") John Powell and Fraser Phillips, who both analysed the Samsung device, until June 11th, 2024.

34With the change in the schedule, it was agreed that the Court would not sit on June 5th, 6th, or 10th, which were all previously assigned trial dates.

35The Crown also agreed that DC Powell could begin giving evidence on June 7th, but that cross-examination could be deferred until after receipt of the Defence expert's report.

36The trial continued June 4th, 2024 with Bonnie Monaghan completing her evidence.

37The trial was adjourned to June 7th, 2024 and continued with the evidence of William Vine.

38At the end of that trial day, Defence counsel had not finished cross-examining Mr. Vine. Both the Crown and the court were agreeable to continuing via Zoom on Monday, June 10th, in an effort to complete Mr. Vine's evidence, with Mr. Vine testifying from the Oshawa courthouse. Defence counsel was not agreeable. The court made it clear that if the trial did not continue on Monday June 10th, 2024, any s. 11(b) issue would have to be the responsibility of the Defence. The Defence did not raise any s. 11(b) concerns.

39The trial continued June 11th, 2024. The evidence of Mr. Vine and Roy Swindells was completed. The evidence of DC Powell commenced on June 12th, 2024, and was completed on June 13th. Fraser Phillips then completed his evidence, and the Crown closed its case.

40The court suggested the date of August 1st, 2024, for submissions if the Defence elected not to call any evidence.

41The Crown was available on that date, but Defence counsel was not. The court again raised s. 11(b) concerns and Defence counsel stated that the presumptive Jordan date was not until late September. It was therefore agreed that the matter would proceed in the following fashion: Defence evidence would be called on September 3rd, 2024, via zoom, and submissions would be made on September 6th, 2024, with written submissions provided in advance.

42On September 3rd, 2024, the Defence called its expert Matthew Musters ("Musters") to testify. His report focused on the screenshots taken by Bonnie Monaghan of the messages on Plenty of Fish and KiK that police obtained from Ms. Monaghan's phone. In cross-examination, Musters advised that he had been provided with no other materials for use in the preparation of his report. Musters also confirmed that the only data he analyzed was that set out on the chart contained in his report.

43That chart did not include any metadata extracted from the Samsung device. The only items received and analyzed by Musters were the two ZIP files containing screenshots of the messages exchanged between Monaghan and the Defendant. These ZIP files were only provided to Musters on May 27th and 28th, 2024, even though they had been in the possession of Defence counsel since before the preliminary inquiry in March 2023.

44The parties were scheduled to make submissions on September 6th, 2024. In advance of this date, Defence counsel advised the Crown and the trial coordinator of the SCJ that he was not able to proceed on that date.

45The matter was adjourned to September 26th, 2024 for submissions. The court was cognizant of s. 11(b) and adjourned the matter with the following comment: "if that works for everybody and there's no 11(b) issue."

46The Defendant did not raise any s. 11(b) concerns at this time.

47On September 26th, 2024, the parties appeared before Justice McCarthy to schedule a new date for submissions, as the court was no longer available on September 26th. The matter was adjourned to October 10th, 2024 for submissions. No s. 11(b) issue was raised by Defence counsel.

48On October 10th, 2024, the parties appeared before Justice McCarthy. Both the court and the Crown were ready to proceed with submissions. Defence counsel was not able to proceed and requested an adjournment. The court raised the s. 11(b) concern. While Defence counsel did not have instructions to waive s. 11(b), he clearly confirmed that the Defence was not able to proceed that day. The matter was adjourned to October 24th, 2024 for submissions.

49On October 24th, 2024, submissions were made and Justice McCarthy reserved judgment. At this time, the Defendant raised s. 11(b) concerns for the first time and advised of his intention to pursue a s. 11(b) application. On December 30, 2024, the court found the Defendant guilty of the charges on the indictment and a conviction was entered.

The Jordan Framework

50A s. 11(b) application requires the court to apply the Jordan framework.

51The court first calculates the total delay.

52The total delay is simply the time period from the laying of the charges to the actual or anticipated end of trial – the end of evidence and argument.

53Net delay is then calculated by subtracting defence delay from the total delay. The defence delay is comprised both of delay that is waived by the defence and delay that is attributable to the defence.

54If the net delay exceeds the presumptive ceiling, the Crown may then establish the presence of exceptional circumstances. Exceptional circumstances are comprised of discrete events and particularly complex cases. The delay caused by discrete events are subtracted from the net delay to arrive at the "remaining delay."

55If the remaining delay still exceeds the presumptive ceiling, the court must consider whether the matter was of such complexity that the time the case has taken is justified and the resultant delay reasonable. And if the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Post-Jordan Case Law

56Jordan, and the case law that has post-dated it, have established various principles and considerations for a court hearing an application of this nature.

57The accused must raise the unreasonableness of trial delay in a timely fashion. Even in instances when the delay issue has crystallized mid-trial (such as when continuation dates have been added), the accused is required to act diligently and bring the application before the end of the trial: R. v. J.F., 2022 SCC 17, [2022] 1 SCR 330, at paras. 3, 34-36, and 51-52.

58Failing to raise the s. 11(b) issue in a timely fashion and before the end of the trial deprives the Crown and the court the opportunity to take steps to prioritize the matter. To make a finding that the timeliness of raising this issue could have mitigated the delay, there must be support in the factual record or within the trial judge's knowledge of his or her own jurisdiction, which allows him or her to take judicial notice that the matter could have been accommodated sooner: R. v. Vallotton, 2024 ONCA 492, at paras. 29-31; R. v. Mengistu, 2024 ONCA 575, at paras. 38-44.

59Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not: Jordan, at paras. 63-65.

60To attribute delay to the defence does not require that the whole of the period of delay at issue to be entirely caused by the defence. In some cases, it is fair and reasonable to apportion delay as between the parties: R. v. Boulanger, 2022 SCC 2, [2022] 1 SCR 9, at para. 10.

61While defence counsel does not have to hold themselves in a state of perpetual availability, scheduling requires reasonable availability and reasonable cooperation. Generally, when a date is available to the Crown and the court, but refused by defence counsel, aside from time required to legitimately respond to the charges, this is defence-caused delay: R. v. Cowell, 2019 ONCA 972, 151 O.R. (3d) 216, at para. 32, leave to appeal refused, [2020] S.C.C.A. No. 54, citing R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23.

62When an adjournment is caused by the defence, depending on the circumstances, there should be an account of both the delay between the original start date for the matter to the new start date, and any ripple effect arising from the adjournment: see R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at paras. 31-42.

63Whether a case took markedly longer that it should have is an important consideration on a s. 11(b) application. The court must bear in mind that in reality, resources are finite, and no case is an island to be treated as if it were the only case with a legitimate demand on court resources: R. v. S.A., 2024 ONCA 737, 174 O.R. (3d) 81, at para. 41, leave to appeal refused, citing R. v. Allen, 92 O.A.C. 345 (C.A.), at para. 27, aff'd , [1997] 3 SCR 700.

Discussion

64In the present case, the total delay from the laying of the information on March 16, 2022, to the end of argument at trial on October 24, 2024, was 954 days. This translates into 31 months and 8 days. September 16, 2024 was 30 months from the date of the laying of the information. This is therefore the Jordan date before which the trial of the action should have been completed.

Attribution of Delay

March 8th, 2023 to May 2nd, 2023

65March 8th, 2023 to May 2nd, 2023: this period of delay, totalling 55 days, must be attributed to the Defence. Following the preliminary inquiry, both the court and the Crown were in a position to address committal on March 8th, 2023. The Defence requested an exit pre-trial with Justice Olver of the Ontario Court of Justice, thereby delaying formal committal. The Crown and the court were available for multiple dates following March 8th, including the week following and April 24, 2023 but the Defence was not. The judicial exit pre-trial took place on May 2nd, 2023, after which there was a committal.

66The preliminary inquiry finished in time. The Crown was ready for committal. It was the Defendant who requested a judicial exit pre-trial. There is no evidence that this is a mandatory requirement or even a customary step in Durham region. There is no reason why this delay should be divided between the parties. I find that the time frame between March 8th, 2023 and May 2nd, 2023 amounts to defence delay. The 55 days should be deducted from the 954-day total delay to bring the net delay down to 899 days (just over 29.5 months), which itself is below the presumptive Jordan ceiling.

June 14th, 2024 to October 24th, 2024

67I also find that the entire period between June 14th, 2024 (originally scheduled as the end of trial) and October 24th, 2024 (the actual end of trial) falls at the feet of the Defence. This amounts to 132 days. There is no reason to believe, and certainly no evidence to support, the notion that the trial would not have been conducted and fully completed within the initially allotted time frame. This original time frame would have seen the trial conclude well within the 30-month presumptive ceiling. The Defendant's request for an adjournment on May 27th, 2024, created a ripple effect which effectively derailed the trial from its set schedule. Not only did the parties lose a solid week of sitting, but they also lost a number of planned sitting days because it was impractical for certain witnesses (Fraser Phillips and DC Powell) to testify or be cross-examined until after the Musters report was available for the defence to review. This led to the loss of three more sitting days: June 5th, 6th and 10th, 2024.

68Once the matter leaked out of its previously scheduled three-week window, the ripple effect became understandably more pronounced, and it became difficult to find days for the Defence to call its evidence and for submissions to take place. It bears mentioning that the Crown was able to complete its case by June 13th, 2024, which was within the time frame originally scheduled for the trial and well below the Jordan presumptive ceiling.

69It was Defence counsel who was not available on the offered date of August 1st, 2024. Again, it was Defence counsel who was not available or willing to proceed with submissions on September 6th, 2024, an event which would have marked the conclusion of the trial, within the presumptive 30-month ceiling. It is worth noting that the court made itself available on September 3rd, 2024, for the Defence's case, and again on September 6th, 2024, for submissions, during a judicial conference week which was outside of normal court sitting time.

70Just as Defence counsel argues that he cannot be expected to keep his calendar perpetually open to accommodate multiple dates for any particular matter, so too should there be no expectation that the Crown, the courts, and the judiciary should leave countless dates open to accommodate for adjournments and new dates on one matter. I can fairly take judicial notice that judicial schedules are finalized 18 months out. Those schedules are filled to the brim with matters other than criminal cases. The proper administration of justice demands that scheduled matters, waiting for their turn before the courts, should not be routinely displaced and rescheduled to accommodate adjournment requests and counsel's scheduling issues on one case, especially when, as here, the s. 11(b) concern was not even raised by the Defence until the presumptive ceiling had been reached.

71I also find that the entire basis for the May 27th, 2024 adjournment request by Defence counsel appears now in hindsight to have been overstated. At the very least, the adjournment has been shown to have been completely unnecessary and avoidable.

72One, the request for "metadata" was not even made until April 10th, 2024. There is nothing in the evidentiary record to establish that the metadata was requested before this date. Defence counsel should have been aware for some time that there had been no disclosure of this metadata. The ZIP files containing the screen shots from the phone were produced in advance of the preliminary inquiry. Defence counsel also would have understood that there was no evidence of communications found on the Samsung Galaxy device and that the screenshots themselves did not contain any metadata.

73Two, the Crown made efforts to provide the metadata to Defence counsel immediately after the request was received. The Crown then redoubled its efforts, first when it came to light that Defence counsel had picked up the wrong package from the Crown's office, and next after it learned that Defence counsel was having difficulty opening the USB.

74Three, the screenshots of the communications between Ms. Monaghan and the Defendant were not provided to the expert witness Mr. Musters until May 27th and 28th, 2024. There is no evidence that the expert witness required the metadata to complete his report, and yet the entire basis of the adjournment request on the morning of May 27th was that such metadata was required for analysis. There is no evidence that the USB was provided to Musters before May 27th, 2024. What Musters received was what the Defence had always had – the screenshots of the incriminating messages between the Defendant and Monaghan.

75Finally, the Musters report and opinion did not even touch on the metadata or any analysis of it. Yet the trial was adjourned from May 27th to June 3rd, 2024 for the sole purpose of metadata analysis.

76The combination of the following must fall at the feet of the Defence: Defence counsel's unnecessary adjournment request of May 27th, 2024, the vacated trial dates it brought about, the ripple effect produced by the matter not being completed during the originally allotted time frame, and Defence counsel's unavailability or unwillingness to proceed on offered dates (August 1st, 2024, September 6th, 2024, and October 10th, 2024) for the completion of trial. I would characterize the 132 days between June 14th and October 24th, 2024 to defence delay which should be subtracted from the total delay to arrive at the remaining delay.

77Therefore, there are a total of 187 days (132 + 55) which I would attribute to defence delay. When that is subtracted from the total delay of 954 days, 767 days remain. This translates into just over 25 months between the laying of the information and the conclusion of trial, which is well below the presumptive Jordan ceiling.

Failure to Raise 11(b) in a Timely Fashion

78The Defendant did not raise the unreasonableness of trial delay in a timely manner. Although there were multiple adjournments granted and frustrated attempts to obtain new dates, the Defendant never raised the issue of s. 11(b) until the very last day of trial, which was October 24th, 2024. The opportunities to raise this issue were many: on the date of the first adjournment (May 27th, 2024); when the Crown closed its case and the matter was clearly not going to finish by the initially scheduled end of trial (June 14th, 2024); when the Defence stated that it was not available to present its evidence on the offered date of August 1st, 2024; when the Defence finished its evidence on September 3rd, 2024; when the Defence advised that it was not prepared to proceed with submissions on September 6th, 2024; and when the court was unable to hear the submissions on September 26th, 2024.

79As a judge of the SCJ with nearly 14 years' experience and one who is intimately familiar with the high priority given to the completion of criminal cases in Central East Region (largely to the detriment to civil cases), I can fairly take judicial notice that had the Defence raised the s. 11(b) issue at any time before the final day of trial, the court would have easily found dates, resources, a court room, and staff well before the 30-month presumptive Jordan date in order to conclude the trial.

Defence Efforts to Expedite

80Finally, and overall, the Defence attitude to the delay up to the final day of trial on October 24th, 2024 could best be described as indifferent or complacent. There is no evidence which could establish a demonstrable and sustained effort on the part of the Defence to have the case moved along more expeditiously.

The Burden Lies on the Defence

81With the net delay being below the presumptive Jordan ceiling, it falls on the Defence to demonstrate that the delay was nonetheless unreasonable.

82It has failed to do so.

83When the presumptive ceiling has not been exceeded, Jordan makes it clear that a stay will be rare and granted only in the clearest of cases: see Jordan, at paras 82-83.

84There was nothing unusual or exceptional about this case that required it to be prioritized. As noted above, the Defence took no meaningful steps to expedite the proceedings. There is no basis to find that the case took markedly longer than it reasonably should have. The Crown did its part to ensure that the case proceeded expeditiously. The preliminary inquiry took place on time. There was no request for the earliest possible trial date. The Crown and the court were ready to proceed on May 27th, 2024, and absent the adjournment and the ripple effect brought about by the delay, the matter would have concluded by June 14th, 2024.

85I can fairly take judicial notice that the case was scheduled and conducted in a manner consistent with other similar cases in the region. On a "bird's eye view" assessment as called for by the Court of Appeal in R v. Musclow, 2024 ONCA 565, 173 O.R. (3d) 481, at para. 3, and, considering the delays brought about by actions or decisions of the defence, the entirety of the proceedings took place within a reasonable time.

Disposition

86For the reasons set out above, I find that the there has been no infringement of the Defendant's s. 11(b) Charter rights. He received his trial within a reasonable time.

87The application is therefore dismissed.

McCarthy J.

Released: September 19, 2025

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.