ONTARIO SUPERIOR COURT OF JUSTICE
RULING ON SECTION 11(b) APPLICATION
JUSTICE I. CARTER
OVERVIEW
1Two brothers were gunned down in broad daylight in a public area of Ottawa. A third brother survived. Abdullahi Osman and Ahmed Siyad were each charged with two counts of first degree murder and one count of attempted murder for their alleged involvement in the shooting.
2A jury trial was set to commence on June 2, 2025. At the time, the presumptive ceiling of 30 months had already been exceeded. The case was in potential Jordan trouble, although no defence application had been brought. Shortly before the trial commenced it came to light that data had been extracted from two phones found in the vehicle where the two brothers had been killed. The data had been extracted in 2021 and 2023 but had never been disclosed to the defence.
3Litigation over the data ensued. Disclosure was ordered. The trial dates were lost. New ones for March 2026 were scheduled but the new start date was well past the presumptive ceiling. Not surprisingly, the accused have brought an application alleging that their right to be tried in a reasonable time pursuant to s. 11(b) of the Charter has been breached.
4The Crown argues that certain periods of delay were solely the responsibility of one or both of the accused. However, even if I were to accept the Crown position in its entirety, and I do not, the delay would exceed the presumptive ceiling. The jurisprudence is clear. The onus shifts to the Crown to justify the delay as an exceptional circumstance, either by reason of a discrete event or because of the complexity of the case.
5No attempt was made by the Crown to quantify any exceptional discrete events, despite the fact the law requires it. Nevertheless, I conclude that some periods of delay arose from scheduling difficulties resulting from there being two accused in the case. Even with these deductions, however, the amount of delay still exceeds the presumptive ceiling.
6The failure to disclose the extraction from the cell phones caused the loss of the trial dates. It was not an exceptional discrete event. The evidence suggests that the police made a deliberate decision to withhold fruits of the investigation on the basis that it was irrelevant. This cannot be said to be an inadvertent oversight that was reasonably unforeseeable or unavoidable. Only limited evidence was filed about the complexity of the case. While there was moderate complexity to certain issues and evidence, the case as a whole was not particularly complex. It was, to borrow the language from Jordan, a “typical” murder case.
7When the delay exceeds the presumptive ceiling and the Crown has failed to establish an exceptional circumstance, the Court has no option. As the law stands now, the only available remedy is a stay of proceedings. As a result, that is the order that must be made in this case.
THE JORDAN FRAMEWORK
8The framework to be applied when an accused person alleges that his s. 11(b) Charter right has been breached was concisely and helpfully set out by the Ontario Court of Appeal in R. v. Zahor, 2022 ONCA 449 at paragraphs 61 to 75. I have summarized the steps below:
a. 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
b. Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay. There are two types of defence delay, each of which must be considered and, if present, subtracted.
i. 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.
ii. Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defences’ conduct” must also be subtracted from the total delay.
c. Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 30 months for cases tried in the Superior Court. 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.
d. 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. In general, the Crown may
satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases.
i. Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. 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.
ii. Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered
9I will deal with each of these steps in turn.
THE TOTAL DELAY
10For Mr. Osman, the total time from the swearing of the Information to the anticipated end of the trial is 49 months and 14 days. The delay for Mr. Siyad is 46 months and 14 days. The difference in time periods lies in the fact that Mr. Siyad was arrested after Mr. Osman. In both cases, the delay is well over the presumptive ceiling of 30 months. I would note that the Crown calculated the total delay as one month less for each of the accused. That calculation was based on a misunderstanding of the law. The time runs to the anticipated conclusion of the trial, not the start of the trial.
SUBTRACTING DEFENCE DELAY
11Turning to the issue of whether any time should be deducted from those totals as a result of defence delay, there is no allegation that the defence waived any periods of delay.
12The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises those situations where the accused's acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. As an example, 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. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable: R. v. Jordan, 2016 SCC 27, at paras. 63-64; see also R. v. Hanan, 2023 SCC 12; R. v. Jones, 2025 ONCA 103.
13Defence 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: R. v. Cody, 2017 SCC 31 at para. 32.
14Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay: Jordan, at para. 65. In addition, 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: Zahor, at para. 65
15In cases of jointly charged accused, an individualized approach must generally be taken to the attribution of defence-caused delay. Delay caused by the actions or inactions of a co-accused will usually not be attributed to all: R. v. Oliver, 2025 ONSC 5026, at para. 44.
16Furthermore, while the individualized approach to the attribution of defence-caused delay in cases of jointly charged accused set out above is the general rule, a collective or communal
approach may be applied in certain circumstances. The case law suggests that in order to apply a non-individualized approach to delay and to find that co-accused persons have proceeded as a collective, the co-accused persons must have done something more than simply being co-accused with common court appearances: Oliver, at paras. 45 and 50.
17Nevertheless, delay that arises from scheduling difficulties in a case with co-accused may, in some circumstances, be considered a discrete exceptional circumstance: R. v. Singh, 2025 ONCA 843 at paras. 15 to 26. Although the Crown has not made any submissions on this issue, in my view it has applicability for certain periods of the delay. I will deal with it separately under the heading of Discrete Exceptional Events.
18The Crown points to a number of periods that it says should be characterized as defence delay.
19First, it is submitted that for both accused there were brief time frames following their arrest when they asked to put the matter over to speak to counsel and review disclosure. Mr. Osman was arrested on February 13, 2022. At his first appearance Mr. Osman asked to set his matter over to March 16 (33 days) to speak to his counsel. On March 16th, the matter was put over to April 13th (27 days) at defence request to review disclosure. On April 13th, Mr. Osman’s counsel asked for the matter to be set to May 25th (42 days) to accommodate a serious 28 day trial Mr. Osman was involved in in Toronto. Mr. Osman later fired his counsel and there was a brief delay (9 days) as new counsel came on record. Because of new counsel coming on record on July 19th, a follow up JPT was set on July 21st. The Crown submits that 45 days of this 111 days total time should be considered defence delay. There is no explanation as to how that calculation was reached.
20In my view, most of the delays the Crown seeks to attribute to the defence occurred during the intake period and were simply the time needed to review and process the disclosure. With respect to the 42 day adjournment to accommodate Mr. Osman’s other trial, the record makes clear that it was the defence’s expectation that a judicial pretrial would occur during that time. On May 25, 2022, counsel for Mr. Osman indicated that he had been attempting to schedule a judicial pre- trial without any success. He had specifically indicated that since April 12, 2022, he had sent
several email communications to the Crown assigned and that there had been a failure by the Crown to respond. Counsel made clear that Mr. Osman was anxious to the move the matter along but the Crown had not been co-operating. This is not defence delay.
21However, there is one area where some delay should be counted towards the defence.
22The weight of the authorities supports the view that regardless of why it became necessary for an accused to change counsel, the delay that the change causes is not to be counted toward the presumptive ceiling. It will either be characterized as defence delay or as delay attributable to a discrete exceptional event. The party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time: R. v. Browne, 2020 ONSC 5244 at paras. 60 and 61.
23Here, delay was occasioned by the fact that Mr. Osman discharged counsel and then retained new counsel. Determining how much delay was caused, however, is difficult to determine for a number of reasons.
24New counsel promptly sought disclosure as soon as she came on record. There were delays in obtaining the disclosure from the Crown and the investigators and it did not arrive until the day of the scheduled pretrial. That said, even if it had arrived shortly after it had been requested it is unlikely that it could have been adequately reviewed in time. A second judicial pretrial would have been required in any event.
25In addition, the original judicial pretrial proceeded with the participation of new counsel for Mr. Osman. An estimate of a five-day preliminary inquiry had been discussed together with potential witnesses that the Crown sought to call pursuant to section 540(7). It is impossible to say if any more progress than that would have been accomplished if original counsel had participated. It is possible that a further judicial pretrial would have been required in any event.
26Finally, new counsel for Mr. Osman sought to arrange a follow up judicial pretrial as quickly as possible. Counsel’s office wrote the Crown on August 2nd asking to arrange one. No response was given. Counsel’s office followed up on August 17th stressing the importance of
moving the matter along. The Crown did not respond until September 6th, offering potential JPT dates of September 20, 22, and 29th. Counsel asked to take the earliest available date.
27Given these circumstances, the change of counsel was relatively insignificant. I would categorize 10 days as defence delay. As Mr. Siyad was not responsible for the delay, none will be attributed to him. However, I will return to this issue when I discuss discrete exceptional events.
28The second period of defence delay as alleged by the Crown relates to the conduct of the preliminary hearing. The dates that were agreed on for the preliminary hearing were August 28th for a one-day motion and preliminary inquiry dates of September 1, 5, and 6th. The hearing was not completed in the scheduled time. It was put over to December 12 and 13th at the request of counsel for the accused so that two officers could be made available to be cross-examined. The record is somewhat unclear as to the reason for the defence request. In my opinion, it is better categorized as a discrete event. Despite the parties’ best efforts at estimating the time needed for the preliminary hearing, it went longer than expected. Continuation dates were needed. A period of 3 months and 7 days will be later deducted as a discrete exceptional event.
29At the conclusion of the evidence on December 13th, counsel for Mr. Osman sought time to prepare written submissions on committal. The Crown had already filed their submissions on September 6th. At this point, Mr. Siyad conceded his committal. The matter was put over for counsel for Mr. Osman to prepare written submissions on committal. There was some difficulty in obtaining court time for a decision, but the decision was eventually rendered on February 16, 2024.
30The reasons for the decision on committal have not been included in the record. I am unable to conclude that challenging committal was frivolous. However, seeking additional time to prepare written submissions was unreasonable. The Crown had filed their written submissions in September. The time between then and December could have been used to prepare the submissions, with any last minute revisions being done at the conclusion of the evidence. This period of delay of was solely caused by Mr. Osman and will be deducted from his total delay, although not the period that would be required to write the decision, which I estimate to be 14 days. The total period to be deducted will therefore be 1 month and 19 days. Mr. Siyad was not
responsible for this period of delay so it will not be deducted from his total delay, although I will return to this issue when discussing discrete exceptional events.
31The third period of defence delay is largely uncontested. Counsel for Mr. Siyad was unavailable for pretrial motion dates commencing February 24, 2025, which were the first dates offered by the Court. There is no discussion on the record of when the trial would have commenced after that if counsel for Mr. Siyad had been available. The other parties and the Court were available for that time. The pretrial motions were instead scheduled for May 12, 2025, with trial dates scheduled to commence on June 2, 2025. Mr. Siyad was responsible for the delay between the first offered pretrial motion dates and the commencement of the actual pretrial motion dates – a period of 2 months and 14 days. That period will be deducted from his total delay. Mr. Osman was not responsible but, once again, I will return to this issue under discrete exceptional events.
32The fourth period of delay alleged by the Crown is the most contentious. The delay was a result of disclosure being ordered and the trial dates in June 2025 being lost as a result. The Crown accepts responsibility for the late disclosure but asks that the Court apportion the delay between the Crown and the defence. It is argued that the defence was not sufficiently diligent in pursuing the disclosure. The Crown submits that the period of delay from the first trial date of June 2, 2025, to the first date that the Court and Crown were available for a new trial, September 29, 2025, should be apportioned on a basis of 50%.
33There are two issues that flow from this submission. The first is whether there should be apportionment. The second is determining whether the defence is solely responsible for the delay from the period of the first available dates in September to the actual trial dates in March 2026.
34I will deal with the apportionment argument first.
35Three cell phones had been seized from the vehicle where the shooting occurred. There was some indication in the disclosure that one of the phones had been cracked and data had been extracted but the report was not disclosed. Defence counsel appears not to have noticed these
references as questions were asked about this topic at the preliminary hearing to one of the investigators without any mention of it. The answers of the investigator were somewhat ambiguous, but the tenor of his evidence was that one of the phones might have been cracked but that he did not think anything relevant had been located. The defence did not follow up with a disclosure request. It appears that despite the ambiguity of the investigator’s answers, defence counsel did not believe that any relevant material had been obtained by the police.
36On May 16, 2025, the defence sought disclosure of unredacted GPS data, search warrants, ITOs and production order results. It is important to note that the defence was not seeking data extracted from any of the three phones seized from the vehicle. That same day, the Crown responded and sought clarification as to the production order results and then wrote:
The Ottawa police were able to extract data from 2 of the three phones in the Range Rover. The contents of one of the phones suggest it is Mohamed Abdullah’s. The user of the other phone from which information was extracted is less clear. The Ottawa police found no relevant content in either phone. There are some privacy and safety concerns given the attempt to kill three members of the Abdullah family. The crown is not in actual possession of the extracted data, and no Crown has reviewed it. However, it is in the possession of the investigating police service.
37The defence sought disclosure of the data that had been downloaded. The Crown replied that the police had reviewed whatever data was downloaded and concluded that it was not disclosable as having any bearing on the case. Nevertheless, the Crown stated that they were prepared to make disclosure of cell phone activity for the 24 hours preceding the murders, subject to any privacy or safety concerns.
38The defence maintained their position and litigation ensued. Eventually, the Court ordered disclosure of a considerable amount of the data. Unfortunately, by that time, the trial dates had been lost.
39The jurisprudence suggests that in some cases, it will be “fair and reasonable” to approach a given period of delay by apportioning responsibility between the Crown and the defence. In all cases, a contextual approach is needed to determine the extent to which the defence conduct is the “sole or direct” cause of delay: Zahor at para. 102.
40In my view, although it was ultimately the Crown’s responsibility to provide disclosure, the defence should have followed up with a disclosure request after the preliminary hearing. To be clear, this is not a case where the evidence suggests that the defence was simply waiting in the weeds. The record suggests that they did not realize the potential import of the evidence at the preliminary hearing. Their responsibility for the delay is not as significant as it is for the Crown. Taking a contextual approach, I conclude that it would be fair and reasonable to apportion to the defence one month of the period of delay from the June trial dates to next trial dates available to the Crown and Court at the end of September.
41In addition, the issue of the data extraction and late disclosure is also potentially relevant in considering whether the delay was a result of a discrete event and whether the case was particularly complex. I will return to the issue under each of those headings.
42On the issue of the scheduling of the new dates, the Crown submits that the entire period of the delay from September 29, 2025 (dates available for the Court and Crown) to March 2, 2026 (start of the new trial date) is defence delay. I disagree, although I find that Mr. Siyad is responsible for some of that period of delay.
43I will begin with Mr. Osman. On June 27, 2025, there was an extensive discussion in Court about scheduling the new trial. The matter was stood down for Mr. Osman to speak to his counsel about the possibility of another counsel doing the trial given some availability problems with current counsel. After that meeting occurred and court reconvened, counsel for Mr. Osman put the following on the record:
Mr. Osman is prepared to forego his counsel of choice in order to make sure he gets his trial, the earliest available trial date, Your Honour, so he'll take the earliest available trial date that the Court has to offer.
44Later, it was clarified that the new counsel would be from his previous counsel’s office.
45Counsel for Mr. Siyad was not available until March 2, 2026. The Crown was not prepared to sever the two accused despite a request from counsel for Mr. Osman. As a result, the trial was scheduled for March 2026.
46In these circumstances, it cannot be said that Mr. Osman was responsible for the delay: R.
v. Tran, 2023 ONCA 532 at para. 39. Nevertheless, as previously noted, delay that arises from scheduling difficulties in a case with co-accused may, in some circumstances, be considered a discrete exceptional circumstance. As a result, I will return to this issue under that heading.
47With respect to Mr. Siyad, counsel was not available for the dates offered in September as well as additional dates offered in January 2026. The stated reason was that she had two other homicide trials booked during that period.
48In R. v. Godin, 2009 SCC 26 at para. 2, the Supreme Court stated: “[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for a. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” A number of decisions have recognized that this principle still has application in the post Jordan landscape: R. v. Aden, 2023 ONSC 766 at para. 99; R. v. Joseph, 2023 ONSC 2833 at para. 33.
49In R. v. Safdar, 2021 ONCA 207, the Crown argued that Godin did not apply under Jordan. The Court disagreed and wrote as follows at para. 50:
In my view, based on the trial judge’s factual findings, he was entitled to conclude that this period of delay was not solely or directly caused by the defence. First, and importantly, the April dates were offered as continuation dates in the midst of the ongoing trial. The inadequacy of the trial estimate was therefore part of the cause of the delay. Second, these dates were offered on relatively short notice. Third, as the trial judge found, defence counsel had agreed to all other dates that were offered, including other dates offered with little notice. The April dates were the only exception. Finally, defence counsel had legitimate reason to decline these continuation dates. One counsel was booked on a serious Superior Court matter for a client who was in custody, while another was scheduled for medical treatment. The trial judge appropriately recognized that counsel could not, in good faith, “compromise one client’s interests for another.”
50As in Safdar, there are many factors here that militate against a finding that all of the delay after the offered September dates was the sole cause of Mr. Siyad. The trial had to be rescheduled at the last minute because of the Crown’s failure to fulfill its disclosure obligations. The September start date was only three months away. Counsel could not very well forego commitments on other murder cases that had presumably been scheduled some time ago. In these circumstances, turning
down the first offered date in September was entirely reasonable. The entire period of delay will not be attributed to Mr. Siyad. The dates offered in January, however, are another matter. While defence counsel need not hold themselves in a state of perpetual availability, reasonable availability is required. The period from January 5, 2026, to March 2, 2026, two months, will be deducted from the total delay with respect to Mr. Siyad.
NET DELAY COMPARED TO THE PRESUMPTIVE CEILING
51The total delay for Mr. Osman is 49 months and 14 days. A period of 2 months and 29 days will be deducted for defence delay. The net delay is 46 months and 15 days. That is just over 17 months above the presumptive ceiling.
52The total delay for Mr. Siyad is 46 months and 14 days. A period of 5 months and 14 days will be deducted for defence delay. The net delay is 41 months. That is 11 months above the presumptive ceiling.
DISCRETE EXCEPTIONAL EVENTS
53Like defence delay, discrete events result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system: Cody at para. 48.
54Examples of discrete events include medical emergencies or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Zahor at para. 71. I have previously concluded that delay occurred as a result of the elongated preliminary hearing. A period of delay of 3 months and 7 days will be deducted for both accused.
55The Crown submits that the Court should find two exceptional events in this case. The first is that the beginning of proceedings in this matter took place during a period when the Courts were still experiencing the back-log effects of the Covid pandemic. The second is the complexity of the litigation that arose over the data extracted from the cellphones.
56Turning to the first point, the Crown relies on the decision of R. v. Simmons, 2020 ONSC 7209 for the proposition that I can take judicial notice of the backlog occurring post-pandemic. I am unable to do so here. Simmons was decided in 2020, while the pandemic was still going despite court operations resuming. Mr. Osman entered the system in February 2022, long after the courts had resumed operations. In addition, there was a period of approximately one year from the date that the preliminary inquiry was set to the date it commenced. In my experience, that is line with the type of delay that was typical prior to the pandemic. Given these circumstances, I would require some evidence that the courts in Ottawa were still backlogged at the time as a result of the pandemic. There is none. No evidence was led, and there are no references to it in any of the transcripts of the numerous court appearances in this matter.
57On the second point, the Crown argues that the the fact that neither the Crown nor defence acted upon the information in the disclosure or on the evidence from the preliminary hearing that suggested that some data had been extracted from at least one of the phones could be considered an exceptional circumstance. The Crown goes on to submit that the time consumed in working through the categorization and litigation from May 16, 2025, through to the Courts decision on July 29, 2025, can also be considered an exceptional circumstance.
58The difficulty with the Crown’s submission on this second point is that it does not address whether these were reasonably unforeseeable or unavoidable. The entire submission is premised on a failure of the Crown, and the defence, to inquire further about the existence of the data extraction after the preliminary inquiry. If those inquires had been made, the time spent reviewing the data and then litigating the disclosure of it, would not have been an issue. The two and a half months it took could have been accomplished while waiting for the trial dates.
59In my view, what occurred, if it is to be considered a discrete event, would best be considered as potentially an inadvertent oversight. The Supreme Court in Cody noted that, in principle, an inadvertent oversight may qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or
reasonably unavoidable. It does not impose a standard of perfection upon the Crown. Mistakes happen and are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b): Cody, at para. 57.
60At first blush, it might appear that the failure to provide the material to the Crown may have simply been inadvertent oversight on the part of the police. However, on the record before me, that conclusion is not borne out. Indeed, as pointed out by counsel for Mr. Osman, no explanation for what actually occurred has been offered.
61Based on the limited responding record filed on this application I am able to glean the following information:
a. On June 1, 2021, investigators submitted three cellphones to the Digital Forensic Section of the Ottawa Police Service. There were two Samsung phones and one iPhone. Data was extracted from one of the Samsung phones but not the other two phones. On June 7, 2021, a report on the extracted data was submitted. The data was not analyzed at that time.
b. Later that month, the data from the Samsung phone was analyzed by Diane Topshee, a Crime Intelligence Analyst with the Ottawa Police Service. The analysis was conducted at the request of Sgt. O’Brien. The request was to review only data for the week leading up to the murder. In addition, Sgt. O’Brien confirmed that the videos on the phone were not to be reviewed. A report was completed on June 16, 2021, and was submitted to Sgt. O’Brien.
c. In an occurrence report prepared on May 22, 2025, Ms. Topshee states, after noting the report being completed on June 16, 2021, that “[t]here was no information found within the Samsung phone data that was believed to be relevant to the homicides.” There is no evidence as to who made that determination.
d. In the same occurrence report, Ms. Topshee states that she was contacted by Sgt. O’Brien on May 21, 2025, requesting assistance with the phone data for the iPhone. Upon opening the UFED data for the iPhone, it showed the phone data extraction for the iPhone was completed on July 24, 2023. She had not been involved in the investigation at that time.
e. The data extracted from the iPhone was provided to the homicide unit on July 31, 2023.
f. In an email dated May 18, 2025, the Crown wrote to the defence that the data had not been provided to the Crown because “the police deemed the content to be irrelevant.”
62No affidavit or viva voce evidence was led from Sgt. O’Brien, or any of the other investigators, as to when and why decisions were made to not disclose the extracted data and associated report. No evidence was led as to whether Crown counsel played any role in those decisions. No evidence was led as to how or when the Crown came to learn about the extracted data.
63The bulk of the evidence that has been filed on the application supports a finding that the police made a deliberate decision to not disclose the extracted data and report on the basis that the material was irrelevant. That was not their decision to make. It is the Crown who determines relevance. In R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, it was held that the Crown has an obligation to disclose all relevant material in its possession, so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. The threshold requirement for disclosure is set quite low. The Crown must demonstrate that it is clearly irrelevant.
64A deliberate decision on the part of the police to not disclose the fruits of the investigation is not an inadvertent oversight. It is not a reasonably unforeseeable or unavoidable discrete event. The delay that resulted from that deliberate decision cannot be deducted from the total period of
delay. Given that I have found that the decision to withhold the fruits of the investigation was neither reasonably unforeseeable nor reasonably unavoidable, I need not go on to consider whether the Crown could not reasonably have remedied the delays emanating from those circumstances once they arrived.
65There is one final issue with respect to exceptional discrete events. Although the Crown did not raise it, I will address it. As previously noted, delays resulting from scheduling issues because of co-accused may amount to a discrete exceptional event.
66To rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay: Tran at para. 40.
67With respect to the first point, the Ontario Court of Appeal in the recent decision of Singh
stated the following at paras. 15, 17 and 18:
Courts have consistently emphasized that joint trials are strongly preferred over separate trials because they promote the proper administration of justice. Trying co-accused together - particularly in conspiracy cases or where the charges arise from a common series of events - advances the truth-seeking function in a way that separate trials may undermine. Joint trials also safeguard public confidence by reducing the burdens multiple proceedings impose on witnesses, jurors, and the community, and by avoiding the risk of inconsistent verdicts that may erode trust in the justice system. In addition, they achieve significant systemic efficiencies by preventing duplicative proceedings that would increase costs, strain judicial resources, and exacerbate delay. Accordingly, joint trials are the presumptive rule and severance the exception.
At the same time, Jordan reconciles this strong policy preference with an accused’s right to be tried within a reasonable time. The “interests of justice” analysis accommodates both considerations, and the Crown remains obliged to take reasonable steps to move the case forward and to mitigate joint-trial delay. In some circumstances, this may require severance
- particularly where a joint trial unduly complicates the proceeding, causes substantial delay, or effectively holds an accused who wishes to proceed promptly hostage to the
delays of co-accused.
However, the Crown is not required to forgo the systemic benefits of joint trials by severing proceedings as a matter of routine whenever a case approaches the ceiling. Severance is not invariably a solution, particularly where its benefit to the accused’s interest in a timely trial is marginal. Overuse of severance risks fragmenting complex project cases and other multi-accused proceedings into numerous separate trials, thereby compounding demands on already strained courts. This would undermine the truth-seeking function, erode public confidence, frustrate Jordan’s objective of systemic reform, and perpetuate the very systemic delay that Jordan sought to address.
68I conclude that up to the point that the first trial dates were lost it was in the interests of justice to proceed jointly with both accused. During that period certain periods of delay resulted from the actions of one or the other accused. The delay was unavoidable and could not have been ameliorated by the Crown. As a result, the following periods should be deducted as discrete exceptional events:
a. 3 months and 7 days for both accused as a result of the elongation of the preliminary inquiry despite good faith estimates.
b. 10 days for Mr. Siyad for the delay resulting from Mr. Osman’s change of counsel. This will not be deducted for Mr. Osman as that would amount to double counting.
c. 1 month and 19 days for Mr. Siyad for the delay resulting from Mr. Osman requiring further time to make written submissions on committal. This will not be deducted for Mr. Osman as that would amount to double counting.
d. 2 months and 14 days for Mr. Osman for the delay resulting from Mr. Siyad not being available for the first available dates offered for the first trial. This will not be deducted for Mr. Siyad as that would amount to double counting.
69The total delay for Mr. Osman, considering deductions for discrete exceptional events, is 40 months and 6 days. The total delay for Mr. Siyad is 35 months and 24 days.
70I turn now to the issue of whether similar deductions should be made for scheduling issues arising from the fact of co-accused during the period after the trial dates were lost. In my view,
this is one of the rare circumstances in which severance was required in order to attempt to preserve Mr. Osman’s right to be tried in a reasonable time. The delay was caused by the deliberate police decision to withhold fruits of the investigation. The case was already past the presumptive ceiling at the time that the adjournment was required. Mr. Osman had indicated he was prepared to forego counsel of choice to obtain earlier dates, and new counsel who was available on the earlier dates was found. While conducting two separate trials will always put some additional strain on the system, the Court was in a position to offer both trial dates in September 2025 for Mr. Osman and trial dates in March 2026 for Mr. Siyad. The Crown could have reasonably ameliorated approximately five months of delay for Mr. Osman if it had chosen to sever him.
71Even if I am wrong in this regard, and the entire period from September 29, 2025, to March 2, 2026, is considered a discrete exceptional event, both accused would still be above the presumptive ceiling.
COMPLEXITY
72As previously noted, 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: Zahor at para. 72
73The presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. In order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: Cody at para. 63.
74A case may be particularly complex where it requires a great deal of trial time or preparation time because of the nature of the evidence or the nature of the issues. Examples of complexity include: voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension: Zahor at para. 105.
75As was noted in Jordan, a typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance: Jordan at para. 78.
76The Crown argues that this prosecution was complex for three reasons:
a. Proceeding against multiple accused, and accommodating the schedules of two defence counsel;
b. Somewhat voluminous disclosure provided in a series of waves; and
c. The complex and novel legal issue with regard to the cellphone UFED disclosure arising on May 16, 2025.
77I will deal with these three arguments in turn.
78First, I have already considered the issue of scheduling trial dates for two accused under both the headings of defence delay and discrete events. With respect to the preliminary hearing, there is nothing contained in the record that suggests there was any difficulty setting it as a result of the fact that there were two accused. In any event, this is not a drug or organized crime project case with many accused, which typically creates significant scheduling difficulties. There were only two accused here. Any resulting complexity was minor at best.
79Second, there is little in the way of evidence of “voluminous disclosure.” There is an indication at one of the earlier court appearances that the initial disclosure package was about 1,000 pages. The Crown has not filed any evidence outlining the volume of any subsequent disclosure. The use of the qualifier “somewhat” before the word voluminous in the Crown’s submissions seems telling. I would further note that the preliminary hearing was only five days. The pretrial motions, with the exception of the disclosure issue to which I will return, were not complex and were completed in a matter of days. The trial is scheduled for five weeks. In my experience, not many murder trials are scheduled for less than that. In other words, this case has all the hallmarks of being, to use the language from Jordan, a “typical” murder trial.
80Third, there is the issue of the disclosure of the extracted data from the phones linked to the victims. I accept that the issue of disclosing data from a murder victim’s phone was somewhat novel. In addition, considerable resources were required to categorize the data on the phone so that determinations could be made about relevancy. That said, the basic test for disclosure was neither novel nor in dispute. The Crown must demonstrate that it is “clearly” irrelevant. It should have been obvious to the Crown that there would be some requirement to review and assess the contents of the phones. Instead, the Crown:
a. initially took the position that the content of the phones was irrelevant, despite not having reviewed any of it;
b. then took the position that it would disclose only content from the 48 hours preceding the murders. There was no principled basis to make this distinction;
c. attempted to demonstrate the material was clearly irrelevant by providing a bare bones index; and
d. after questioning by the Court, suggested that the data be provided to the Court to make a determination of relevance. This suggestion was rejected: R. v. Osman, 2025 ONSC 3333 at para. 12.
81In other words, the Crown added complexity and delay through the evolving positions that were taken.
82In any event, the whole issue arose because the police decided to withhold fruits of the investigation. If the material had been provided to the Crown in a timely manner, the issue could have been dealt with easily in the period awaiting trial. Any moderate complexity arising from this issue could have been attenuated: see R. v. Picard, 2017 ONCA 692 at paras. 64 to 67.
83I conclude that the case as a whole is not particularly complex.
CONCLUSION
84As Jordan makes clear, 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. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered.
85Even subtracting periods of delay attributable to the defence and those related to discrete exceptional events, the net delay is well above the presumptive ceiling for both accused. The evidence falls far short of establishing that the delay above the ceiling is justified because the case is particularly complex. It is not.
86It is most unfortunate that this double homicide and attempt murder case will not be tried on its merits. The law is clear, however. The Court has no choice. A stay of proceedings is the only remedy that can be granted.
Released: January 9, 2026
CITATION: R. v. Osman, 2026 ONSC 124
COURT FILE NO.: 21-15576
DATE: 2026/01/09
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Abdullahi Osman
Crown
Accused
Ahmed Siyad
– and –
Accused
RULING ON SECTION 11(b) APPLICATION
Justice I. Carter
Released: January 9, 2026