Court File and Parties

Court File No.: 22-5669 (Windsor) Date: 2025-10-31 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Steven Folkes, Applicant

Counsel: M. Witteveen, Agent for the Director of Public Prosecutions/Respondent P. Brown, Counsel for the Applicant

Heard: April 22, May 30, August 25 and October 10, 2025

Before: McArthur J. (orally)

Ruling on s. 11(b) Application

Overview

[1] The applicant makes application for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter.

[2] This application was heard after the trial was completed and judgment of the court made where Mr. Folkes was found guilty of the charge.

[3] Further submissions of counsel on this application were requested by the court after initial submissions. These were received and further oral submission by both counsel were made on August 25, 2025. After that, on August 29, 2025, the Ontario Court of Appeal released its decision of R. v. Dos Santos, 2025 ONCA 598 that specifically addressed how mistrials are to be assessed within the Jordan framework. Counsel was made aware of this by the court and additional written and final submissions were made by counsel on October 10, 2025.

Background

[4] The applicant/defendant was arrested and charged on September 18, 2018 with s. 5(2) CDSA, the possession of cocaine for the purpose of trafficking, as a result of the execution of a search warrant, and observations made and items seized that involved approximately 70 gms of cocaine and other items, all of which were indicia of trafficking in the prohibited substance. The court has found the defendant guilty of the charge.

[5] The total delay to the anticipated end of this judge-alone trial in the Superior Court of Justice was 5 years, 10 months and 7 days, just over 70 months, which exceeds the presumptive ceiling period of 30 months as set in R. v. Jordan. This period represents the period from the time of arrest on September 19, 2018 to July 26, 2024.

[6] If the trial had been completed as had been initially scheduled, the overall period would be September 19, 2018 to January 5, 2024, that is, 63 months and two weeks. These various dates will be discussed further later in these reasons.

[7] During supplementary submissions requested of counsel on August 25, 2025, the defence counsel submitted that this case was at and perhaps just above the 30-month ceiling for delay if the evidence had been completed as initially scheduled by January 5, 2024.

[8] The Crown submits the net delay then was just over 15 months at that time.

[9] It is acknowledged and understood by all parties that the trial evidence was not actually completed until February 11, 2025 which was largely due to the unavailability of defence counsel because of a family matter and other necessary rescheduling. This feature has no bearing on this ruling.

[10] The initial trial had been set to commence on January 2, 2024 for four consecutive days. This was not a complex case. The trial was not completed in the time estimated. Unfortunately, the trial proceeded by instalments thereafter in July 2024 and February 2025.

[11] The applicant first filed a formal notice of a s. 11(b) Charter application on June 24, 2024.

[12] After January 5, 2024, trial counsel for the parties communicated between each other about delay as a result of the additional trial dates needed since the trial evidence had not been completed by January 5, 2024.

[13] There was nothing raised between the parties nor a formal application or reference as to leave being sought for this application until this issue was raised in initial oral submissions by counsel. The court then asked counsel to address this feature in subsequent submissions to the court.

[14] As mentioned, counsel acknowledged that trial counsels had discussions between them between January through to April or May 2024, however, the court is unaware of the details of those communications and conversations.

Positions of the Parties

[15] The defence submits:

• (1) that had the trial proceeded and been completed by January 5, 2024, there was no issue as to delay and that the case was approximately at the 30 month mark due to prior counsel's involvement and various other issues that arose prior to current counsel along with other scheduling challenges and unavailability that counsel had with stacking of other cases in the Ontario Court of Justice;

• (2) that, even without accounting for the ongoing nature of the trial proceedings, and even with the deduction of nearly two years of defence delay, the period of delay remaining is 3 years, 10 months and 21 days, approximately just shy of 47 months, and therefore remains presumptively unreasonable;

• (3) that the Crown is unable to demonstrate defence delay or exceptional circumstances, including the mistrial application during the trial; and

• (4) as a result, a stay should be granted.

[16] The Crown submits:

• the presumptive ceiling in this case went to March 19, 2021 and that defence delay and exceptional circumstances amounts to a total of 3 years, 11 months and 3 days;

• the defence failed to raise the concerns as to s. 11(b) and that the defence inaction deprived the Crown and the court the ability to take proactive measures to remedy any delay; and

• the mistrial application and proceedings amounted to either defence delay or exceptional circumstances.

Basic Overall Case Chronology

[17] An abbreviated chronology of events in this case is as follows below to provide context for the analysis and reasons for this ruling:

2018 to 2023

(a) September 18, 2018 Mr. Folkes was arrested and charged and bail was set by September 28th. There were two other individuals (Royse and Rees) also charged in relation to this search for which co-counsel sometimes appeared as agent for prior counsel for Mr. Folkes who was not current counsel;

(b) The preliminary inquiry was set for all accused on January 24, 2020 and adjourned due to illness of Mr. Folkes and one of the counsel, and reset for May 26, 2020;

(c) The COVID pandemic soon commenced and the preliminary inquiry was presumptively adjourned, one co-accused counsel was judicially appointed and a judicial pretrial conducted and, by September 21, 2020, counsel for Mr. Folkes had not heard from him for 6 months and a warrant for Mr. Folkes' arrest was issued;

(d) By May 3, 2021, Mr. Folkes had been arrested on the warrant and was released with a fail to appear charge. It is thereafter unknown on this record as to the circumstances with the other accused persons, but it otherwise appears to be substantial. Current counsel for Mr. Folkes by this time represented him;

(e) Ultimately, a preliminary inquiry commenced on February 15, 2022 and the remaining one hour of a preliminary inquiry was completed by October 18, 2022;

(f) At the November 4, 2022 assignment court appearance, a judicial pretrial was set for November 30, 2022 but did not proceeded since defence counsel had not filed the required report. A pretrial was eventually held on January 10, 2023;

(g) On February 10, 2023, four 4 days were estimated by counsel and the case was set for trial for January 2, 3, 4 and 5, 2024 that was the first available dates due to COVID stacking in relation to other cases;

(h) At the trial readiness court on December 1, 2023, the trial proceeding was confirmed.

2024 to 2025

(i) Trial commenced January 2, 2024 and a mistrial application is made by defence during a police witness' testimony. The case continued on the subsequent dates but the evidence was not completed. Trial continuation dates were eventually set for July 22 and 26, 2024;

(j) On June 25, 2024, defence served and filed a s.11(b) Charter application;

(k) Trial did proceed on July 22, 2024;

(l) At the August 2, 2024 assignment court, the continuation date was set for September 6, 2024. Defence counsel was unable to appear due to a family member's passing, and ultimately the date of February 11, 2025 was confirmed and the evidence in the trial was completed on that date.

Pretrial Proceedings and s. 11(b) Issue

[18] The Crown first raised the issue of defence delay in its Form 17 memorandum filing dated November 18, 2022. Based on the history of matters even before reaching the Superior Court, substantial defence delay and other involvement of other co-accused was involved. By the time of moving to Superior Court, the sole charge involved Mr. Folkes.

[19] The defence reply in its pretrial memorandum dated November 30, 2022 noted that the dates from February 15, 2022 to August 19, 2022 inclusive were "not defence delay" with the explanatory note that preliminary inquiry was adjourned several times due to issues on the part of the Crown as to witness unavailability, etc. Defence also indicated in its filing that it intended to bring a stay application for a s. 11(b) Charter breach.

[20] On February 10, 2023, notwithstanding the indications in defence counsel's memoranda, the trial date was set in this court for four days. The days set for trial were January 2, 3, 4 and 5, 2024. There was no reference at that time by defence to a s. 11(b) application. Defence counsel in submissions acknowledged that defence counsel was unavailable on earlier dates that were available to the court and Crown.

[21] Subsequently, the Crown filed a Trial Readiness Report dated November 27, 2023 in advance of the January 2, 2024 assignment court to set the trial date. The defence did not file a Trial Readiness Report nor provide any other notice regarding an 11(b) application then nor soon after that time.

[22] The trial commenced on January 2, 2024 and proceeded until January 5, 2024. The trial was not completed on January 5th. The details of those dates will be discussed further in this ruling.

[23] This s 11(b) application was served by defence and filed with the court on June 25, 2024. This was approximately 18 months after the exchange of pretrial memoranda referred to earlier and about 6 months after the first four days of trial had been completed in January of 2024.

[24] This court accepts defence counsel's representations that the defence had ordered the transcripts of the proceedings throughout on February 5, 2024, had received some transcripts by April 25, 2024 with the balance of transcripts received soon after, then conducted an assessment as to delay, prepared and filed this application.

[25] The defence submits that:

• In its factum, the total period from the charge date of September 19, 2018 to July 26, 2024 is 5 years, 10 months and seven days, just over 70 months;

• Delay from September 21, 2020 to January 6, 2022 should be deducted as defence delay which included the defendant's failing to attend the preliminary inquiry. This would be 472 days;

• A further 154 days of delay after January 6, 2022 are arguably attributed to the defence; and

• The total delay attributed to the defence on this basis would be 626 days or approximately 21 months, leaving the case at approximately 49 months which is 19 months beyond the presumptive ceiling of 30 months.

[26] The Crown argues that the defence caused various distinct periods of delays, there were exceptional circumstances, and, in the alternative, the COVID pandemic caused enough delay to bring this case below the Jordan ceiling.

[27] As mentioned earlier, the Crown raised the delay by defence in bringing this application which is the first issue to be addressed in this ruling.

Analysis & Discussion

[28] At the outset, this court makes the following preliminary observations and findings:

• The involvement of this court in this case started with the November 4, 2022 intake/assignment court. By this date, the case had been in the Ontario Court of Justice for approximately 47 months;

• When this matter was before the Superior Court, the only reference by defence as to a s. 11(b) Charter application arose in defence counsel's memorandum dated November 30, 2022. This was in response to the Crown's indications of delay. Defence counsel's memorandum was then late-filed and delayed the judicial pretrial being scheduled. The defence's position then was to take exception to the period of delay raised by the Crown such that the dates from February 15, 2022 to August 19, 2022 (a 6 month period) inclusive ought not to be attributed as defence delay;

• If the defence's position was that by November 30, 2022 the case was already beyond the presumptive ceiling even before getting to the Superior Court, this was neither articulated nor revisited at the critical times of setting the trial dates and confirming trial readiness;

• There is little doubt that the collective myriad factors that included the non-communication with counsel and non-attendance at court by Mr. Folkes, the involvement of co-accused, the completion of the preliminary inquiry and failing to file the required forms by defence, reasonably took the case below the presumptive ceiling. This is particularly supported by the defence proceeding to set a 4-day trial in the Superior Court without reference to any delay issue and which did not arise again until after the trial had commenced; and

• in June 2024, the defence then filed a s. 11(b) application for a stay of proceedings and leave was not sought.

Delay in Bringing a s. 11(b) Application and Leave under Rule 43.02

[29] The Court has the power under Rule 34.02 to summarily dismiss an application. The Rule provides the presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[30] Rule 34.03 of the Criminal Proceedings Rules states where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant's non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and

(k) any other factors the judge considers relevant to his or her determination.

[31] The issue of delay in s. 11(b) applications has already been addressed in many cases by this and other courts particularly where the COVID-19 pandemic has created additional widespread ramifications including backlogs of courts at both levels. See R. v. Shen, 2022 ONSC 3274, R. v. Malhi, 2023 ONSC 7, R. v. Botsford, [2022] O.J. No. 1634, R. v. Nigro, 2023 ONCJ, R. v. Yizhak, 2022 ONCJ 476, amongst many others.

[32] Shen and Mahli, in particular, recognized the discretion of this court to permit or not permit an application to proceed despite the Crown not objecting to hear the application. In these and other cases, this court has observed that the Crown bears a constitutional burden to bring the defendant to court in a timely manner and, at the same time, the defendant has a duty to act proactively and must raise any issue of delay reasonably and expeditiously. The failure to do so is contrary to the proper administration of justice as expressed through the application of the court's Practice Direction and the Criminal Proceedings Rules.

[33] As also expressly addressed in Mahli, s. 11(b) is always a potential issue depending on the date set and it is once the date is set then meaningful notice can and should be given. When delay arises in the conduct of the defendant in a s. 11(b) application, this shapes the lens through which any efforts made by the Crown and the court to reasonably mitigate the delay should be viewed might be an issue.

[34] This court adopts the reasoning of Mahli and the other cases cited above without exception. As this court well-knows from past, current and ongoing experience from the pandemic and otherwise, "while reasonable mitigation like triage is still required, little wriggle room has been left for mitigation." The increasing pressures on the court including judicial resources continue unabated.

[35] In this case, once the initial trial date was set on February 10, 2023 or even at the trial readiness court on December 1, 2023, the defence should have given meaningful notice to both the Crown and court since, to argue otherwise now, leaves the Crown and the court unaware and incapable of any mitigating response.

[36] Justice Goldstein's statements in Shen are likewise applicable here. He stated:

[21] The Practice Direction anticipates that during the original Superior Court pre-trial defence counsel may not have raised s. 11(b). That is because delay may be generated after the form is filed. The Practice Direction mandates notice to the court and the Crown. The Practice Direction also mandates a judicial pre-trial, to ensure that what happened here does not happen. The Practice Direction mandates that the defence material be filed 30 days prior to the hearing of the s. 11(b) application. Thus, the actual filing deadline is not 30 days prior to trial, but at least 90 days.

[22] I am sympathetic to the notion that there are a multitude of practice directions, notices, and orders emanating from the Court and the different regions. I understand that it may be confusing figuring out which practice direction applies in which situation. That does not excuse counsel from the obligation of compliance, of course.

[23] Perhaps more importantly, as a matter of common sense it should be apparent to any criminal counsel that when they become aware that they will be filing an application that they must act. Counsel cannot just keep it to themselves and then spring it. Counsel shouldn't need a practice direction to tell them that failing to alert Crown counsel and the court about a serious application will generate delay, complication, and other adverse consequences.

[24] Moreover, the Jordan framework, in place since 2016, takes account of defence conduct – and explicitly encourages cooperation. As Moldaver, Karakatsanis, and Brown state at para. 86 of Jordan:

… this requirement reflects the practical reality that a level of cooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing - rather than diminishing - timely justice.

[25] As the Supreme Court noted in Cody at para. 36, "… all participants in the criminal justice system share this responsibility."

[37] As for this application being served and filed after the initial 4 days at trial, this court finds the failure to file its s. 11(b) Charter material is outside any reasonable time and such a failure cannot be regarded as minor or technical. Even though the counsel for both parties may have discussed an issue of delay, the defence awaited transcripts and then conducted an assessment before filing the application. Perhaps more significantly, literally months went by without the court being notified. If delay was always an issue with the defence, the last to know here was the court and this made any practical feature of mitigation moot.

[38] The defence applications must, except in rare circumstances and where leave is sought, must comply with the Provincial Practice Direction/Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings. The Practice Direction mandates that s. 11(b) applications be heard – not just filed – at least 60 days in advance of trial. The reason for the direction and rules is to prevent exactly what happened here; systemic issues arose with knock-on effects that included trial-by-instalment for this case and for other cases with increased overall delay in the system. This court is always aware that there is a need to be flexible in some situations that might arise, however, counsel must be prepared to succinctly address the leave factors at the earliest opportunity or risk failing to advance the application.

[39] As found earlier, it was obvious from the defence's late-filed pretrial memorandum that the defence position then was that the presumptive Jordan deadline was already breached. In the absence of any formal notice of application from defence, or at least notifying that the defence would be seeking leave, the court at least was left in the dark and could not be expected to respond in any manner as to any s. 11(b) issue. Indeed, considering the pandemic events and associated backlogs, the initial involvement of co-accused persons and counsel, illness of counsel and the defendant, changes of counsel, the defendant not communicating with his counsel, not attending court and being arrested, among other features, the participants could have reasonably assumed a s. 11(b) application may have been without merit.

[40] In applying the factors set out in Rule 34.03 in this case, this court finds as follows:

• the non-compliance with the Practice Direction and the Rules was substantially delayed, not technical nor insignificant;

• application has no reasonable prospect of success, as will be explained later;

• the manner in which the application developed and proceeded did not allow for its orderly and expeditious conduct in the context of the trial of the case;

• the notice given to the Court, in particular, was inadequate;

• the explanation for the failure to comply with the Practice Direction and the Rules overlooked any reasonable notice to the court and is inadequate;

• the manner the application was proceeded with moderately upended the courts powers to streamline the case and dispose of issues that had little chance of success.

[41] In view of these collective findings, leave would not have been granted to the defendant for the court to consider the application.

Delay Where Trial Evidence Not Completed as Initially Scheduled

[42] However, even if this court had granted leave to hear the application, the application should be dismissed for these reasons to follow.

[43] Upon first blush, a period of time of 70 months appeared substantially well-beyond the presumptive ceiling. However, in this case the real issue is the delay after the trial evidence was not completed in the four-day period that it was scheduled for. This is coherent with a position of the defence as outlined above.

[44] In this case, it is unnecessary to conduct an entire analysis under the Jordan framework in view of the issue defined and narrowed. The court need not go beyond the first four days of trial as scheduled, that is, January 5, 2024.

[45] In these circumstances, I have been present and heard the evidence and also considered the period of time which evidence was necessarily heard over the trial as substantially confirmed in the court docket trial summary. A brief summary with pertinent details of each of these four days is as follows:

• On January 2, 2024, the trial commenced and evidence was heard for the full day involving Cst. Johns;

• On January 3, 2024 immediately after the morning recess at 11:25 a.m., the issue arose on cross-examination as to the evidence of Cst. Johns. Shortly after resuming, the balance of the day involved defence bringing a mistrial application which was denied at the end of that day.

• On January 4, 2024, defence addressed the court with a renewed mistrial application which was also denied and the trial resumed by 12:17 p.m. The cross-examination of Cst. Johns was completed at 2:42 p.m. A further officer, Cst. Medeiros was examined in chief through to the end of the day.

• On January 5, 2024, the defence raised the issue of the authenticity of the video taken by Cst. Medeiros that depicted the defendant. That voir dire and ruling proceeded from 10:20 a.m. until 11:10 a.m. and the video was ruled as authentic. This was likewise an application not anticipated by the court nor Crown.

• By 2:25 p.m. that afternoon on January 5th, the court raised with counsel that only 2 witnesses of many anticipated had been called and that additional time appeared to be required. A further witness, Cst. Lemke's evidence was heard by the end of that day.

[46] On July 22, 2024 and February 11, 2025, evidence was heard for part of each of these days. On July 22, 2024, court heard evidence from 10:45 a.m. through approximately 4:30 p.m. On February 11, 2025, the court heard evidence from 10:55 a.m. through to 3:50 p.m.

The Mistrial Applications and Voir Dire as to the Video

[47] This court raised the decision in R. v. Dos Santos, 2025 ONCA that was released on August 29, 2025 and counsel were asked for further submissions that have been received, reviewed and also considered.

[48] In Dos Santos, I was the initial trial judge who declared a mistrial and found that the defence was not at fault in granting a mistrial. The Ontario Court of Appeal stated as follows, with emphasis in bold print:

[33] Defence delay must be deducted. Accordingly, mistrials resulting solely or directly from illegitimate defence actions, post-mistrial delay arising solely or directly from defence unavailability, or mistrial delay that is waived by the defence may be deducted: Jordan, at paras. 60-66; Way, at paras. 33, 41; Mallozzi, at para. 42.

[34] If the net delay exceeds the ceiling, the Crown must prove exceptional circumstances. For mistrial delay, this requires showing that (1) the mistrial was reasonably unforeseeable or unavoidable, and (2) the resulting delay could not reasonably have been mitigated: Way, at para. 35, citing Jordan, at para. 69.

[35] While mistrials may often fall within the category of discrete exceptional circumstances – unforeseeable or unavoidable developments that derail a trial – this is not automatic: Way, at para. 36, quoting Jordan, at para. 73. Contrary to the application judge's conclusion, mistrials are not presumed to be discrete exceptional circumstances. Such a presumption would encourage complacency. Rather, as the Court of Appeal of Alberta correctly held in Way, the Crown must always discharge its burden of proving exceptional circumstances under Jordan: Way, at paras. 33, 39. Mallozzi, which the application judge relied on, does not support a different approach. In that case, the Crown satisfied its burden because the jury selection issues were unforeseeable and addressed promptly: Mallozzi, at paras. 41-43.

[36] Thus, a contextual, fact-driven assessment is required. A mistrial may constitute an exceptional circumstance where it arises despite reasonable diligence by the Crown: Mallozzi, at para. 41. However, the Crown is unlikely to benefit from this exception if the mistrial was its fault. Likewise, the defence risks deductions for defence delay where its illegitimate conduct solely or directly produced the mistrial: Way, at para. 33, citing R. v. J.T., 2021 ONSC 365, at paras. 29-30.

[49] In this case, the mistrial applications arose during a cross-examination of a witness based upon prior preliminary inquiry testimony of the officer as to the substance. The mistrial application was unsuccessful, detailed reasons were provided and need not be repeated here.

[50] This court finds that from the Crown's perspective the mistrial applications were reasonably unforeseeable or unavoidable. Consequently, the resulting delay could not reasonably have been mitigated. On this basis alone, this establishes a discrete exceptional circumstance.

[51] As to the voir dire, as to the authenticity of the video taken by the officer of the defendant, this likewise was reasonably unforeseeable or unavoidable from the Crown's perspective. This likewise is a discrete exceptional circumstance. None of these features can in any way be construed or fault in any way attributed to the Crown.

[52] In view of these findings, it is unnecessary to address either of these features as defence delay.

[53] In relation to these issues and the rulings in the context of the trial, this court finds that the collective duration of dealing with these issues is substantially equivalent of the actual collective time that it took to complete the trial evidence on the rescheduled dates as noted.

[54] Accordingly, this court finds the trial evidence could and should have been heard within the initially allotted 4 days as had been scheduled. Any extended period is explained and so found as a discrete exceptional circumstance.

[55] In view of these reasons, leave to bring the application is denied and, alternately, the application is denied. As a result of this ruling, there had been a finding of guilt on the charge and a conviction shall be registered and a sentence proceeding shall be set.

M.D. McArthur J.

Released: October 31, 2025