Court File and Parties

Court File No.: CR-25-647 (St. Catharines) Date: 2025-10-22 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Anthony Clarke, Applicant

Counsel:

• D. Anger, Counsel for the Crown/Respondent
• S. Buchanan, Counsel for the Applicant

Heard: August 8, 2025

Before: The Honourable Justice I.R. Smith

Ruling on s. 11(b) Application

1. Introduction

[1] The applicant was charged by way of an information sworn on December 21, 2021, with possession of fentanyl and cocaine (both for the purpose of trafficking), with possession of the proceeds of crime under $5,000, and with failing to comply with a release order. All four offences are alleged to have occurred on December 21, 2021. The applicant's jury trial is scheduled to commence in St. Catharines on February 23, 2026, and is expected to conclude on March 3, 2026, more than 50 months after he was charged. Even after subtracting exceptional and defence-caused delay, the applicant asserts that the remaining delay in this case is still well over the ceiling of 30 months fixed in Regina v. Jordan, 2016 SCC 27 for trials in Canada's superior courts. He says that his right to be tried within a reasonable time has therefore been violated.

[2] The Crown opposes the application and argues that, properly analyzed, the delay in this case is largely attributable to the applicant and that the remaining delay is below the 30-month ceiling.

[3] For the reasons which follow, I find for the applicant.

2. The Jordan Framework

[4] The framework for the analysis of delay was summarized by Gillese J.A. in Regina v. Coulter, 2016 ONCA 704 as follows (at paras. 34–40; emphasis in the original):

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

• Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

• Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

• Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

3. The Total Delay

[5] The parties agree that the total delay in this case runs from the date of the information (December 21, 2021) to the anticipated last day of trial (March 3, 2026), and amounts to 1,533 days or 50.40 months using the method of calculation deployed by Paciocco J.A. in Regina v. Shaikh, 2019 ONCA 895, at para. 33, footnote 2: 1 month equals approximately 30.417 days.

4. Defence Delay

4.1 Introduction

[6] Defence delay is either "delay waived by the defence" or "delay caused solely by the conduct of the defence": Jordan, paras. 61 and 63.

[7] In this case, both parties analyse the issue of defence delay in two main periods: the period before the applicant's present counsel, Mr. Vijai Singh, was retained, and the period after Mr. Singh was retained.

4.2 The Period Before Mr. Singh Was Retained by the Applicant

4.2.1 Background

[8] A change in counsel, or difficulty in retaining counsel, or both, will often cause delay. Both these problems materialized in this case. Eventually, the applicant's present counsel, Mr. Singh, was retained and went on the record on July 20, 2023, some 19 months after the swearing of the information. The Crown argues that almost 16 months of this period constitutes defence-caused delay. The applicant concedes that some of this period of delay ought to be attributed to him but says that it is a much shorter period of about 8 and a half months (i.e., the period leading up to Mr. Singh's retainer) that ought to be described as defence delay.

[9] On his first day in court, December 22, 2021, the applicant advised that his counsel was Christian Pearce, a lawyer from Toronto. In the period that followed, which involved some 10 court appearances (from December 24, 2021 to April 1, 2022), the applicant was attempting to retain Mr. Pearce and was, with Mr. Pearce's help, formulating a bail plan. Eventually, on April 11, 2022, a bail hearing was held, and the applicant's release was ordered. Mr. Pearce advised the court at that time that he was "not retained on the case proper." Thereafter, there was a series of five appearances (from May 5 to July 28, 2022) at which either Mr. Pearce or the applicant indicated to the court that the applicant was applying for Legal Aid funding and was attempting to retain local counsel in the Niagara Region rather than Mr. Pearce.

[10] Then there were five adjournments (September 8 to December 22, 2022) for the purpose of scheduling and conducting a judicial pre-trial conference ("JPT"), which it seemed that Mr. Pearce was willing to conduct. Eventually, on December 22, 2022, Mr. Pearce said that he was not retained and not prepared to attend a JPT for the applicant.

[11] There were then 10 court appearances (from January 19 to July 20, 2023) during which time efforts were made to secure local counsel for the applicant. Mr. Singh went on the record on July 20, 2023, and made a request for disclosure at that time.

[12] The applicant concedes that the period from November 3, 2022, until the formalization of Mr. Singh's retainer on July 20, 2023 (260 days), is a period which is properly described as defence delay because it was solely attributable to the applicant's effort to find local counsel after Mr. Pearce indicated that he would not be counsel and subsequently moved to get off the record. I agree that this concession is appropriate: Shaikh, at para. 66.

[13] The applicant submits that November 3, 2022, is the starting date for the delay solely attributable to him because before that date disclosure was still outstanding from the Crown. In other words, the applicant submits, delay before that date was also attributable to the Crown.

[14] To dispose of this issue, it is necessary to set out the partial chronology of appearances in the Ontario Court of Justice which follows. Before doing so, however, I note that, apart from the information, there is nothing in the record before me except for the transcripts of the various appearances. In other words, for the period prior to the retainer of Mr. Singh, neither party has submitted any evidence of any correspondence between the parties. As will be seen, it is therefore impossible for me to know what disclosure was made and when.

February 9, 2022 (appearance #6): the applicant appeared and advised the court that Mr. Pearce "asked that they send the rest of the synopsis and disclosure to him." This is the first reference to disclosure in the transcripts.

March 2, 2022 (appearance #8): the applicant appeared, again without Mr. Pearce. He said that he was still trying to arrange the retainer. Crown counsel said as follows (emphasis added):

… we're waiting for counsel Christian Pearce to confirm that he's actually retained because we have disclosure that we'd like to send to him but absent something formal from him confirming he's retained we're not prepared to send it out …

March 31, 2022 (appearance #10): the applicant appeared and asked that the disclosure be sent to Mr. Pearce. There was no Federal Crown present to respond on that date.

April 1, 2022 (appearance #11): Mr. Pearce appeared for the first time and set a date for the applicant's bail hearing.

April 11, 2022 (appearance #12): Mr. Pearce appeared to conduct the applicant's bail hearing, at the end of which a release order was made. The record before me does not include the transcript of the entire bail hearing (nor the bail package nor any exhibits from the hearing) and the portions of transcript which are before me do not indicate how much, if any, disclosure had been made by the Crown to that point. The transcript does record that Crown counsel read in "facts." Following the bail hearing, Mr. Pearce said as follows (emphasis added):

So I think disclosure is ready. I'm not retained on the case proper so perhaps maybe four weeks to get that part of the equation in line for [the applicant].

May 5, 2022 (appearance #13): Mr. Pearce appeared but again said that he was not retained, that the applicant was working on securing Legal Aid funding and may have to retain local counsel. Mr. Pearce added the following (emphasis added):

I know disclosure is ready in this matter but I think it not prudent to receive it until there is a retainer in place.

June 9, 2022 (appearance #14): Mr. Pearce appeared and advised again that he was not retained. The applicant was said to be looking for local counsel. There was no discussion of disclosure at this appearance.

June 23, 2022 (appearance #15): Neither the applicant nor Mr. Pearce appeared. In his exchange with the court, Crown counsel said: "I think we've sent disclosure to him."

June 30, 2022 (appearance #16): Mr. Pearce appeared and advised that the applicant had secured Legal Aid but was still looking for local counsel since Mr. Pearce was unable to assist him. Crown counsel said: "we have disclosure that can go out" and that he was in a position to have a Crown pre-trial conference ("CPT") as soon as counsel was retained.

July 28, 2022 (appearance #17): Mr. Pearce appeared and said as follows (emphasis added):

[The applicant] had been looking for local counsel. He's not had any success. I know it needs to move forward. So for the time being I'm prepared to go on the record and, we'll see how the file unfolds. So Mr. Anger has my contact information, he can send me disclosure and we'll ask for a date in early September … and we'll have a Crown pre-trial by then.

Crown counsel then said (emphasis added):

We can send you disclosure and have a Crown pre-trial before September 1st.

The matter was adjourned to September 8, 2022.

September 8, 2022 (appearance #18): Mr. Pearce appeared. No CPT had been conducted. Mr. Pearce said (emphasis added):

I understand the disclosure is still in the process of being vetted so maybe, subject to Mr. Anger, five weeks for us to get the disclosure, have a pre-trial and likely set a judicial pre-trial.

Crown counsel responded that he was content with that proposal as long as the CPT was held before the next date. He added as follows (emphasis added):

I will send [the assigned Crown] an email right now asking him to prioritize getting the disclosure vetted and out to you so that you can have that Crown pre-trial probably by the mid-end [sic] of September.

October 13, 2022 (appearance #19): Mr. Pearce appeared and the parties adjourned the matter to November 3, 2022, for the purpose of setting a JPT date.

November 3, 2022 (appearance #20): On this date Mr. Pearce advised that a JPT date had not yet been secured, although there is no evidence as to why this was so. He asked that the matter go over until December 15, 2022, so that a JPT could be both scheduled and held.

December 22, 2022 (appearance #22): Mr. Pearce advised that he was not in a position to conduct a JPT in this case because he was not going to be counsel at a preliminary inquiry or trial and therefore could not bind the applicant's eventual counsel at a JPT.

[15] The applicant concedes that disclosure was made at some point between the 18th and 19th appearances, although there is no evidence of when exactly or what was disclosed. He takes the position, however, that no disclosure was made before that time and that it was obviously not ready to be made before that time despite the Crown's assertions on the record to the contrary. Therefore, the applicant submits, delay prior to that date cannot be his responsibility alone. Even if the applicant had retained counsel promptly, the Crown was not ready to disclose until some time after September 8, 2022.

[16] Crown counsel says that the cause of delay prior to November 3, 2022, was the applicant's failure to retain counsel. Mr. Pearce made no complaints about any alleged failure of the Crown to disclose, so it is submitted, precisely because he knew that his retainer was the issue, not disclosure.

[17] In oral argument, Mr. Anger asserted that disclosure was sent out in "waves" in this case, that when he said in court that disclosure was ready to be sent it was true that the "majority" of disclosure was in fact ready to be sent out, and that only those portions which had not yet been vetted were held back. He submitted that to say no disclosure was made in this case before September 8, 2022 is "wrong." He submitted that the disclosure held back was not material.

[18] The problem with these submissions is that they are not supported by any evidence. The Crown did not lead any evidence on this application. At the hearing before me, Crown counsel requested and was granted a recess to consider whether he wished to add evidence to the record. When he returned to court, he advised that he was content to rely on the record that was filed by the applicant. As I have said, that record does not include any of the correspondence between the parties prior to Mr. Singh's retainer.

[19] Accordingly, I am left to glean what I can from the transcripts. From them, I make the following observations respecting disclosure and the applicant's problems retaining counsel.

4.2.2 Early Intake Period and Bail

[20] Although the applicant's reference on February 9, 2022, to "the rest of" the disclosure suggests that some had already been made, it is far from clear that that was the case. Indeed, it seems more likely that no disclosure had been made since the applicant was still in custody, Mr. Pearce had not yet appeared on the matter and was not on the record, and the transcript reveals that Crown counsel did not even have a note of who the applicant's counsel was.

[21] The Crown's first reference to the fact that disclosure was ready to be sent out was on March 2, 2022. There is no indication in the record that disclosure (which Crown counsel described as "extensive") was prepared and ready to be delivered prior to that date.

[22] Although the Crown submitted in its factum that the entire period from the swearing of the information (December 21, 2021) until the date on which the bail hearing was scheduled (March 31, 2022) constitutes defence delay, this submission was not pressed in oral argument. In any case, I do not agree that delay during this period is solely attributable to applicant. Although it is true that the applicant was seeking to retain counsel and was preparing to have a bail hearing, there is, quite simply, no evidence that the Crown was ready to provide its "extensive" disclosure prior to March 2, 2022. To this date, the delay cannot be described as delay attributable to the defence alone: both parties were in the process of organizing themselves for this case.

[23] Nor, as the Crown concedes, can the period between March 31, 2022, and the bail hearing on April 11, 2022, be called defence delay. Counsel was on the record for the bail hearing and was moving it forward.

4.2.3 Continued Problems with Retaining Counsel and with Disclosure

[24] It is more difficult to determine the significance of the repeated assertions by both counsel (on March 2, April 11, May 5, June 23, June 30, and July 28, 2022) that the Crown had advised that it was ready to make disclosure (or may have already made some disclosure) when, on September 8, 2022, Mr. Pearce advised that a CPT could not be held because disclosure was still being vetted. I note that Crown counsel did not challenge Mr. Pearce on this submission on September 8, 2022. Instead, he said he would urge the assigned prosecutor to accelerate the vetting process "so that you can have that Crown pre-trial." Accordingly, even if some disclosure had already been made (which is not clear), the disclosure which remained outstanding prevented the parties from having a CPT, which in turn prevented the scheduling of a JPT.

[25] Certainly, then, the delay while the Crown was vetting disclosure and the knock-on delay in getting to the point where the parties were ready to schedule a JPT cannot count against the applicant as defence delay. This period runs from July 28 to October 13, 2022. The record does not reveal why defence counsel had not set a JPT date by October 13, 2022, and therefore required a further adjournment to November 3, 2022. The applicant has not led any further evidence on this point. In my view, this period (from October 13 to November 3, 2022) constitutes defence delay.

[26] But what of the periods (March 2 to 31 and April 11 to July 28, 2022) before Mr. Pearce went on the record, when the Crown was advising that it was prepared to make disclosure as long as there was retained counsel to whom disclosure could be sent? This precondition to making disclosure is reasonable where the accused has said that he intends to be represented by counsel, but does the record support the assertion that disclosure was in fact ready, or that some of it was made, or that the portion of the disclosure which required vetting would have been vetted earlier if counsel for the applicant had been retained earlier and made his request for disclosure earlier?

[27] I find myself largely unable to answer these questions without resorting to some speculation since the record before me is so sparse. I do not know what (if anything) was disclosed to Mr. Pearce, or when it was disclosed, or in how many deliveries. I do not know the significance of the disclosure which had not been delivered (although it was significant enough to prevent the holding of a CPT). I do not know if vetting would have been started and completed earlier if Mr. Pearce had gone on the record earlier and had made his request that disclosure be sent to him earlier (although I am very much inclined to think that the answer to this last question is "yes").

[28] It is important to recall, at this stage of the analysis, that the burden is on the applicant: defence delay must first be deducted to determine whether net delay has exceeded the presumptive ceiling, and the burden does not shift to the Crown to justify delay above the ceiling until that determination has been made: Jordan, paras. 49 and 58.

[29] Here, the record is rife with defence requests for adjournments so that the applicant can retain counsel. The failure to retain counsel certainly meant that the applicant was not ready to receive disclosure. Moreover, I am not prepared to say that Crown counsel – an officer of the court – was saying something inaccurate when he advised the court and counsel for the applicant that disclosure was available. Mr. Pearce did not ever say on the record that he had received no disclosure whatsoever prior to September 8, 2022 (although it is possible that he did not).

[30] However, it is apparent that there were two factors that contributed to the delay to this point: the applicant's failure to retain counsel promptly and the Crown's failure to vet disclosure earlier. In somewhat similar (albeit more complex) circumstances, the trial judge in Rex v. Anderson, 2025 ONCA 172, apportioned two months of the "intake period" in that case equally between the defence and the Crown because both had failed to move the case forward. In other words, he attributed 1 month of that portion of the intake period to the defence. On appeal, sitting ad hoc, Code J. wrote for the court as follows (at para. 19; emphasis in the original):

In conclusion concerning this first period of "defence delay," the trial judge was not suggesting any fault or misconduct by apportioning one month of the early delays to the defence. The trial judge correctly noted that "defence delay" includes practices that "exhibit marked inefficiency or marked indifference toward delay." This is a direct quote from the unanimous Supreme Court decision in R. v. Cody, 2017 SCC 31, at paras. 31–35. In allowing this case, with its multiple early problems, to languish for seven months without an election and without judicial intervention, the Crown and the defence both "exhibited marked inefficiency." It was appropriate, in my view, to attribute two months of delay during the "intake period" to the failure to schedule an early JPT. It was also appropriate to apportion that delay equally between the Crown and the defence, consistent with the modern "contextual approach" to assessing "defence delay" which requires that "All relevant circumstances should be considered to determine how delay should be apportioned." See: R. v. Hanan, 2023 SCC 12, at para. 9, rev'g on other grounds R. v. Hanan, 2022 ONCA 229, at paras. 47–59; R. v. Boulanger, 2022 SCC 2, at paras. 8–10; R. v. Albinowski, 2018 ONCA 1084, at para. 46; R. v. Liu, 2024 ONSC 2022, at paras. 21–24.

[31] In the case before me, it is obvious that the defence approach to this case during these periods was marked by inefficiency and indifference toward delay. On the other hand, it is also obvious that the Crown was not vetting disclosure as early it should have been. Both parties contributed to the delay at these times. Much later, as in Anderson (see paras. 17–19), eventually the matter was put before a judge of the Ontario Court for case management purposes because of the persistent delays. However, that request was not made by the Crown until March 16, 2023 (appearance #26). Before that date, both parties failed to address the issues (relating to both counsel and disclosure) in the proactive way encouraged by the Supreme Court of Canada: Jordan, paras. 112–113. The conduct of the defence was characterized by inaction, which itself may constitute "defence conduct that is not legitimate": Cody, para. 33.

[32] On the sparse record before me, even if some of the disclosure was not ready, the applicant has not satisfied me that he should not be held responsible for some portion of this intake period delay. However, I also do not agree with the Crown that the applicant is responsible for all the delay in these periods because the Crown was not ready to make disclosure, or at least not ready to make sufficient disclosure. As in Anderson, I am of the view that it is fair and reasonable to divide these periods of delay (March 2 to 31 and April 11 to July 28, 2022) evenly between the parties: see also Boulanger, at para. 10.

4.2.4 Summary of Conclusions Respecting the Period Before Mr. Singh Was Retained

[33] I summarize my conclusions respecting the delay prior to the retainer of Mr. Singh as follows:

• The period from the swearing of the information (December 21, 2021) until the Crown's first indication that disclosure was ready to be delivered (March 2, 2022) is not attributable to the defence alone (see para. 22, above).

• As the Crown concedes, the period from March 31 to April 11, 2022, when the bail hearing was conducted, is not attributable to the defence (para. 23).

• The periods from March 2 to 31 and from April 11 to July 28, 2022, when Mr. Pearce got on the record, is appropriately apportioned between the parties. I attribute half of this period, or 68.5 days, to defence delay (para. 32).

• The period from July 28 to October 13, 2022, delay caused by the failure of the Crown to have vetted disclosure, is not attributable to the defence (para. 25).

• The period from October 13 to November 3, 2022 (21 days), during which time Mr. Pearce failed to secure a JPT date, is defence delay (para. 25).

• As the applicant concedes, the period from November 3, 2022, to July 20, 2023 (260 days), while the applicant was looking for local counsel, is defence delay (para. 12).

[34] In total, prior to the retainer of Mr. Singh, delay attributable to the applicant is 349.5 days, or 11.49 months.

4.3 The Period After Mr. Singh Was Retained by the Applicant

[35] Management of the case was much improved once Mr. Singh was retained. Nevertheless, the applicant concedes that two periods of delay after Mr. Singh's retainer are properly characterized as defence delay. The Crown argues that two other periods are also attributable to the defence. I address these four periods of delay in chronological order.

4.3.1 Disclosure-Related Delay

[36] The first contested period relates to the time immediately following Mr. Singh's retainer. This argument was not presented in the Crown's factum and was raised for the first time in oral argument. A short chronology is required to dispose of it.

April 28, 2023 (appearance #28): Mr. Pearce was removed from the record. It was anticipated that Mr. Singh would go on the record. Crown counsel said as follows (emphasis added):

And this is a case where the matter has gone stale in case management court because Mr. Pearce has been on the record and trying to find local counsel for [the applicant] but fortunately Mr. Singh is now here ready to pick up the case so I feel like we're moving forward in the right direction. Disclosure is available, if it hasn't been given to former counsel it's available for Mr. Singh.

July 20, 2023 (appearance #31): Mr. Singh appeared and advised that he was retained. He noted that he had already requested disclosure from the Crown (and the record includes an email from Mr. Singh requesting disclosure earlier that morning). Crown counsel responded on the record as follows:

That's fine. [The applicant's] former counsel still has disclosure and hasn't provided it back so we've reached out to ask for it so that's why you don't have disclosure from us, we're still trying to get it back from I think he had Mr. Pearce …

August 17, 2023 (appearance #32): Crown counsel asked Mr. Singh if he had obtained disclosure from Mr. Pearce. Mr. Singh responded (correctly, in my view): "No. We get disclosure from the Crown." The matter was put over for disclosure and a CPT. The applicant's counsel made a follow-up inquiry about disclosure by e-mail on August 25, 2023.

September 21, 2023 (appearance #33): Mr. Singh advised that he understood that Mr. Pearce had not yet returned the disclosure to the Crown and that, therefore, "this file is stalled right now." Crown counsel said as follows:

I think we have – I think we just made another copy to move it along, or it looks like we have disclosure to be picked up now. … So it was either returned to, I don't know if the answer is it was returned to us or we just spent some time at a photocopier, but either way it looks like disclosure is available now.

The email correspondence in the record shows that Mr. Singh's assistant followed up on the outstanding disclosure on September 20, 2023, and was advised that day that disclosure was ready.

October 19, 2023 (appearance #34): Mr. Singh advised that he was in possession of disclosure. Crown counsel again reported that he could not remember whether Mr. Pearce had returned the disclosure, or the Crown had made another copy of it for the applicant's new counsel.

[37] On this record the Crown argues that the period following Mr. Singh's retainer until September 20, 2023, constitutes defence delay because it was caused solely by the failure of Mr. Pearce to return disclosure to the Crown so that it could then be produced to Mr. Singh. The applicant argues that the Crown knew no later than April 28, 2023, that Mr. Pearce was to be removed from the record and did nothing to ensure that the applicant's new counsel would have disclosure promptly. Upon Mr. Singh's request for disclosure on July 20, 2023, the Crown should have made a new copy immediately.

[38] In my view, this is another period of delay where responsibility is shared. Some portion of this delay is attributable to the change of counsel and the failure of Mr. Pearce to return the disclosure (although it is not clear if he never did, or, if he did, when) to the Crown: Regina v. Lemioer, 2019 SKCA 95, at paras. 36–43.

[39] On the other hand, providing disclosure is the obligation of the Crown. Here, since at least April 28, 2023, the Crown knew that Mr. Pearce would be off the record yet was unable to provide disclosure to Mr. Singh until September 20, 2023. The record does not allow me to know when Crown counsel asked Mr. Pearce to return the disclosure (other than it appears that it was on a date prior to July 20, 2023), or whether the Crown ever received the disclosure from Mr. Pearce, or whether the Crown produced a new copy of it for Mr. Singh. As the Crown has not added to the record, I have nothing but the transcripts and the emails between Mr. Singh's office and the Crown to which I have referred. These do not show that the Crown was treating this problem as a matter of high priority, which it ought to have done given the stale nature of the proceedings as of the date of Mr. Singh's retainer.

[40] Compare the conduct of the Crown in Rex v. Flint, 2024 ONSC 4273, which also involved a change in counsel. The case was one of serious allegations of various sexual and other violent offences. Somji J. wrote of the Crown's efforts to mitigate the delaying effect of the pandemic on that case as follows (at para. 24; emphasis added; citation omitted):

Notwithstanding the court closures from the pandemic, I find the Crown was diligent in mitigating delay as required to do so […]. For example, the Crown provided disclosure in a timely fashion to the Applicant's initial counsel Mr. Wilcock and Mr. Snider in the spring of 2020. When the Applicant dismissed Ms. Cremer, the Crown facilitated the transfer of disclosure by offering the Applicant to attend the Crown office the very same day to retrieve a new copy of the disclosure.

[41] By contrast, the record in this case shows the Crown to have been uncertain about what had happened respecting disclosure on each of the appearances summarized above at para. 36.

[42] As in Lemioer, I have concluded that some portion of this delay is attributable to the change in counsel, which is the responsibility of the defence alone, and some of it to the Crown, which failed to ensure that disclosure in this increasingly old case was redeployed promptly after the change in counsel. In this case, the Crown was expressly aware of the issue by no later than April 28, 2023 and knew that Mr. Singh would be coming on the record. The Crown should have at that time taken steps to deal with the issue. Mr. Singh was formally on the record on July 20, 2023, and requested disclosure on that date. By then, the Crown had had nearly three months to be prepared for that request. Instead, it was not ready to make disclosure until two months later, on September 20, 2023.

[43] In my view, on these facts, the defence is responsible for the delay resulting from the change of counsel to July 20, 2023, and the Crown is responsible for the failure to provide disclosure promptly thereafter. If on July 20, 2023, after nearly three months since his removal from the record, the Crown had not heard back from Mr. Pearce, it should have made a new copy of the disclosure for Mr. Singh immediately.

[44] In the result, this issue adds nothing to the defence delay in this case as the applicant has already conceded that the period from November 3, 2022 to July 20, 2023 constitutes defence delay (see para. 12, above).

4.3.2 The Scheduling of the Preliminary Inquiry

[45] The first conceded portion of defence delay after the retainer of Mr. Singh relates to the scheduling of the preliminary inquiry, which was expected to require two days of court time. The trial coordinator offered dates beginning on April 15, 2024, all of which were available for the Crown. The first offered date on which the applicant's counsel was available was July 25, 2024, and that is when the preliminary inquiry commenced. The parties agree that the period from April 17 to July 25, 2024 (99 days) constitutes defence delay.

4.3.3 The Scheduling of the JPT in the Superior Court

[46] The second conceded portion of defence delay after Mr. Singh's retainer relates to the scheduling of the JPT in this court. The trial coordinator offered April 17, 2025. The Crown was available, but defence counsel was not. The next available date was May 21, 2025, on which both parties were available. The parties agree that the period from April 18 to May 21, 2025 (33 days) constitutes defence delay.

4.3.4 The Scheduling of the Pre-Trial Motions

[47] The parties are divided on the question of whether another portion of the delay in this court is attributable to the defence. The parties have scheduled three days of pre-trial motions in this case commencing on December 15, 2025. The trial coordinator had offered earlier dates for those motions. The Crown was available for dates beginning of October 8, 2025. Defence counsel was not available until December 15, 2025. Accordingly, the Crown argues that the defence is responsible for the 68 days of delay between October 8 and December 15, 2025.

[48] The applicant argues that the fact that his counsel was not available on October 8, 2025, is irrelevant because this fact caused no delay in the scheduling of the trial. In other words, even if his counsel had been available on October 8, 2025, the applicant submits, the trial would still have been scheduled for February 23, 2026. The fact that the motions are to be heard in December, then, makes no difference to the total delay in this case.

[49] The record respecting this issue is comprised mostly of email communications with the trial coordinator. Again, it is necessary to set out a short chronology.

May 21, 2025: The parties had a JPT in this court.

May 23, 2025: The trial coordinator contacted both parties about scheduling the pre-trial motions and the trial.

May 26, 2025: The trial coordinator offered dates for the pre-trial motions commencing on October 8, 2025, and for a trial in 2026. With respect to the trial, counsel were advised that they could choose any date in 2026 with the exception of certain weeks, including the weeks of January 26, February 2, 9 and 16, 2026. The Crown provided its availability for the pre-trial motions but was silent on its availability for trial. Counsel for the applicant then advised that he was only available for the pre-trial motions starting on December 15, 2024. The defence also advised that it was available for only four days in January but any time in February.

May 27, 2025: The trial coordinator instructed the parties to hold the December dates for the pre-trial motions, and said that counsel could choose any date for trial in 2026 commencing on February 23, 2025. Counsel for both parties advised that they were available for trial on February 23, 2025.

May 28, 2025 (appearance #52): The pre-trial motion dates and the trial dates were confirmed on the record before Reid J.

[50] As I have said, the Crown argues that the applicant is responsible for the delay between October 8 (the first date on which both the court and the Crown were available for the pre-trial motions) and December 15, 2025 (the date on which the applicant's counsel was available for the motions). That submission might be correct unless the unavailability of the applicant for earlier pre-trial motion dates had no effect on the trial date. The applicant says that it is clear that the date of the pre-trial motions had no effect on the trial date. It was going to be no earlier than February 2026 no matter when the motions were held.

[51] In this respect, in my view, the applicant is correct. His counsel was not available on the dates offered in January. The trial therefore could not begin on a date earlier than February 23, 2026. The better question, then, is not whether the delay of the pre-trial motions constitutes defence delay, but whether the delay of the commencement of the trial from January to February constitutes defence delay. Based on the trial coordinator's May 26, 2025, email, the trial could have been accommodated during the weeks of January 5 and 12, or 12 and 19, 2026.

[52] However, the record does not reveal whether the Crown was available for trial in January since the Crown did not respond to that part of the trial coordinator's May 26, 2025, email, and then did not make any comments on the record before Reid J. on May 28, 2025, when the dates were confirmed. In my view, in the face of the Crown's silence on the issue, it cannot be concluded that this delay is attributable to the defence alone. I note that the Crown did not submit otherwise on the hearing of this application.

4.3.5 Summary of Conclusions Respecting the Period After Mr. Singh Was Retained

[53] I summarize my conclusions respecting the delay after the retainer of Mr. Singh as follows:

• The period from July 20 to September 20, 2023, during which time the Crown was still vetting disclosure, is not defence delay (see para. 43, above).

• As the applicant concedes, the period from April 17 to July 25, 2024 (99 days), when his counsel was not available for the preliminary inquiry, constitutes defence delay (para. 45).

• As the applicant concedes, the period from April 18 to May 21, 2025 (33 days), when his counsel was not available for a JPT in this court, is defence delay (para. 46).

• Neither the delay in scheduling the pre-trial motions nor the trial in this court constitutes defence delay (paras. 51 and 52).

[54] In total, following the retainer of Mr. Singh, delay attributable to the applicant is 132 days or 4.34 months.

4.4 Total Defence Delay and Net Delay

[55] The total defence delay in this case is the defence delay prior to Mr. Singh's retainer (349.5 days or 11.49 months) plus the defence delay after his retainer (132 days or 4.34 months): 481.5 days or 15.82 months.

[56] Subtracting the defence delay (481.5 days or 15.82 months) from the total delay (1,533 days or 50.39 months) leaves a net delay of 1,051.5 days or 34.60 months, more than four months over the presumptive ceiling.

5. Exceptional Circumstances and Remaining Delay

[57] As the net delay exceeds the 30-month ceiling, the delay is presumptively unreasonable, and the burden shifts to the Crown to rebut this presumption by reference to exceptional circumstances. Such circumstances may be demonstrated where the case is one of special complexity and/or where discrete events have resulted in delay: Jordan, paras. 71–81.

[58] The Crown does not contend that this is a complex case but does take the position (with which the applicant agrees) that a single discrete event caused some delay in this matter. During the preliminary inquiry, the judge hearing the matter was not available on a date that had been set for the continuation of the inquiry. This led to a delay of 13 days, from February 12 to February 25, 2025.

[59] The record does not disclose why the preliminary inquiry judge was unavailable, but I am prepared to accept the joint position of the parties that this delay constituted a discrete event and that the resulting delay should be deducted from the net delay.

[60] Subtracting the discrete event delay (13 days or 0.43 months) from the net delay (1,051.5 days or 34.60 months) leaves a net delay of 1,038.5 days or 34.14 months, more than the 30-month ceiling fixed by the Supreme Court in Jordan.

6. Conclusion

[61] As the remaining delay in this case exceeded the Jordan ceiling and is not justified by the complexity of the case, the applicant's Charter right to a trial within a reasonable time has been breached.

[62] The appropriate remedy for that breach is a stay of proceedings: Jordan, para. 47.

[63] The charges against the applicant are therefore stayed.

I.R. Smith J.

Released: October 22, 2025

Footnote:

[1] I return to the treatment of the period of delay between March 2 to March 31, 2022, under the next heading.