COURT FILE AND PARTIES

Court File No.: CR-25-127

Date: 2025-09-26

Ontario Superior Court of Justice

Between:

His Majesty the King

J. White, for the Crown

- and -

Paramjit Singh Chatha

G. Henderson, for the Applicant

Heard: June 25 and August 5, 2025

11(B) Motion Ruling

Mirza J.

OVERVIEW

[1] The Applicant, Paramjit Singh Chatha, brought a s. 11(b) motion claiming unreasonable delay and seeking a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms. The motion was heard on June 25 and August 5, 2025.

[2] The delay in this case from the date of the formal charges to the completion of the trial is 1,179 days, approximately 38 months and 22 days.

[3] The Applicant was charged on November 27, 2022, that he committed the following offences in relation to his ex-wife:

i) Assault (x1), contrary to s. 266 of the Criminal Code; and

ii) Choking (x2), contrary to s. 267(c) of the Criminal Code.

[4] He was later charged in February 2023 with:

i) Sexual assault causing bodily harm (x2), contrary to s. 272(1)(c) of the Criminal Code.

[5] After a preliminary inquiry, he was committed to stand trial for one count of sexual assault causing bodily harm. The current charge on the Indictment states:

That he, between on or about the ninth day of January, 2014 and the twelfth day of December, 2020, at the City of Mississauga, in Peel Region, did sexually assault AKC and in doing so choke, suffocate or strangle her contrary to Section 272(1)(c.1) of the Criminal Code of Canada.

[6] The Applicant's Superior Court trial is set for February 9, 2026. It is expected to take seven days, ending on February 18, 2026.

[7] There are pre-trial motions scheduled for October 6 and 7, 2025: voluntariness and s. 10(b) Charter issues related to the accused's statement, and a s. 276 motion for directions.

[8] The complainant was interviewed on video by the police in Punjabi on November 26, 2022.

[9] The Crown disclosed the video-statement 23 months later, on November 1, 2024.

[10] Further, the accused gave a video-statement in Punjabi to the police on November 27, 2022. The video-statement was disclosed on October 13, 2024.

[11] However, a translated version of the accused's video-statement had still not been disclosed as of the completion of the oral argument on the s. 11(b) motion on August 5, 2025. This is despite the 11(b) motion having commenced on June 25, 2025. This is 32 months and 10 days since the charges were laid and the accused's video-statement was provided to the police.

[12] In addition, the Crown had still not disclosed the complainant's video-relevant statement made on December 20, 2020, as well as a related police domestic violence report questionnaire. These are from a prior investigation which the Crown acknowledges may be relevant to the Applicant's trial.

[13] The Crown did not provide a reasonable explanation for the disclosure delays overall.

[14] For the reasons that follow, the 11(b) motion is granted and the charges are stayed.

SUMMARY OF EVENTS AND COURT PROCEEDINGS

[15] For this section the relevant events are summarized. I have reviewed the factums and charts submitted by the parties which are filed as exhibits on the motion. In this part court dates are underlined.

[16] On November 26, 2022, the complainant, the accused's ex-wife, provided a video-statement to the police alleging serious intimate partner violence. She spoke in Punjabi, and the interviewing officer also spoke in Punjabi.

[17] The Applicant was arrested on November 27, 2022. The Applicant provided a videotaped statement to the police. He spoke in Punjabi, and the interviewing officer also spoke in Punjabi.

[18] The Applicant's bail hearing was on November 27 and 28, where a Punjabi interpreter was used.

[19] The Applicant's first court appearance was set for December 2, 2022.

[20] On December 2, the Defendant attended at the Crown's office in person to request a hard copy of the disclosure. He was advised that the disclosure was not ready. His phone number was taken so that he could be contacted once the disclosure was ready.

[21] On December 2, 2022, the accused also attended court in-person and was advised some of the disclosure was ready. The case was adjourned to February 17, 2023. The Defence did not provide a transcript of this appearance but the parties agreed on consent that the notes on the court Information (charging document) explains this appearance and that a transcript was not required.

[22] On December 28, 2022, the Applicant retained Defence counsel, Mr. Locke.

[23] On December 28, 2022, the Defence sent a disclosure request to the Brampton Virtual Crown email, seeking the scope number.

[24] On December 28, 2022, there was a court appearance where the Crown stated that they would have to defer an election, since it was still being "vetted". This is a reference to the disclosure having to be vetted before being provided to counsel. The case was remanded to February 17, 2023.

[25] The court information document was not before the court on this date for this matter. As a result, the charges subject to this application were addressed during another proceeding for the Defendant where Defence counsel advised that February 17, 2023, is the date these charges were to return. Disclosure was not ready. This context was agreed to at the oral hearing.

[26] On February 7, 2023, a replacement information with one count of sexual assault cause bodily harm was sworn. The accused was originally charged with choking and assault. On this date, for the same allegations, the charges were re-laid to sexual assault causing bodily harm.

[27] On February 17, 2023, the Crown was not ready to elect, and disclosure was not ready. The Crown said it was being vetted. The matter was adjourned to April 14, 2023, on consent for disclosure. Defence counsel said that they were retained to review the disclosure and conduct a Crown pre-trial (CPT).

[28] On April 14, 2023, the Crown was still not ready to elect. The Defence asked for the disclosure, but it was not ready. The case was adjourned to June 9, 2023.

[29] On April 14, 2023, the Defence also sent a second e-mail disclosure request to the Brampton Virtual Crown.

[30] On May 9, 2023, the Defence received initial disclosure through the Digital Disclosure Hub.

[31] The complainant's video-statement and the accused's video statement were not disclosed in the initial disclosure. This was over five months since the accused had been charged.

[32] On June 9, 2023, three court information documents were before the court. The Defence indicated that they had received initial disclosure for the choking and assault charges on May 9, 2023. However, no disclosure had been provided for the mischief charge. (At the hearing I was told that the mischief charged related to the same complainant. It is not the subject of this motion but is raised at some of the court appearances).

[33] Defence counsel requested a return date to August 11, 2023, because they would like all disclosure before taking next steps, describing the matters as related.

[34] On August 11, 2023, three court information documents were again before the court. Defence counsel said that a Crown pre-trial (CPT) was set for October 6, 2023, the first date available on the digital scheduling site. The matter was adjourned to October 13, 2023. The video-statements had still not been disclosed.

[35] On September 25, 2023, the Defence sent a letter requesting further disclosure, including a request for the complainant and accused's video-statements to police. (There is not a Crown response filed). This was about ten months since the charges were filed.

[36] On October 6, 2023, Mr. Locke conducted a CPT. The complainant and accused's videotaped statements remained as outstanding disclosure.

[37] The contents of this CPT regarding efforts to advance the outstanding disclosure are not explained in the Defence motion materials or Crown response.

[38] On October 13, 2023, at the court appearance the Crown confirmed that the mischief charge would resolve by restitution. The other charges that are the focus of this motion would require a Judicial Pre-Trial (JPT). The case was adjourned to December 15, 2023 and the Defence said that it would set a date for a JPT in the interim. Disclosure was not mentioned. However, it is not contested that the complainant and accused's video-statements were still outstanding at this time.

[39] On November 14, 2023, a JPT was conducted in the Ontario Court of Justice. The complainant and accused's videotaped statements to police remained as outstanding disclosure. The contents of the non-privileged disclosure discussions at the JPT are not explained in the Defence or Crown motion materials.

[40] On December 15, 2023, the Defence said that the JPT had been held and they needed time to set a preliminary inquiry date.

[41] The Crown suggested a return date of February 9, 2024. The Crown did not indicate that an earlier return date should be set.

[42] On January 4, 2024, through the Trial Coordinator, Defence counsel set a date for Mr. Chatha's preliminary inquiry for November 1, 2024.

[43] At the time the preliminary inquiry was scheduled, the complainant and accused's videotaped statements to police remained as outstanding disclosure.

[44] On February 9, 2024, the Defence requested in writing via email the outstanding video disclosure statements of the complainant and the accused. There is no Crown response to this disclosure request filed in this record.

[45] On February 9, 2024, at court the Defence requested more time to confirm restitution paid to facilitate withdrawal of the mischief charge. The charges for the other charges were adjourned to March 5, 2024. A preliminary inquiry date of November 1, 2024, was put on the record. The Defence said that the accused elects judge and jury. The March 5th date was set for Defence counsel to file their election in writing. A Punjabi interpreter was ordered. Disclosure was not mentioned.

[46] On March 5, 2024, the preliminary inquiry date and election were confirmed on record. The outstanding video disclosure was not mentioned by either the Crown or the Defence. The mischief information was adjourned to March 19, 2024.

[47] On October 1, 2024, the Defence sent another written disclosure request seeking the video-statement of the complainant. There is no Crown response in writing in their record.

[48] On October 13, 2024, the Crown sent the Defence a notification that the accused's videotaped statement to police and body-worn camera footage were available through the digital platform evidence.com.

[49] On October 23, 2024, the Defence sent a letter explaining that the complainant's videotaped statement to police had not in fact been disclosed through the digital platform of evidence.com. Below is an excerpt of the Defence letter:

1. The videotaped statement of the complainant, Amanpreet Chatha;

On October 13, 2024, I received further disclosure through evidence.com. The notification indicated that the disclosure included "BWC x3, Acc/Vic Stmt". The material I was able to download included three body-worn camera (BWC) videos and Mr. Chatha's statement to the police. Notably, it did not include Ms. Chatha's statement, which remains outstanding.

Mr. Chatha's matter is scheduled for a preliminary inquiry on November 1, 2024. Consequently, this disclosure request is a matter of utmost urgency. At some point, I may take the position that late disclosure will afford insufficient time for me to prepare.

[50] On October 24, 2024, a translated transcript of the complainant's statement was completed.

[51] On October 30, 2024, the translated transcript of complainant's video-statement was disclosed to the Defence through the Digital Disclosure Hub.

[52] On October 30, 2024, Defence counsel called the "R1" Crown to conduct an urgent CPT and reiterated the outstanding disclosure of the original video-statement in Punjabi.

[53] On November 1, 2024, at 9:13 a.m., the Defence received a further notification that the complainant's videotaped statement to police was available through evidence.com. This time, the videotaped statement in Punjabi was available.

[54] I pause here to note that this core video-disclosure (and translated transcript) occurred almost two years after the charges.

[55] On November 1, 2024, the preliminary inquiry before Justice Renwick was adjourned because the complainant's video statement had only been disclosed that morning at 9:13 a.m. The Defence indicated that their client needed an opportunity to review the videotaped statement (in Punjabi) and give instructions to counsel before cross-examining witnesses. Mr. Chatha does not read English. The Crown stated that it looked like it wasn't disclosed because the Crown was waiting for a translation. The Crown did not oppose the adjournment.

[56] The preliminary inquiry was adjourned to January 15, 2025.

[57] The Defence stated that s. 11(b) was in issue and the accused wanted to proceed.

[58] On January 13, 2025, the assigned Crown advised the Defence that the Crown would be bringing an application for the complainant's video-evidence to be admitted pursuant to s. 540(7) of the Criminal Code. The Crown advised that the Crown would oppose an application to cross-examine the complainant. If the complainant was ordered to testify, the Crown would bring an application for testimonial aids.

[59] On January 13, 2025, Defence counsel advised the Crown that the application would be opposed.

[60] On January 14, 2025, the Crown served and filed the application pursuant to s. 540(7) of the Criminal Code. The Crown advised that it would not be pursuing an application for testimonial aids.

[61] On January 14, 2025, Defence counsel served and filed a response to the Crown's application.

[62] On January 15, 2025, the Applicant's preliminary inquiry proceeded before Justice Witkin of the Ontario Court of Justice.

[63] Both parties' motion records state that the preliminary inquiry judge dismissed the Crown's application pursuant to s. 540(7). At the oral hearing, the Defence submitted that Witkin J. accepted that the Defence should not be deprived of cross-examination even if the video-statement was admitted as evidence in chief. At the 11(b) motion hearing the Crown did not contest this context. The accused was committed to trial on one count of sexual assault.

[64] On January 15, 2025, Mr. Chatha's preliminary inquiry was not completed. The preliminary inquiry was scheduled to continue on February 5, 2025.

[65] During the evidence heard on January 15, 2025, the complainant's initial statement to police recorded on a body-worn camera (BWC) took on importance. That statement is different from the video-statement taken at the police station in November where a translation had been sought and was disclosed on the first preliminary hearing date. This body camera statement was also in Punjabi. On January 30, 2025, a translated transcript of this body camera statement was disclosed by the Crown.

[66] I pause to observe that this step of translating this body camera statement from of the complainant in a short period indicated that the Crown was able to prioritize the translation. The Crown did not further explain this circumstance at the 11(b) motion.

[67] On February 5, 2025, the preliminary inquiry continued. Mr. Chatha was committed to stand trial in the Superior Court of Justice.

[68] The Crown contacted the Trial Coordinator to schedule a Superior Court JPT.

[69] On February 10, 2025, a Superior Court JPT was confirmed for February 13, 2025.

[70] On February 11, 2025, the Crown and Defence served and filed their Judicial Pre-Trial Forms. The Defence wrote on their JPT form that there was outstanding disclosure of the accused's translated statement well as the complainant's December 20, 2020 statement from a prior investigation. The Defence requested disclosure of the December 20, 2020 statement, and the related Domestic Violence Risk Management (DVRM) Report. In the s. 11(b) section of the form, the Defence states there are significant delays with disclosure and confirmed that a s. 11(b) motion would be brought. This put the Crown on further notice of the disclosure and delay issues.

[71] On February 13, 2025, the Crown and the Trial Coordinator exchanged emails about the late filing of the JPT Form.

[72] On February 13, 2025, Justice Stribopoulos adjourned the Superior Court JPT to February 19, 2025. Forms were filed late by everyone. The Defence said that in effort to expedite, a JPT was set by both sides but that resulted in shorter notice of the filing of forms. The Defence and Court were prepared to proceed given 11(b) concerns. The Crown was not ready to proceed. The case was adjourned to February 19, 2025.

[73] On February 19, 2025, the Superior Court JPT was completed, and trial dates were set.

[74] The court stated that the following trial dates were offered:

• April 7, 2025;
• July 28, 2025;
• September 29, 2025;
• October 20, 2025;
• January 12, 2026;
• January 19, 2026;
• January 26, 2026; and
• February 9, 2026.

[75] The Crown said that they were "available" for all of the dates. The Defence was not available until February 9, 2026. The accused's translated statement had still not been disclosed.

[76] With respect to the April 7, 2025, trial date that was offered, the court offered the following dates to conduct the necessary two pre-trial motions of s. 10 and voluntariness; and s. 276 motion for directions, that required two days of court time: March 13, 14, 15, 24, 25 and 26.

[77] During the scheduling discussion, the Defence stated: "I would only add in relation to the contemplated section 11(b) motion, the first available day as Your Honour indicated was April the 7th for trial, with pre-trial days in March. I was not available due to other professional commitments for the April 7th trial dates. I expect, however, that on the 11(b) motion we will take the position that with less than 60 days, … doesn't provide adequate time to prepare for trial given outstanding disclosure and the number of pre-trial motions contemplated."

POSITIONS

[78] Of the 1179 days of delay, the Applicant concedes 142 days of Defence delay. This was explained during submissions as the period from the trial date offered but declined of September 29 2025 to the anticipated end of the trial on February 18, 2026.

[79] On this point, I find that the correct period would be the period between the trial starting dates: from September 29, 2025, to February 9, 2026. This amounts to 133 days.

[80] The Applicant submits that a period of approximately 23 months to provide Ms. Chatha's videotaped statement and the outstanding translated transcript is unreasonable in a multicultural and multilingual jurisdiction. The police officers interviewed the witnesses in Punjabi. The need for a translated statement of the central witnesses is not uncommon or rare in Brampton. Further, the approximately 22 months to provide the accused's statement, and the continued failure to provide a translated transcript since the Crown intends to rely on the statement at trial, is also unacceptable.

[81] The parties disagree on two broad time periods.

i) Period leading to January 4, 2025 to schedule the preliminary inquiry date

[82] The Applicant submits that the videotaped statements and the associated translated transcripts are core disclosure, and that the delay in setting a preliminary inquiry in the absence of this core disclosure is Crown delay.

[83] The Crown responds that the Defence is responsible for 144 days, or almost five months of delay before setting the preliminary inquiry. If this delay is attributable to the Defence, then the net delay is below the presumptive ceiling of 30 months for a trial in the Superior Court of Justice.

[84] The Crown argues that the Defence did not move diligently to schedule a CPT, JPT and then preliminary inquiry.

[85] The Crown submits that the total Defence delay is 349 days. Therefore, the net delay is 830 days (approximately 27 months and 9 days) bringing the net delay below the presumptive ceiling.

[86] The Crown does not argue exceptional circumstances.

[87] The Defence concedes that it could have moved more rapidly to conduct a CPT but in the total circumstances, this does not change that the Crown has failed to provide core disclosure to this day.

ii) Trial dates and availability

[88] The Defence submits that because the essential disclosure remains outstanding, the July 28, 2025, offer of an earlier trial date cannot be considered a reasonable date for the trial, especially in light of the pre-trial motions that must proceed first.

[89] On February 19, 2025, Mr. Chatha scheduled a date for his trial in the Superior Court of Justice. The first date offered was April 7, 2025. The Crown has conceded that this date provided too little time for the Defence to prepare for trial. The period between February 19, 2025, and April 7, 2025, is 48 days.

[90] The next date offered for trial was July 28, 2025. Defence counsel was not available, and the Crown asserts that this is the date from which Defence delay should start to September 29. If the trial started on July 28, 2025, the Crown submits that this would provide the Defence with reasonable time to prepare for trial. This amounts to a period of 64 days, or approximately two months.

[91] The Defence concedes that the next offered date of September 29, 2025, provides the Defence sufficient time to prepare for trial, subject to factoring if the disclosure of the accused's translated statement continues to be outstanding.

iii) Delay Below the Presumptive Ceiling

[92] The Defence also submits that if the net delay is below the presumptive ceiling, that the time to trial is markedly longer than it should be. There have been unreasonable delays in providing disclosure, and the Crown has offered no explanation for these delays.

[93] In addition, the Defence submits that Mr. Chatha has taken reasonable steps to proceed to trial. Eventually, out of necessity to proceed, he set dates for a preliminary inquiry and trial in the absence of essential disclosure. This was not fair but necessary for the case to proceed.

[94] Essential disclosure was not provided until the morning of the first preliminary inquiry date. The preliminary inquiry was rescheduled on the first available dates.

[95] The Defence submits that in the Superior Court of Justice, essential disclosure remains outstanding even after the 11(b) motion was argued. If the Crown is permitted to work backwards from preliminary inquiries and trial dates offered, and it is not obliged to move forward from the date upon which a person is charged, then the right to timely disclosure is undermined. Delay would be incentivized, not discouraged.

THE LAW

Fundamental Principles

[96] A person is charged with an offence from the time the charge is laid, until the final resolution of the matter and the end of the sentencing process: R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1602; R. v. K.G.K., 2020 SCC 7, 443 D.L.R. (4th) 361, at paras. 26‑27.

For 11(b) purposes, the "charge" means the date the person is charged before the court, or the information is sworn: R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 41-42, citing R. v. Kalanj, [1989] 1 S.C.R. 1594, [1989] S.C.J. No. 71, at p. 1602

[97] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 112-113, the Supreme Court stated that a culture change was required to address delay in the criminal justice system. This includes proactive and preventative problem solving by the Crown to bring the accused to trial within a reasonable time. The Defence is also expected to monitor delay and act proactively:

[112] In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown's perspective, the framework clarifies the content of the Crown's ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary.

[113] The new framework also encourages the defence to be part of the solution. If an accused brings a s. 11(b) application when the total delay (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) falls below the ceiling, the defence must demonstrate that it took meaningful and sustained steps to expedite the proceedings as a prerequisite to a stay. Further, the deduction of defence delay from total delay as a starting point in the analysis clearly indicates that the defence cannot benefit from its own delay-causing action or inaction.

[98] This culture change is required because an unreasonable delay denies justice to the accused, the victims, and the public. In R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 22, the Supreme Court reiterated the fundamental principles of timely trials and s. 11(b):

Timely justice is one of the characteristics of a free and democratic society, and the conduct of trials within a reasonable time is of central importance in the administration of Canada's criminal justice system (Jordan, at paras. 1 and 19). Section 11(b) of the Charter reflects the importance of this principle by guaranteeing any person charged with an offence the right "to be tried within a reasonable time". The purpose of this provision is to protect both the rights of accused persons and the interests of society as a whole (R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 38). At the individual level, trials within a reasonable time are essential to protect the liberty, security and fair trial interests of any person charged with an offence, who, it should be remembered, is presumed to be innocent (Jordan, at para. 20; see also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30, citing Morin, at pp. 801‑3). At the collective or societal level, timely trials encourage better participation by victims and witnesses, minimize the "worry and frustration [they experience] until they have given their testimony" and allow them to move on with their lives more quickly (Jordan, at para. 24, quoting R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1220; see also Jordan, at para. 23). Timely trials also help to maintain public confidence in the administration of justice (Jordan, at para. 25; Askov, at pp. 1220‑21).

[99] All participants in the criminal justice system must take a proactive approach to prevent unnecessary delay by targeting its root causes: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36.

[100] An accused may not benefit from the lengthening of delay where it is caused by the accused's own conduct: R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 6; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11; R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 33.

[101] In the Superior Court of Justice, the presumptive ceiling for delay is 30 months: Jordan, at para. 46.

[102] When the total delay less Defence delay (net delay) exceeds the ceiling of 30 months, the delay is presumptively unreasonable and the trial judge must order a stay of proceedings, unless the Crown is able to establish the existence of "exceptional circumstances" that justify the delay: Jordan, at paras. 46-47.

[103] The Crown does not argue exceptional circumstances in this case to justify any of the delay. Exceptional circumstances are those 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.

[104] Instead, the Crown argues that there are periods that are Defence delay that when factored, bring the net delay below the presumptive 30-month ceiling.

Defence Delay

[105] Two sources of Defence delay are: (i) periods for which the accused waives their 11(b) rights, and (ii) periods of delay that are solely the result of Defence actions: Jordan, at paras. 61-64. Examples are deliberate and calculated Defence tactics aimed at causing delay, which include frivolous applications and requests.

[106] 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: Jordan, at para. 64.

[107] However, this evaluation is subject to a reasonableness inquiry, which leaves room for apportionment where appropriate: R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 8. Scheduling requires reasonable availability and reasonable cooperation but does not, for s. 11(b) purposes, require Defence counsel to hold themselves in a state of perpetual availability: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23.

[108] In R. v. Hanan, 2023 SCC 12, 170 O.R. (3d) 2401, at para. 9, the Supreme Court of Canada rejected a "bright-line rule" that all of the delay until the next available date following Defence counsel's rejection of a date offered by the court must be characterized as Defence delay. Instead, all relevant circumstances should be considered to determine how delay should be apportioned amongst the participants. Where there are multiple problems between the Crown and Defence that cause the delay, apportionment is fair.

[109] All participants in the criminal justice system, including the Defence, must take a proactive approach to prevent unnecessary delay by targeting its root causes: Cody, at para. 36.

[110] In some cases, the circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire period to the Defence: Boulanger, at para. 8.

[111] In Boulanger, the combination of the conduct of Defence counsel bringing the 11(b) application late, the Crown's changes in strategy, institutional delay, and the Court's lack of initiative to recognize the need for a continuation date at an earlier stage despite counsel's request, meant that no other date was offered sooner. As a result, the Court ultimately held that apportionment was "fair and reasonable" in that case: Boulanger, at para. 10.

[112] Defence actions legitimately taken to respond to the charges fall outside the ambit of Defence delay.

[113] The decisions in Boulanger and Hanan factor circumstances where the Crown (or court's) actions (or inactions) caused the need for continuation dates. It is unfair to attribute all of the delay to the Defence for unavailability to accept new dates where the Defence is not the sole cause of the delay or the need for the additional dates.

[114] Also, the Defence must be allowed preparation time, even where the court and the Crown are ready to proceed. Additionally, periods of time during which the court and the Crown are unavailable will not constitute Defence delay, even if Defence counsel is also unavailable: Jordan, at paras. 63-65.

[115] In Cody, the Supreme Court explained how to determine if the Defence conduct is legitimate or markedly inefficient or indifferent to delay:

[31] The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

[32] Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

[33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138).

[34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate Defence conduct.

[116] In R. v. Safdar, 2021 ONCA 207, 469 D.L.R. (4th) 447, at para. 50, the Court of Appeal affirmed that a reasonableness assessment is required in upholding trial judges' determinations that legitimate reasons to decline continuation dates, such as Defence counsel being obligated to represent clients in previously scheduled serious matters, are not Defence delay.

[117] I would add that pursuant to the Supreme Court's comments in Jordan at para. 64, and Hanan at para. 9, in this category the focus is whether the Crown and court are actually ready to proceed where the Defence is not. The substantive reality is more important than the optics. For example, it is not properly deemed as Defence delay when hearing dates are set and the Crown claims it is available on dates where the Defence are not, but the 11(b) motion record establishes that the purported earlier Crown availability is not accurate due to the Crown failing to meet its disclosure obligations. Viewed in that more accurate context, the preliminary inquiry or trial could not have proceeded on those dates due to outstanding disclosure. In those circumstances, the Crown was not in fact available since they are not ready to proceed.

[118] In particular, in Hanan, at para. 9 the Supreme Court held that:

Defence delay comprises "delays caused solely or directly by the defence's conduct" or "delays waived by the defence" (Jordan, at para. 66). Furthermore, "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable" (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). [Emphasis added].

Framework

[119] In R. v. Zahor, 2022 ONCA 449, building on existing jurisprudence, Justice Coroza stated the following helpful summary of the framework for a s. 11(b) analysis:

A. THE s. 11(b) FRAMEWORK

[60] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.

[61] Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan, at para. 47.

[62] Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because "[t]he defence should not be allowed to benefit from its own delay-causing conduct": Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.

[63] Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the Defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61.

[64] Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is "caused solely or directly by the defence's conduct" must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63-64.

[65] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65. This court has also suggested that defence delay does not include Defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.

[66] Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan, at para. 46. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances: Jordan, at para. 105.

[67] Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown's control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan, at para. 69.

[68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.

[69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan, at para. 71. The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, nor the absence of prejudice, nor institutional delay: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.

[70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. They engage a quantitative analysis, in that 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: Jordan, at para. 75.

[71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.

[72] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan, at paras. 75-77.

[73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is "particularly complex": Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.

[74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody, at para. 64.

[75] For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered: Jordan, at para. 47. However, for charges that were laid before the release of Jordan, the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan, at para. 96; Cody, at paras. 46, 67.

[120] See also R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-38.

Delay Below the Presumptive Ceiling

[121] If the total delay from the charge to the actual or anticipated end of trial (minus Defence delay 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 (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. Absent these two factors, the s. 11(b) application must fail. Stays beneath the ceiling are to be rare and limited to clear cases: Jordan, at paras. 48 and 82.

[122] First, there must be Defence initiative to expedite the proceedings to obtain earlier dates. The Defence is required to act reasonably, not perfectly: Jordan, at para. 85.

[123] Second, the Defence must establish that the time the case has taken markedly exceeds the reasonable time requirements of the case: Jordan, at paras. 87-91.

[124] In R. v. K.J.M., 2019 SCC 55, [2019] 4 SCR 39, at paras. 107 - 111, the Supreme Court instructed that the focus regarding reasonable time requirements of the case is on whether the case took markedly longer than it reasonably should have to be completed. It is not about whether the case should have been completed in less time.

[125] In Jordan, at paras. 89-90, the Supreme Court directed that judge's must take into consideration knowledge of their local circumstances. They also observed that when the Crown has "done its part to ensure the matter proceeds expeditiously" it is unlikely that the reasonable time requirements will have been exceeded:

[89] In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

[90] Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

ANALYSIS

[126] The delay in this case is 1179 days, or 38 months and 22 days, or 3 years, 2 months, and 22 days.

Context and Translated Video-Statements

[127] Before I engage in the particularized 11(b) analysis, maintaining a bird's eye view as mandated by the Supreme Court in Jordan, I will start by explaining the context of the disclosure issues and delay.

[128] In this case the prosecution does not contest that the video-disclosure exists, is relevant, and was collected by the police to further a prosecution. It is not disputed that the statements are taken by the police in Punjabi (questions and answers), are possessed by the Crown, and that translations ought to be produced. In other words, the Crown fairly did not dispute that it is required to translate the central witness and accused statements where the police conducted the interviews in Punjabi. This is core disclosure to prosecute and defend the charges.

[129] This is not a case where the Crown takes the position that it has discharged its obligation to disclose all relevant materials in their possession and that the Defence must bring a disclosure motion or the Crown will seek to justify non-disclosure: R. v. Chaplin, [1995] 1 S.C.R. 727, at paras. 21-22. The disclosure in issue is not argued to be beyond the control of the prosecution, clearly irrelevant or privileged: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 339; R. v. Egger, [1993] 2 S.C.R. 451.

[130] The Crown took steps to eventually translate the complainant's statements recognizing that they are essential disclosure. After the delay with the complainant's November 2022 statement, they expedited the translation of the complainant's additional statement within two weeks when the issue arose at the preliminary inquiry. In general, the Crown recognized that the translation of the complainant and accused's video-statements are required for a fair trial and full answer and defence.

[131] In my view, this is consistent with the Supreme Court's guidance in Gubbins, where at para. 23, the Court explained that disclosure extends to information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it is relevant, relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the Defence.

[132] It is apparent that non-translation of these statements would clearly prejudice trial fairness and the accused's ability to make full answer and defence at a trial conducted in English. For example, the accused's translated transcript of his statement would be imperative for counsel to prepare for trial and for the accused to obtain essential legal advice about whether to testify or not.

[133] The statements are also relied on by the Crown to consider and advance their position in the victim and public's interest.

[134] That said, there is insufficient jurisprudence that addresses the Crown's obligation to disclose translations of statements taken by the police in languages other than the official languages of English or French. This is an important issue in the multi-cultural and multi-lingual community of Brampton where the police are mindful of this social context and have officers that speak the other languages to interview witnesses to collect evidence.

[135] In R. v. Carosella, [1997] 1 S.C.R. 80, at para. 36, Justice Sopinka discussed the broader principles of the Crown's obligation to produce materials in their possession that include information logically probative to an issue at the trial as to the credibility of the complainant because it satisfies the test for disclosure and the s. 7 protected Charter right to make full answer and defence:

The foundation for the Crown's obligation to produce material which may affect the conduct of the defence is that failure to do so would breach the constitutional right of the accused to make full answer and defence. As summarized in R. v. Egger, [1993] 2 S.C.R. 451, at p. 466, a unanimous decision of this Court:

... the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make full answer and defence, and to do so early enough to leave the accused adequate time to take any steps he or she is expected to take that affect or may affect such right. This obligation has constitutional underpinnings deriving from S.7 of the Canadian Charter of Rights and Freedoms . . . .

[136] All relevant material must be disclosed regardless of whether the Crown intends to introduce it into evidence or not. In addition, the Crown must provide the statements of individuals who have provided relevant information to the authorities regardless of whether the Crown intends to call these individuals as witnesses. R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.) at para. 59.

[137] In R. v. O'Connor, [1995] 4 S.C.R. 411, the Supreme Court explained at para. 101 the Crown's disclosure duty is correlated to seeing that justice is served: The duty on the Crown is a "[f]undamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served." Cited also in R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.) at para. 69.

[138] I recognize that by disclosing the original complainant's and accused's video-statements in Punjabi, the Crown provided statements that exist in their possession.

[139] This raises the issue of whether the Crown is required to translate the statements as part of their continuing disclosure obligation.

[140] In my view, the translated video-statements are necessary ongoing disclosure as part of the fruits of the police investigation required for trial fairness mandated by s. 7 of the Charter. This is necessary for several reasons.

[141] The translated statement is generated as a result of the specific manner of the investigation where the police responsibly interview the complainant and accused in another language resulting in charges. Gubbins, at paras. 18; 22.

[142] The phrase "fruits of the investigation" posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93 cited with approval in R. v. Gubbins, 2018 SCC 44, [2018] 3 SCR 35 at para. 22.

[143] Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence: Chaplin, at para. 30.

[144] The purpose of disclosure is to protect the accused's s.7 Charter right to full answer and defence, which will be impaired where there is a "reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence": R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22.

[145] During the totality of the criminal proceedings, important decisions on the basis of translated statements must be made by the Crown, Defence, pre-trial judges, and trier of fact (judge and jury) as the case progresses through the system.

[146] Accurate translations of the statements obtained by the police are necessary for full answer and defence because they are required by the accused and their Defence counsel of choice to consider legal advice, assess resolution, to determine viable defences and motions to bring or defend, and to make decisions about whether to narrow contested issues or not. In other words, it is essential for the accused to know the case to meet and for their counsel to fulfill their professional duty to the client.

[147] A translated copy of the statement is also required by the Crown counsel to fulfill their public interest duty including to understand the evidence to identify the grounds and particulars of any pre-trial applications.

[148] In this case there are motions impacted by the disclosure: a s. 276 motion, and voluntariness and s. 10 of the Charter. Factoring the onus on different motions, and the complexity of the s. 276 regime, both sides (and complainant's counsel) require a translated copy to conduct the necessary litigation.

[149] Further, both the Crown and Defence intend to rely on the complainant and accused's statements at the trial for the purposes of examination and cross-examination to the extent permitted by law. It is reasonable to expect that the complainant's statement will be used for Defence preparation and cross-examination. If the accused's statement is admitted after the pre-trial motions, the Crown may use that statement for cross-examination.

[150] That said, the translated witness statements required to be disclosed must include not only the relevant parts which the Crown intends to introduce into evidence, but also any statements which it does not intend to introduce but which may be relevant.

[151] From a practical and trial fairness perspective, the trial will be conducted in English. The judge and jury will require a translated copy of the statement to understand the questioning and evidence arising from the statements. The responses to the questioning derived from the statements may become an important part of deliberations: R. v. Saprikin, 2015 ONCJ 79, at para. 25.

[152] The judge also has a duty to ensure that the statements are reviewed for inadmissible portions under statute i.e. ss. 276 and 278 or common law principles such as extrinsic discreditable conduct, irrelevance, or highly prejudicial parts of low probative value, before either side seeks to rely on them.

[153] Also, translated video-statement disclosure is required core disclosure from a policy perspective when factoring local conditions. Brampton is a multi-cultural community where there is a significant South Asian population. This includes police officers who interview people in their first language to facilitate collecting evidence in support of laying charges and advancing a prosecution in the victim and public's interest.

[154] Similarly, in the Peel region, there are large segments of the population originating from countries that do not speak English or French well. Therefore, when a person gives a statement in a language other than English or French, translation is a necessary part of the Crown's disclosure duty to fairly advance the case.

[155] In an analogous area of law, courts have long recognized the need for interpretation to adequately give effect to s.10 Charter rights in special circumstances arising from language barriers. The courts have held that the right to counsel is one of the central protections to allow an accused person to understand their situation and make informed decisions in relation to their situation. In a multicultural society, it is important that the right to counsel be provided in a manner that is responsive to the different languages understood by people who are arrested or detained: see Chief Justice Tulloch's decision in R. v. Barros-DaSilva, 2011 ONSC 4342 at paras. 48-49. See also Justice Copeland's discussion in R. v. Bassi, 2015 ONCJ 340 at paras. 7-12.

[156] While I appreciate that the context here is different in that an accused is distinctly vulnerable upon arrest, the fundamental norm is that the state has a duty to ensure fairness at key points in the criminal process, including by providing interpretation or translation of statements taken by the police in another language. This is necessary to advance fair criminal proceedings.

[157] I find that it is essential that evidence to advance a prosecution that is obtained in a different language be translated and disclosed by the Crown. This is necessary for fair and informed criminal proceedings for everyone, and in particular for the accused.

[158] In my view, in this case where the Crown's case is grounded on the two video-statements taken by the police in the Punjabi language, the Crown's good faith continuing disclosure obligation described in Stinchcombe, Egger, Chaplin, Gubbins, and Taillefer does not reasonably end with disclosing untranslated statements.

[159] In Chaplin, at para. 21, the Supreme Court summarized the breadth of the continuing disclosure obligation as correlated to fairness and professional duty:

21 This Court has clearly established that the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory, except evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged: R. v. Stinchcombe, supra, at p. 339; R. v. Egger, [1993] 2 S.C.R. 451. The Crown obligation to disclose all relevant and non-privileged evidence, whether favourable or unfavourable, to the accused requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach of ethical standards. With respect to the latter, of necessity, great reliance must be placed on the integrity of the police and prosecution bar to act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as very serious breaches of professional ethics.

[160] Had the disclosure request for production of the translated statements been disputed in this case, based on this record and submissions, I would have found the Defence request for their production was properly grounded and a refusal by the Crown would not be justified as beyond its control, clearly irrelevant or privileged: Chaplin at paras. 25, 30-33.

Delay

[161] Returning to the issue of delay in this case, the total history establishes a troubling, prolonged failure by the Crown's office to disclose essential statements obtained by the police, and then their translations to enable their reasonable use, all of which are at the heart of the trial proceedings. This failure continued to the end of the s. 11(b) motion despite numerous earlier specific warnings to the Crown that the delayed disclosure was a problem.

[162] The Crown was asked at both s. 11(b) motion dates if they could explain the reason for the disclosure failures and they were unable to do so.

[163] As I will discuss below I recognize that there are also periods where the Defence caused some delay in taking steps in the proceedings.

[164] Both parties fairly acknowledged that they failed in different ways to live up to the full expectations identified by the Supreme Court in Jordan. The Crown ultimately conceded that their position was "not strong" given the lack of a reasonable explanation for the history of delayed essential disclosure. The Defence conceded that parts of the case could have been moved more efficiently and that counsel did not make clearer the disclosure concerns at some appearances.

[165] Overall, after considering the total background I find that most of the delay is the result of the unusually long delay with the most critical Crown disclosure: the translated video-statements of the complainant and accused.

[166] It is well understood by Crown and Defence lawyers that in domestic violence or sexual offences cases, the complainant's statement and accused's statement, where given, are the most essential disclosure.

[167] Core disclosure that is necessary to respond to the charges must be provided in a reasonable period of time because it impacts the accused's decisions about how to proceed. In Stinchcombe, at p. 342-43, the Supreme Court of Canada recognized this principle:

I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which the accused must take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before committing on these issues. As I have pointed out above, the system will also profit from early disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas of guilty. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information.

[168] I find that the Crown should have translated the statements as part of the initial disclosure package. Viewed in the context of the facts of this case, this initial disclosure (which did not include the statements) occurred about six months after the accused was charged, clearly providing sufficient time. While mindful that perfection is not required and disclosure preparation requires prioritization of resources in a busy jurisdiction, several months for the Crown's office to get organized is more than sufficient time, particularly when there is no other reasonable explanation to justify the delay. Also, as noted above, the Crown demonstrated when the additional complainant's statement came up at the preliminary hearing, that they are able to get translations done in about two weeks when desired.

[169] The actual timing that core disclosure is ultimately delivered to the accused also more fairly indicates whether the Crown is truly available or ready to proceed to trial when dates are scheduled. When Crown counsel states that are available on certain dates when setting future preliminary inquiry or trial dates, where in fact it is later proven that they could not proceed on those dates because disclosure is still not ready, the reality is that they are not able to proceed.

[170] Recognizing that the context of outstanding core disclosure is the focus in this case, it is also recognized that pursuant to the Court of Appeal's ruling in R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at para. 46, that incomplete disclosure on its own does not preclude the parties and the court from moving forward with the proceedings and scheduling the trial. Instead, there must be some causal connection between the incomplete disclosure and the delay. The Defence cannot delay proceedings in order to obtain "every last bit of evidence before a trial date is set": R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.), at para. 47.

[171] As this case progressed through the system starting in November 2022, the circumstances consistently made it clear that it was necessary for the Crown to provide the key translated video statements central to the prosecution's case to comply with their disclosure obligation. This delay extended through the s. 11(b) hearing before this court, closing in on three years later.

[172] First, on November 26, 2022, the complainant provided a video-statement to the police in Punjabi, with the interviewing officer also speaking in Punjabi. This is the foundation for the criminal complaint.

[173] Second, when the Applicant was arrested on November 27, 2022, he provided a videotaped statement to police in Punjabi, with the interviewing officer also speaking in Punjabi. This is the foundation for the Crown's voluntariness motion. To the last date this motion was argued in August, the translated statement had not been disclosed.

[174] Third, the accused had a bail hearing on November 27 and 28, 2022, during which a Punjabi interpreter was used, alerting the Crown further of the translation issue at an early stage of the case.

[175] Fourth, the Crown did not adequately address periodic Defence disclosure requests and comments on record at court appearances over the span of three years. Dates underlined below are court appearances while the others are where correspondence for disclosure was sent: December 2, 2022; December 28, 2022; February 17, 2023; April 14, 2023; April 14, 2023; September 25, 2023; February 9, 2024; October 1, 2024; October 23, 2024; (complainant's translated statement disclosed October 24); November 1, 2024 (preliminary hearing adjourned); February 19, 2025 (SCJ JPT); and June 25, 2025 for 11(b) motion.

[176] Similarly, the accused's preliminary inquiry set for November 1, 2024, had to be adjourned because the Crown did not provide the complainant's video-statement until that day. By the continuation dates of January 15 and February 5, 2025, the Crown had still not disclosed the accused's translated video-statement.

[177] Fifth, the Superior Court of Justice Judicial Pre-Trial (SCJ JPT) form completed for the February 19, 2025 appearance made it clear to the Crown that this disclosure was still outstanding.

[178] Also, the Applicant's 11(b) motion with factum dated January 20, 2025, specifically identifies this outstanding disclosure as the central issue that has impacted delay, reminding the Crown it was outstanding.

[179] This complacency persisted before me. The delay problem should have set off alarm bells that the disclosure had to be expedited as the case would be shortly proceeding to Superior Court, but it did not result in the translated accused's statement being disclosed in a timely manner.

[180] Irrespective of this extraordinary history, as of August 5, 2025, the Crown had not disclosed the accused's translated statement, the complainant's December 20, 2020 statement, or the DVR.

[181] The Crown's materials and submissions still have not provided a reasonable explanation for the unusually delayed disclosure.

[182] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 11, and in regard to "timely disclosure," Cromwell J. said that "[t]he Crown bears the burden of explaining unusual delays…" He added, at para. 20:

The appellant was entitled to timely disclosure, he did not receive it, and no explanation for the failure to provide it has been advanced. I do not see anything in this which undercuts the appellant's position that this delay was unreasonable.

[183] Mr. Chatha was entitled to receive essential disclosure before making meaningful decisions about his case. Eventually, Mr. Chatha chose to set a trial date without this disclosure. This does not mean that the disclosure delay is less problematic. At some point, the accused had to set dates if he wanted his case to proceed. When an accused proceeds to set dates in these challenging circumstances, this should not be interpreted as acquiescence to the delayed essential disclosure.

[184] The Crown submits that the accused could have reviewed disclosure and made informed decisions about setting dates more promptly. Their argument relies on cases that are clearly distinguishable on the facts because in those cases there was not a major failure by the Crown to provide essential core disclosure for years including after the 11(b) motion was started.

11(b) Assessment

[185] I will now address the 11(b) framework and analysis.

[186] Since I have summarized the events above and counsel have provided event chronologies in their materials, my discussion will focus on the areas of dispute.

[187] There are three primary periods of delay in dispute that the Crown attributes to Defence delay. I will focus on those areas.

May 23, 2023 – August 10, 2023 – 80 days

[188] The Respondent Crown submits that the above period constitutes Defence delay.

[189] I agree in part.

[190] On May 9, 2023, the Crown provided initial disclosure to the Applicant. The disclosure did not include the two video-statements (untranslated).

[191] At the June 9, 2023 court appearance, Defence counsel confirmed disclosure was incomplete, however he indicated that he was waiting to move this particular matter forward until receiving disclosure on another related matter. I am told that the accused was facing charges on multiple informations arising from the same complainant.

[192] On August 11, 2023, Defence counsel indicated that a CPT had been scheduled for October 6, 2023.

[193] The next disclosure request that came from counsel after the sharing of initial disclosure was on September 25, 2023.

[194] The Crown submits that after a reasonable period of time for Defence counsel to review initial disclosure, part of the continuing delay is attributable to the Defence for failure to review disclosure and conduct a CPT in a more timely manner to identify their concerns.

[195] The Crown submits that two weeks would have been sufficient for Defence counsel to review initial disclosure and then to take further steps including to set a date for a CPT.

[196] The Crown argues that two weeks after disclosure was shared on May 9, 2023, is May 23, 2023. Delay should be apportioned to the Applicant from May 23, a 2-week threshold, on to when further steps are taken.

[197] Having considered the circumstances, I agree that part of this period is Defence delay. During oral argument, the Applicant's counsel conceded the Defence could have taken steps after May 9 to schedule a CPT earlier to address the disclosure and to follow-up in writing, but did not move as expeditiously as they should have.

[198] In Jordan, at paras. 113 and 121, the Supreme court stated that inaction may amount to Defence conduct that is not legitimate. Illegitimacy may extend to omissions as well as acts. A corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to actively advance their clients' right to a trial within a reasonable time and collaborate with Crown counsel when appropriate: Jordan, at para. 138.

[199] However, I would not apportion the entire period as Defence delay. This is because the Defence required reasonable time to review disclosure, submit a follow-up request and schedule a CPT. This would likely have taken at least a few weeks for these reasonable steps to be completed. Further, in keeping sightlines on the forest from the trees, the Crown was on notice that the disclosure was outstanding from prior letters and court appearances, and was not proactively addressing this failure. The Crown's failure to disclose was connected to the delay wherein there were more court appearances in June and August, to address disclosure.

[200] In the circumstances, I apportion Defence delay from June 9 to August 10 which is 63 days. This would give the Defence and accused a reasonable period of two weeks to review the disclosure, identify outstanding items, send follow-up in writing, and permit a further two weeks to allow for a Crown pre-trial to be scheduled and completed, inclusive of any follow steps including to get client input as required.

November 21, 2023 – January 3, 2024 (44 days)

[201] The Crown submits that this entire 44 day period constitutes Defence delay.

[202] They submit that one week after the provincial court JPT was sufficient for the accused to get instructions and then schedule a preliminary inquiry date. The Crown relies on other decisions that find a range of 7 to 14 days is sufficient such as R. v. Lee, 2017 ONSC 4862, at para. 22; R. v. Brett-Hughes, 2022 ONCJ 31 at paras. 11-17; and R. v. Ocansey, unreported decision of Caponecchia J, December 20, 2023 (Ont. C.J.), at paras. 14-16.

[203] I pause here to note that this is a fact-specific determination. One size does not fit all. Also, in those cases, unlike the case before me, there were not similar grave disclosure failures by the Crown of this magnitude. To the contrary, the disclosure was being properly provided and the courts found that the Defence required a week or two to review the disclosure and get instructions.

[204] That said, I agree that this is partly Defence delay and would apportion some of the time accordingly.

[205] The Crown continued to fail to provide the core disclosure in the interim adversely impacting the accused's rights to make informed decisions. It can be incredibly taxing for an accused to be charged with serious offences and not receive the core disclosure for a protracted period of time, while being expected to continue to take more steps in the proceedings uninformed fully about the case to meet and costs to pay. The complainant's statement was still not disclosed at all.

[206] I recognize that on November 14, 2023, a JPT was conducted in the provincial court. However, it is difficult to find that this step was fully informed given the Crown's disclosure failures.

[207] A one-day preliminary inquiry was agreed to, and a preliminary inquiry time estimate form (PTEF) was prepared and sent to Defence counsel.

[208] However, I note that the preliminary estimate was one day, yet in reality it ended up taking two days, in part because of the late disclosure triggering the adjournment followed by the Crown's late s. 540(7) application. At the preliminary inquiry more disclosure issues arose about the complainant's December 2020 complaint.

[209] Following the JPT, the Defence scheduled a trial scheduling meeting on January 4, 2024, where preliminary inquiry dates were canvassed. The Crown submits that a period of one week after a JPT is sufficient for Defence counsel to get instructions and move the matter forward, citing the above cases while not acknowledging the fundamentally different facts. Also, the availability of the trial coordinator's office to schedule the preliminary inquiry is not established on this record.

[210] In my view, a reasonable period to seek instructions following a judicial pre-trial is properly characterized as part of the procedural requirements of the case and should be viewed as being accounted for in the presumptive ceilings.

[211] Two weeks is a reasonable period of time for the Defence to legitimately respond to get instructions, followed by time to arrange for an appointment for the scheduling of the preliminary inquiry. Contextually in terms of the time of year, the court would not be open December 25, 26, or January 1, which would impact scheduling availability.

[212] I would apportion Defence delay from November 28, 2023, to January 3, 2024, while excluding the three statutory holidays, for a total of 34 days.

October 12, 2024 – October 31, 2024 (20 days)

[213] The Crown submits that this period constitutes Defence delay.

[214] I disagree. The Crown's disclosure failures caused the delay and they were not ready during this period of time.

[215] On January 4, 2024, the trial scheduling meeting occurred and the preliminary inquiry date was set for November 1, 2024.

[216] This was the fourth preliminary inquiry date that was offered, and the first that was accepted by the Defence. Earlier dates were offered of October 11, 16, and 30, 2024.

[217] Though the preliminary inquiry scheduling form is silent as to whether the Crown was available on the earlier dates, the Respondent submits that on the evidentiary record, and the lack of any contradiction, that it can be reasonably inferred that the Crown and officer (who, as referenced in subsequent transcripts, was only required for witness management in a role that could have been handled by anyone) was available on those earlier dates.

[218] There is no evidence submitted at this motion that the Crown was available on the earlier dates.

[219] However, even if I accepted that submission and draw those inferences, the late disclosure resulted in the preliminary inquiry of November 1, 2024, getting adjourned. This means that there was a causal connection between the outstanding disclosure and the delay of the preliminary inquiry. That renders this case distinguishable from the facts in R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 44-52, where the Court of Appeal upheld the trial judge's finding that the outstanding disclosure did not cause delay.

[220] In the Applicant's case, the failure to disclose the complainant's statement in a timely manner (including after the dates offered noted above of October 11, 16, and 30) clearly caused delay of the proceedings. The Crown was not ready to proceed on the October dates that it seeks to have attributed as Defence delay.

[221] On this record it would be unfair in the circumstances to find that the Defence unavailability in October is Defence delay, since when the dates were set, the Crown was indicating it was ready but in fact it has been proven that they were not.

[222] On this record it would be unfair in the circumstances to find that the Defence unavailability in October is Defence delay, since when the dates were set, the Crown was indicating it was ready but in fact it has been proven that they were not.

July 28, 2025 – September 28, 2025 (63 days)

[223] The Respondent submits that the above period constitutes Defence delay.

[224] I disagree.

[225] Although the Crown and court had theoretical earlier calendar "availability" when the trial dates were set, in substance, the Crown was not ready to proceed. Again, the core disclosure remains outstanding as of August 5, 2025. As of the August 5, 2025 11(b) hearing motion, the translated copy of the accused's statement had still not been disclosed, nor the complainant's December 20, 2020 complaint materials.

[226] With that clarity about the true total circumstances, it is difficult to find that this period is fairly construed as Defence delay.

[227] In a different case where the Crown was genuinely ready to proceed and available, at least by July 28, 2025, then some of this subsequent period may be Defence delay. But that is clearly not the situation in this case.

[228] As of August 5, 2025, the Crown still had no explanation even though these materials are important disclosure and necessary for the pre-trial motions. Had the trial dates been set during this period, another adjournment would likely have been necessary.

[229] One of the pre-trial motions set for October relates to voluntariness and s. 10(b). Once the translation of the accused' statement is disclosed the Defence will require time to prepare, which based on the current circumstances, I find now includes up to September 28. The section 276 litigation may also reasonably require the translation.

[230] On February 19, 2025, a JPT was conducted in the Superior Court, and trial dates were put on the record. The eighth trial date that was offered was accepted by the Defence. The Crown acknowledges that in this matter, featuring 2-days of pre-trial motions, that the turnaround time of 48 days between the JPT on February 19, 2025, and the first offered trial date of April 7, 2025, would not have been tenable. In other words, the Crown acknowledges that given the nature of this case, those first 48 days would not be sufficient time to legitimately respond to the charge. Based on that logic, similar time is required for the Defence to prepare once disclosure is completed and for the Crown to respond to motion materials.

[231] The Crown was relying on the time between the JPT on February 19, 2025, and the second offered trial date on July 28, 2025 (a period of 160 days) as adequate amount of time for Defence counsel to prepare for trial, and to accommodate two days of pre-trial motions. However, the Crown's position does not factor that it still has not disclosed the translated accused statement and the complainant's December 2020 allegation materials, both of which are necessary to prepare for the pre-trial motions and trial.

[232] Factoring this updated context, I disagree with the Crown position that the Defence delay for the setting of trial should start with the second offered trial date of July 28, 2025, as opposed to the third offered date of September 29, 2025, as submitted by the Defence. To be frank, if the disclosure continues to be delayed, the Defence position of September 29 would have to be adjusted further out.

[233] With respect, the Crown engages in speculation about the potential for disclosure to be resolved faster had earlier trial and motion dates been set, alluding to potential prioritization. This is problematic for a few reasons.

[234] First, Jordan and its progeny require the Crown to recognize delay problems and act reasonably to address them in a timely manner. This clearly has not been done in this case.

[235] Second, the Crown's position that setting an earlier date without disclosure, whether preliminary inquiry or trial, might have had an impact on incentivizing their office to meet their own independent disclosure duties, is disproved by the facts in this case. They failed to disclose the complainant's video-statement prior to the first preliminary inquiry date despite having considerable time and a clear target date, resulting in an adjournment. They have failed to disclose the other core disclosure as the s. 11(b) motion approached and then was argued. They still have not disclosed the materials as the pre-trial motions quickly approach.

[236] This reality of unacceptable delay and complacency entirely diminishes their written submission that "[h]ad these earlier dates been selected, many different things could have happened in relation to this current disclosure issue."

Net Delay

[237] Based on the above noted findings and conceded Defence delay, I find the following net delay.

[238] 1179 days – 133 days - 63 days - 34 days = 949 days.

[239] In other words, 1179 - 230 (Defence delay) = 949 days.

[240] This is a total of 31.2 months of delay.

[241] The Crown is not arguing that there are any other circumstances warranting a reduction.

CONCLUSION

[242] The delay of over 31 months is above the 30-month ceiling and therefore I find a breach of the Applicant's rights under s. 11(b) of the Charter.

[243] If the disclosure failure continues, the delay above the ceiling would increase, as the deduction for the Defence concession would be adjusted accordingly.

[244] The remedy granted is a stay of the proceedings.

Mirza, J.

Released: September 26, 2025

Footnotes

[1] He was also charged with other offences such as mischief which are not subject to this motion but are part of the facts and discussions at court appearances.

[2] Without being determinative, it is plausible that these principles may be similarly applicable to other evidence in a foreign language obtained by the police pursuant to a search warrant such as text or SMS conversations.