Court File and Parties
Court File No.: CR-25-47 Date: 2025-09-24 Ontario Superior Court of Justice
Between: His Majesty the King, Respondent
And: Jonathan Pardassie, Applicant
Counsel:
- Joshua Ng, for the Crown respondent
- Jag Virk, for the Defendant applicant
Heard: July 18, 2025
Reasons on S. 11(b) Charter Application
D.E. Harris J.
Introduction
[1] The applicant, charged with firearm offences, applies for a stay of proceedings on the basis that the trial has not been held in a reasonable time in violation of s. 11(b) of the Charter: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[2] The charges were laid on January 16, 2022. Besides the firearm charges, there was also originally a possession for the purpose of trafficking charge. That was withdrawn sometime ago, on May 30, 2024. The Crown's conduct with reference to this drug charge is pivotal to this application.
[3] The firearms trial is presently scheduled for mid-December 2025, a total delay of one month short of four years. Needless to say, this is far above the ceiling for net delay from Jordan: 30 months (two and a half years) for two stage criminal proceedings. The Crown says the net delay is 26 months; the defence puts it at 41.1 months.
[4] It is appropriate to employ the approach I elaborated upon in R. v. Hyacinthe, 2022 ONSC 1444. The purpose is to isolate and concentrate on live delay issues between the parties in order to expedite both the hearing and judicial decision making. It would be ironic indeed if resolving s. 11(b) issues were itself a significant cause in delaying trials. In my view, these applications take more time to hear and, in particular, to decide, than they should. Factums read like national highway maps. Dates, times and actions are listed but there is little thematic connection drawn between them.
The Key Facts Behind This Application
[5] In this case, there is one key area which forms the major dispute between the parties and is conducive to the Hyacinthe approach. The disagreement between the parties has to do with delay which the defence contends was caused by how the trafficking charge was handled by the Crown.
[6] But first, a bird's eye view recounting several of the important events would be helpful. After significant disclosure issues and other problems, on March 14, 2023, a trial date was finally set for July 15-17, 2024 in the Ontario Court of Justice. When the Crown inquired soon after the March 14, 2023 hearing date whether s. 11(b) was an issue and received the answer that it was, the matter was brought forward, and on September 14, 2023, new and earlier dates of October 16-18, 2023 were set for trial.
[7] Soon after, defence counsel concluded that he did not have sufficient time to prepare and so he applied to have the trial dates vacated. The dates were adjourned on consent and on October 16, 2023, a re-election to a judge and jury trial was made. The applicant exercised his right to a preliminary inquiry which was available on the drug charge only, not on the firearm charges. The Crown accepts that this re-election and choice to have a preliminary hearing were for legitimate purposes.
[8] It is safe to say that at this stage, serious Jordan problems were looming. The total delay was approaching two years. The Crown was likely thinking about a way to get the case to trial expeditiously. There was a judicial pre-trial on November 8, 2023. Later that same day, Crown counsel who was present at the pre-trial wrote an email to defence counsel suggesting that he may materially change the course of the prosecution. It read in part:
I'm attaching the time estimate as discussed at the judicial pretrial today for the 1 day possession for the purpose of trafficking count [preliminary inquiry]. As discussed, I expect the Crown will proceed on a 4(1) offence [possession] rather than the 5(2) offences [possession for the purpose of trafficking] as laid. In those circumstances, your client is not eligible for a preliminary hearing but would have an election to make as to whether his trial would be in the Ontario Court or Superior Court. I attach the estimate simply because we discussed a time estimate at the pre trial today. If your instructions are to set a trial in the Ontario Court, you already have the trial time estimate for that and can set that if you wish. (Emphasis added.)
[9] Notwithstanding this, at a scheduling conference on November 23, 2023, two weeks after this email, a preliminary hearing date of July 31, 2024 was set. Nothing appears to have been said at the conference about the suggestion that the drug charge might be withdrawn. However, another five months later, on March 7, 2024, a second email written by the judicial pre-trial Crown to defence counsel stated:
… I saw there was a preliminary hearing set for 1 day on this matter for July 31, 2024, as per the email below, your client doesn't get a preliminary hearing on these offences given the Crown is proceeding on the 4(1) offences. So it should be set as either a trial in the Ontario Court for which you already have the TTEF or alternatively, sent to the SCJ for a JPT there…
[10] Defence counsel answered the same day that it was "news" to him, asking when the Crown had decided to withdraw the drug charges. He said he would seek instructions from his client and inquired whether a new Information had been filed. On May 17, 2024, the Crown reached out to defence counsel to get the matter back to court. On May 30, 2024, in open court, the drug charge was withdrawn. The defence re-elected for a trial in the Ontario Court of Justice. On June 11, 2024, following a judicial pre-trial, trial dates of March 17-19, 2025 were set. On January 8, 2025, these trial dates were vacated and there was a re-election to the Superior Court. The trial date is currently set for December, 2025.
Application of S. 11(b) to the Facts
[11] The Crown asks that the period from the judicial pre-trial on November 8, 2023 until February 14, 2025 be counted as defence delay (464 days, 15 months) and subtracted from the overall delay. The November 8, 2023 pre-trial is relied upon as the start date because it was on that day that the pre-trial Crown wrote to defence counsel that he "expected" the Crown would withdraw the drug charge, taking away the right to the defence to a preliminary hearing. The selection of February 14, 2025 as the end date of this period is less clear. This is the date on which the defence was prepared to schedule a judicial pre-trial and one was set for March 20, 2025.
[12] The Crown's major position is that the defence purposely employed tactics to delay the trial. There were several re-elections by the defence. In relation to the drug charge, the Crown argues that the defence was wrong to schedule a preliminary hearing on November 23, 2023 without "first clarifying the Crown's position" with respect to the drug charge and was also in the wrong when, after March 7, 2025, the Crown explicitly stated their intention to withdraw the drug charge and the applicant did "nothing to schedule a trial". The defence should have immediately scheduled one.
[13] Besides the emails excerpted above, the record is filled out by a hearsay affidavit from defence counsel's office relating what was said at the November 8, 2023 pre-trial. According to the affidavit, it was said that if the defence elected to have a preliminary hearing on the drug charge, the Crown might consider withdrawing the trafficking in favour of a possession charge. The withdrawal would only occur if a preliminary hearing was set. In response to questions by the pre-trial judge, the Crown said that the charge could only be withdrawn after going through the proper Crown channels.
[14] The Crown attacked the reliability of this affidavit based on it being triple hearsay. I do not intend to delve into this issue in any depth. The affidavit adds little of importance. The difficulty in the Crown's position lies with its underlying premise, a premise founded on a basic misconception.
[15] After an individual is charged by the police, the Crown has sole carriage of the prosecution. The defendant does not bring himself to trial. The Crown brings the defendant to trial. The Crown has total and exclusive control over the charge. It is their right to determine how to proceed, whether to prioritize or whether to withdraw the charge. The Supreme Court has held that it is the Attorney General's ultimate prerogative to initiate, conduct and terminate prosecutions: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 3. The defence may advocate and attempt to persuade the Crown to withdraw or reduce the charge, but there is no power to unilaterally affect the charge. That is the Crown's exclusive purview.
[16] The duty of the defence is merely to cooperate and not to frustrate the Crown's scheduling efforts. The Crown's position in this case assumes that the defendant had some participatory role in bringing himself to trial. That is clearly incorrect. Aside from the defence's election, it was up to the Crown to decide how to deal with the charge, namely, whether to continue with it, whether to prioritize it amongst the welter of other cases or to withdraw it.
[17] The drug trafficking charge was laid at the outset with the firearm charges. By the time of the November 8, 2023 pre-trial, the charges were verging on 22 months old, almost two years. The drug trafficking allegation was the only charge which carried with it the right of the defendant to have a preliminary hearing. A preliminary hearing, besides its purpose to screen out cases that do not meet the prima facie threshold, constitutes a benefit for the accused as it provides him with an often very useful and important discovery opportunity: R. v. Skogman, [1984] 2 S.C.R. 93, at p. 105. In this instance, the applicant chose to avail himself of this benefit. He was well within his rights in doing so.
[18] There are several problems with the way the Crown proceeded:
Why, only after almost two years, did the Crown come to the conclusion that the drug trafficking charge should be withdrawn?
Why was the Crown's intention put tentatively and conditionally? The Crown statement that "I expect" the charge will be withdrawn is not something that the defence could be required to act on. If the Crown had resolved to withdraw it, it should have said so and followed through. It was not until March 7, 2024 that the Crown unequivocally announced they would withdraw the charge. Almost five months had been lost because of indecision and vacillation.
Why was the charge not actually withdrawn until May 30, 2024, more than two and half months after the decision was made? The case was in dire Jordan jeopardy by then. It was not a time to dally.
[19] When asked why the drug charge was withdrawn, Mr. Ng for the Crown, who was not involved in the proceedings other than arguing this motion, declined to answer. Because the withdrawal of a charge is within the prosecution's core discretion as delineated in Krieger, and because there was no trace of impropriety, Mr. Ng's decision not to answer was justifiable. However, in the absence of any explanation and in the full context of the emails and the other circumstances, it is relatively obvious that the drug charge withdrawal was to pare down the proceedings in order to attempt to comply with the reasonable delay ceiling from Jordan. No other explanation makes any sense and can reasonably be inferred. If the Crown's case had fallen apart or there was a Charter problem, that would have likely similarly affected the firearm charges. And there would be no reason not to state this and perhaps claim that it was an exceptional circumstance under Jordan if it was unforeseeable.
[20] In any case, it does not matter a great deal what the reason was. The decision should have been made to withdraw well before the two-year mark. But even aside from this, when the expectation to withdraw was stated on November 8, 2023, it should have been carried out immediately. The argument that the defence should not have allowed a preliminary hearing date to be set on November 23, 2023 is fatally flawed. It misattributes prosecutorial authority to the defence. It was the Crown's sole prerogative, and the defence had no part to play in the decision making. Nothing the defence did was unfair or misleading. The pre-trial Crown should have ensured that the charge was withdrawn if that was the intention.
[21] A wait and see attitude to attempt to preserve the drug charge was not a luxury the Crown could afford. There was no time for gamesmanship or twiddling of thumbs. The Crown should have acted decisively to save the prosecution. To proceed as they did was ineffectual and exemplified the complacency towards delay Jordan emphatically called out as being unacceptable.
[22] The indecisiveness of the drug withdrawal cost at least the time from when the preliminary hearing with respect to it was set on November 23, 2023 to the time it was finally cancelled with the withdrawal of the drug charge on May 30, 2024. If the drug withdrawal had occurred immediately as it should have well before the fact, the time from the set date to the withdrawal--November 23, 2023 to May 30, 2024, a period of six months--would not have occurred. This delay was caused solely by the Crown. The entire six months was superfluous and would not have occurred but for the Crown's mishandling of the drug charge. The position that it should be laid at the doorstep of the defence must be rejected: Jordan, at para. 63. Quite to the contrary, it was delay generated by the Crown.
[23] These six months for which the Crown is exclusively responsible is sufficient to resolve this application in favour of the defence. The Crown put the delay at 26 months. Adding these additional six months of waffling which the Crown attempted to attribute to the defence puts it over the Jordan two-part ceiling, adding up to a net delay of 32 months.
[24] Although this is sufficient to resolve this application, the delay properly ascribed to the Crown extends beyond this. The Crown argues to extend the delay attributable to the defence to February 14, 2025, another eight and a half months from the May 30, 2024 withdrawal. But a good portion of the repercussions from the dilatory Crown conduct in failing to withdraw the drug charge inevitably caused further delay. Once the drug charge was withdrawn, the defence had the absolute right to a re-election. The applicant's jeopardy had changed markedly. He had the right to reassess whether in the altered situation, the trial would be better run before a judge alone or a judge and jury. The decision to re-elect to the Ontario Court of Justice was a step taken to legitimately respond to the new circumstances and cannot be costed to the defence: R. v. Lai, 2021 SCC 52, [2021] 3 S.C.R. 733, at para. 1, citing R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32. I reject the Crown's position that this re-election was for the purpose of engineering delay or was the result of chronic indecision.
[25] A review of the record demonstrates that the Crown's attempt to foist the blame for the entire time period of May 30, 2024 to February 14, 2025 onto the defence cannot succeed. The case had to be reset and go back to square one after the Crown withdrew the drug charge. To be more specific, on June 11, 2024, there was a trial scheduling conference at which dates in March, 2025 were set for trial. On June 25, 2024, the Crown attempted unsuccessfully to obtain earlier trial dates. On January 8, 2025, there was a defence re-election to Superior Court and the March dates were vacated. In April, this 11(b) motion and the trial in December, 2025 were scheduled.
[26] The consequences of the January, 2025 re-election which was announced in December, 2024 must be borne by the defence. But the time for which the defence cannot be held responsible was at least from May 30, 2024 to the re-election intention announced in December, another six months. There may be some isolated pockets of time within this period attributable to the defence but the majority was not delay caused by the defence. I would put this additional delay at about five months, bringing the net delay up to 37 months, well over the ceiling.
[27] For these reasons, the defence application must be allowed and a stay of proceedings imposed under s. 24(1) of the Charter of Rights and Freedoms.
D.E. Harris J.
Released: September 24, 2025