R. v. Hasan, 2026 ONSC 1250

CITATION: R. v. Hasan, 2026 ONSC 1250

COURT FILE NO.: CR-25-10000067-00AP

DATE: 20260302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Appellant

• and -

MOHAMMAD NADER HASAN

Respondent

Andres Hannah-Suarez, for the Appellant Crown

Riaz Timol, for the Respondent Mr. Hasan

HEARD: February 19, 2026

S. VELLA, J.

REASONS FOR DECISION – SUMMARY CONVICTION APPEAL

1The Crown appeals from the verdict of acquittal of the Respondent rendered by L. Chapin, J., of the Ontario Court of Justice, on September 5, 2025.

2The Respondent was acquitted after the Crown announced it was not in a position to call evidence as a result of the sudden illness of the assigned trial Crown and the unavailability of Crown counsel to take over the trial on short notice.

Overview and Background

3By way of background, on February 11, 2024, the Respondent was charged with impaired driving contrary to s. 320.14(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, and, within two hours after ceasing to operate a conveyance, having a blood alcohol concentration exceeding 80 mg of alcohol per 100 ml of blood (registering readings of 158 and 138 mg of alcohol per 100 ml of blood).

4The matter was set down for a two-day trial to take place on September 4 and 5, 2025.

5The Assistant Crown Attorney assigned to the case (the “trial Crown”) suddenly fell ill on September 4, 2025, and the Crown sought an adjournment of the trial in its entirety on the first day of trial to new dates to be scheduled.

6The trial judge partially granted the adjournment request by adjourning the trial for one day, to commence on September 5, 2025.

7On September 5, 2025, the Crown renewed its request for an adjournment of the trial in its entirety.

8The trial judge dismissed the adjournment request and ordered that the trial proceed, resulting in an acquittal after the Crown called no evidence.

The Parties’ Positions

9The Crown raised five grounds of appeal. The trial judge:

(a) erred in law by refusing the Crown’s trial day adjournment application which was due to illness of the trial Crown;

(b) wrongfully exercised Her Honour’s discretion in denying the Appellant’s adjournment request and in ordering the trial to continue on the second day scheduled for the trial;

(c) failed to give weight or gave insufficient weight to relevant considerations when Her Honour decided on the Crown’s adjournment request;

(d) erroneously considered factors in denying the Crown’s adjournment request that are not well founded in law; and

(e) erred in wrongfully continuing with the trial in the absence of Crown counsel who was able to properly conduct the trial pursuant to the Crown’s competency and preparedness obligations under the Rules of Professional Conduct.

10The Defence’s position is that:

(a) the trial judge heard the respective positions, considered them, exercised her broad discretion accordingly, and committed no error in so doing;

(b) the trial judge’s exercise of discretion was reasonable given the delay that would have been caused by an adjournment resulting in prejudice to the accused, and the trial judge’s rejection of the Crown’s claim that no other Crown could be located and reassigned in time to take on the prosecution with one day’s notice, and

(c) the Crown chose to prioritize another case over prosecuting the subject case and therefore invited this outcome.

11The Crown seeks an order setting aside the acquittal and remitting the matter for a new trial to the Ontario Court of Justice.

Analysis

12This appeal is brought pursuant to s. 830 of the Criminal Code:

830(1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment, verdict of acquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court on the ground that

(a) it is erroneous in point of law;

(b) it is in excess of jurisdiction; or

(c) it constitutes a refusal or failure to exercise jurisdiction.

(2) An appeal under this section shall be based on a transcript of the proceedings appealed from unless the appellant files with the appeal court, within fifteen days of the filing of the notice of appeal, a statement of facts agreed to in writing by the respondent.

13No agreed statement of facts was filed, so the appeal proceeded based on the transcripts of the underlying proceeding appealed from.

14The powers of the appeal court under s. 830 appeals are found in s. 834(1) of the Criminal Code:

834(1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may

(a) affirm, reverse or modify the conviction, judgment, verdict or other final order or determination, or

(b) remit the matter to the summary conviction court with the opinion of the appeal court,

and may make any other order in relation to the matter or with respect to costs that it considers proper.

Standard of Review

15The trial judge has a wide discretion to grant and refuse adjournment requests. An appellate court should only intervene in situations where the trial judge has misapplied their judicial discretion: R. v. Hazout 2005 30050 (ON CA), [2005], 201 O.A.C. 235 (C.A.), at para. 31.

16The appellate court’s role is not to reverse an order because it would have exercised the discretion in a different manner. Rather, the appellate court should only intervene where “the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice”, and reaches the clear conclusion that no weight or insufficient weight has been given to the considerations relevant to the exercise of that discretion: R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, at paras. 48-50, citing Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375.

Test Governing Requests for Adjournments

17Pursuant to s. 803(1) of the Criminal Code, the trial judge has broad discretion in determining requests for adjournment:

803(1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

18The jurisprudence has established factors that may inform the exercise of this discretion, depending on the context of the case, though the Crown counsel advised that he could find no case, other than R. v. Rumleski, [1986] O.J. No. 2099 (Ont. Dist. Ct.), in which an adjournment had been denied (or granted) as a result of the unavailability of the assigned Crown to prosecute the case, much less where the unavailability was due to medical or personal emergency circumstances. Accordingly, this case was argued from the standpoint of first principles.

19In R. v. J.M., (2025) File 21-101421 (Ontario S.C.J.) (unreported), Valente, J. set out the following, non-exhaustive, general considerations relevant to the exercise of discretion in determining adjournment requests for a mid trial adjournment, and citing R. v. R.S., 2024 ONSC 1806, at para. 2:

(a) the right to make full answer and defence of course and any prejudice to that right if the adjournment were not granted;

(b) the stated reason for the adjournment and the likelihood of that purpose being served by the adjournment requested;

(c) the impact on the proceedings in the public interest in a trial on its merits;

(d) the interest of the public and of the accused in the completion of this trial and other trials within a reasonable time; and

(e) The likely duration of the delay.

20In J.M., the accused sought a mid trial adjournment so that he could bring a mid-trial private records application. In that context, Valente, J. observed that the right to make full answer and defence is of “paramount importance”.

21In addition, Valente, J. considered the issue of trial fairness from the perspective of the complainant (in this sexual assault trial) who had already testified, and found that recalling the complainant would prejudice the proper administration of justice. Having assessed each of the above five factors and the impact on trial fairness, the adjournment request was denied.

22In R. v. Wood, 2005 13779 (ON CA), [2005] 197 O.A.C. 43 (C.A.) at para. 7, the Court of Appeal emphasized that a “trial judge’s right to control the trial process includes a wide discretion to grant or refuse adjournments. The exercise of that discretion is entitled to deference on appeal unless the appellant demonstrates an error in principle or that the trial judge did not exercise his discretion judicially.” In that case, the Court of Appeal upheld the trial judge’s refusal to grant an adjournment to the accused because the accused was found to be manipulating the system in an attempt to avoid the trial.

23In Rumleskie, the Crown requested an adjournment to make submissions at the conclusion of trial. The trial Crown was not available that day, due in part, to not having been consulted on the date for closing submissions. The trial judge denied the adjournment and ultimately acquitted the accused. The court granted the Crown’s appeal, and found that the trial judge had failed to exercise his judicial discretion in a fair manner stating at para. 11:

In exercising his judicial discretion the Learned Trial Judge should have directed his mind to the matter of the consequences of the adjournment, namely, would it cause prejudice to the accused or to the defence; would it prevent the defence from putting forth a proper defence or prevent the defence from properly arguing the issues and making proper submissions; and, of course, would justice, as well as the appearance of justice, be better served by the granting of the adjournment or not. Indeed, the Learned Provincial Court Judge did not direct himself to those issues at all.

24The court further cited with approval the proposition from Procedure, 4th ed, by Salhany, that, “In exercising that discretion the trial judge should be guided by the principle of fairness”: at para. 14. The failure to take into account these factors in denying the adjournment request reflected “an arbitrary and capricious attitude” toward the Crown’s request for an adjournment: at para. 9.

25In R. v. Ke, 2021 ONCA 179, the Court considered an appeal from the trial judge’s decision to grant a stay of proceedings, arising from the failure of a Crown witness to attend for cross examination. The Crown requested an adjournment, but the trial judge granted a stay instead. One of the grounds of appeal was that the trial judge erred by failing to exercise her discretion judicially in denying the Crown’s request for a brief adjournment of the trial proceedings. This was a mid trial request.

26Of note, the trial had previously been adjourned for four and a half months after the complainant testified in chief. The complainant did not appear for cross examination on resumption of the trial. However, she had advised the Victim Witness Assistance Program two and one-half months earlier of her scheduling conflict but her email was diverted to a junk mail folder and only located the morning the trial was scheduled to resume. There was nothing to suggest that the complainant did not intend to appear to be cross examined or was otherwise abandoning the proceedings.

27The court cited Darville v. the Queen, [1956] 116 C.C.C. 133 (S.C.C.), at p. 117, wherein the Supreme Court of Canada identified three factors for a court to consider in determining whether to grant an adjournment required to procure the attendance of material witness:

(a) That the absent witness is a material witness in the case;

(b) That the party requesting the adjournment has not been guilty of laches or neglect in failing to endeavour to procure the witness’ attendance; and

(c) There is a reasonable expectation that the witness’ attendance can be procured at the future time to which the party proposes the trial be adjourned.

28The court observed, at para. 57:

Decisions on applications for an adjournment involve the exercise of judicial discretion. They require consideration of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other.

29The court found that the trial judge erred in law in not giving the Crown an opportunity to address the Darville factors or consider those factors in denying the adjournment. The court was also satisfied, however, that the trial judge’s decision to refuse the Crown’s adjournment request was unreasonable. The decision was unreasonable because the trial judge’s findings underpinning the denial were not supported by the record.

30While the case at bar did not relate to the inability or failure of a material witness to appear, the general comments of the court are instructive. In this case, it was the undisputed inability of the assigned trial Crown to appear and prosecute the case on the scheduled date and the last minute nature of the illness.

31In R. v Dunnett, 2025 ONCA 392, 448 C.C.C. (3d) 122, the court examined delay under s. 11(b) that commenced with the delayed Garofoli hearing. Fairburn A.C.J.O. noted that the assigned Crown had a sudden family crisis which kept him from attending court all week. New dates therefore had to be chosen for one month later. That new date then had to be further adjourned as the Crown’s affiant had a “serious family crisis” that was ”severe” and “grave” resulting in a further delay. Accordingly, the net delay that was over the 18 month presumptive ceiling. At the s. 11(b) #2 hearing, the issue turned on whether the assigned Crown’s family emergency, combined with the Crown affiant’s family emergency qualified as exceptional circumstances.

32In the Crown’s affidavit explaining the Garofoli hearing delay, the Crown deposed that it would have been “unprofessional and impossible for a new Crown to step into that application at the very last moment”. Fairburn A.C.J.O. observed “In the Deputy Crown Attorney’s sensible view, it was simply impossible for a new Crown to step in, properly prepare and litigate this matter with less than 24 hours’ notice”: at para. 27.

33Of import to the case at bar, Fairburn A.C.J.O. observed that “professionalism and civility must be maintained both outside and inside of the courtroom. This includes being respectful of opposing counsel’s need to respond to a personal emergency and respectful of their privacy relating to personal matters”: at para. 34. Accordingly, the Court of Appeal rejected the appellant accused’s submission that the initial assigned Crown should have been required by the judge to prove their personal emergency.

34In R. v. Kulasingam, 2025 ONSC 3619, the court considered an appeal by the Crown from a decision staying the assault causing bodily harm charge pursuant to s. 11(b) and s. 24(2) of the Charter of Rights and Freedoms. In allowing the appeal, and vacating the stay of proceedings, Dunphy, J. found that the O.C.J. judge erred in law by focusing on the “inexplicable delay by the police to provide the video statement of the complainant”, based on judicial notice of the “exponential increase in video disclosure and the failure of police procedures to cope with this development”: at para 34. Dunphy J., relying on R. v. S.A., 2024 ONCA 737 noted at para. 37 that s. 11(b) applications:

…are not the forum to prod, poke or compel a particular allocation of resources from public officials or judicial system participants. Judges are woefully ill-equipped to make judgments about the public policy trade-offs needed to remedy perceived systemic problems. In the world of public administration, limited resources is a way of life and ill-informed attempts to plug the dike in one place risks opening bigger holes in another.

35In R. v. Hanlon & McKeil 1987 3975 (NL CA), [1987], 64 Nfld. & P.E.I. R. 245 (C.A.), the trial court refused to grant an adjournment though both the Crown and defence had consented to an adjournment, the Court of Appeal held at paras. 12-13:

12. The record does not disclose that there was any attempt to obstruct the course of justice or to frustrate the judicial process by delay; nor is there any indication that there was any improper or questionable motivation behind the request, nor the possibility of prejudice to the innocent or benefit to the guilty.

13. The trial judge failed to take into consideration the positions advanced by counsel in this matter. In that respect he failed to act judicially. Further, in the exercise of his discretion he limited his consideration to one factor only, the business of the court. He ignored the other principles that are appropriate for consideration in such circumstances…

36Guided by these general principles, and particularly the factors to be considered on requests for adjournment, I will now proceed to review the Trial Judge’s reasons for granting a partial adjournment on the scheduled day 1 of the trial, and then, on the scheduled second day of the trial, declining to grant the renewed request for an adjournment of the entire trial.

The Trial Judge’s Rulings

Day One of the Trial – September 4, 2025

37On day one of what was to have been a two-day trial, the Crown requested an adjournment of the trial. It was a last-minute adjournment application due to the fact that the assigned trial Crown had found out, as of the day prior, that she had a serious medical issue and could not attend to conduct the trial on either of the two days assigned.

38The defence opposed the adjournment request stating that this was a “simple impaired matter”. The defence did not question the assigned trial Crown’s sudden illness or inability to attend to conduct the trial. However, the defence submitted that another Crown should be appointed, and the trial adjourned to 2:15 p.m. that same day. The defence offered to “sit with any Crown attorney and show them all the legal issues and what is intended to be argued, and I’m happy to show all, like, the videos and everything and explain the law on the issues”. He also expressed confidence in being able to complete the trial in one day, rather than the two days set aside. Alternatively, he was prepared to consent to a one-day adjournment, with a view to commencing and completing the trial on day two.

39The Crown disagreed with the feasibility of what was proposed by the defence. The Crown submitted that the court could take the word of the trial Crown that she found out she has a serious medical issue. Second, the Crown did not have another Crown to assign last minute on this two-day trial either that day or the next day. The Crown pointed out that the defence had filed a Charter application though she had not yet seen it, and she reiterated that the Crown’s application was to adjourn the trial in its entirety to dates to be scheduled. In answer to the trial judge’s question, the Crown indicated that she did not know whether the trial would be re-assigned to a new Crown, or whether the assigned trial Crown would be able to resume it on the adjourned date.

40The defence informed the trial judge that this was a two issue trial – a delay of 15 minutes in the reading of rights to counsel, and the fact that the accused does not speak English and he was therefore challenging the validity of the arrest. He agreed there were two videotaped recordings that would need to be reviewed, and police witnesses would be called. He advised that the defence took no issue with the Crown relying on the Certificate of the Qualified Breath Technologist.

41The defence reiterated his view that this was not a complex trial, could likely be done in one day, and that “this building is full of Crown attorneys”, meaning there should be no problem assigning another Crown immediately to prosecute the trial, to which the trial judge responded, at p. 9, line 30:

Yes. But it’s not as simple as that with impaireds. I’ve been sitting here now for two years and impaired trials usually take at least two days. When they’re booked for two days generally they take three days. And plus that means somebody has to sit and watch all these videos to prepare for it. So it’s not something that another Crown can just pick up.

42In answer to the trial judge’s question, the Crown advised that she was not available that day to prosecute this case. She was supposed to be in another court on another matter but was appearing last minute due to the emergency situation. She reiterated that as far as she was aware, there was no other Crown available to “just simply pick up, learn the file, and be ready to run it tomorrow”: p. 12, lines 12-18.

43The trial judge then responded, at p. 13, line 3-8, that “it’s unreasonable to expect a Crown to pick this up today. But I would grant an adjournment till tomorrow.” Then at pp. 13, 24-32, and p. 14, lines 1-4, the trial judge ruled:

All right. So in the circumstances, certainly I have to be aware of delay and I hear the Crown’s application. I think it is not appropriate to force the Crown on today, but I will grant an adjournment of one day in the circumstances. Impaired trials are not what they used to be. They’re much more complicated in a sense and they take more time because of the videos that are played often. So again, I will adjourn this…this matter until tomorrow.

Second Adjournment Request – September 5, 2024

44On the next day, September 5, 2024, a different Crown Attorney brought a further application for an adjournment of the entire trial to another date to be scheduled. She was not assigned as the new trial Crown.

45The Crown again emphasized that on the day prior the assigned trial Crown had a “sudden emergency medical leave”. The Crown’s office had not been in a position to seek a new trial Crown until the morning of September 4, 2025 when it was advised of this emergency situation. The trial Crown would be off until at least the following week. The Crown advised that it was “doctor’s orders at this point, she [trial Crown] cannot attend work and she certainly cannot conduct a trial”.

46The Crown, who was Deputy for the South office, submitted several points in support of the adjournment request:

(a) This was not a simple trial that could just be picked up. It involved a section 10(b) Charter application that focused on both the timing of the caution and language rights involving the accused’s apparent inability to comprehend English and therefore whether he understood his rights;

(b) An impaired driving trial is detail specific;

(c) The trial is scheduled for two days which means even if the trial were to start that day, it would still require a further day to be scheduled in any event;

(d) The Crown’s office had tried to find a new trial Crown to take over to no avail;

(e) The Crown was able to find a short matter that can fit into this Court on this day to replace the current trial so there would be no wastage of judicial resources;

(f) The adjournment is for a discrete exceptional circumstance, namely the sudden illness of the trial Crown;

(g) Even if a new trial Crown could have been found, and one could not, “counsel has an obligation, whether it’s Crown or defence, to conduct an effective prosecution and represent their clients who, in this case, is the public for the Crown, fairly, efficiently and properly”. On this point, “asking a Crown at the last minute to step into a case like this where there is a Charter application, there is a language issue, there is statement[s] and video to review, even if they had started yesterday at 11:30, I’m not sure that that person would have been able to be up to speed today”;

(h) On the issue of potential delay to the accused, the Crown submitted that issue can be “raised at an 11(b) application later down the line”;

(i) The Crown offered to immediately go and reschedule the trial date on an expedited basis and that the Crown would seek the earliest available dates;

(j) Furthermore, if defence counsel had been the one seeking an adjournment on the basis of sudden illness, there would be no suggestion that another member of the defence law firm “should pick up and complete the trial the next day”;

(k) If the adjournment were to be granted, then the Crown would be more efficient having had time to properly prepare rather than requiring an unprepared Crown to fill in court time;

(l) The Crown summarized that her proposal made the most logistical sense and is entirely reasonable given that the Crown has the onus.

47The Crown advised that the Crown witnesses were present and available in court, however. Furthermore, in answer to a question from the trial judge, the defence lawyer advised that the offence was from February 2024, and that this was the first trial date.

48The Crown added, in response to the defence submission that he had attempted resolution discussions, that there had been ongoing resolution discussions but to no avail.

49The main thrust of the defence argument was “there is [sic] 150 Crown attorneys in this building. There’s [sic] multiple courts running today” and surely the Crown’s office could have assigned a trial Crown the day before who could have become trial ready, and that the accused would like to have his trial “today”.

50After hearing theses submissions, the trial judge did not recess but rather ruled directly from the bench as follows:

So in this case, unfortunately, I’m going to have to deny the Crown’s request for an adjournment. Yesterday was a different situation because the Crown was ill. I adjourned it on the understanding that hopefully we would have a Crown available today. There should be a Crown that is available today. One day should have been enough time to get prepared, so the matter should proceed today.

51The court recessed briefly for about 13 minutes.

52Upon resuming, the Crown proposed that in light of the lack of an adjournment, the accused be arraigned, the Crown would call no evidence, and the trial judge would be invited to acquit.

53Mr. Hasan was arraigned, no evidence was called, and he was acquitted.

Review and Disposition

54The challenge with this appeal is the brevity of the trial judge’s reasons relating to Her Honour’s decision to deny the adjournment application.

55However, other aspects of the transcripts, notably the exchanges between the trial judge, attending Crown Attorneys, and defence counsel, and Her Honour’s ruling on September 4, 2025 allowing a one day adjournment, shed some light for this review.

56The concern that I have is that the trial judge’s own comments appear to be, in some respects, at odds with Her Honour’s decision. For example, on September 4, 2025, Her Honour acknowledged that this would be at least a two-day hearing, if not three days, based on Her Honour’s experience with impaired driving trials. Furthermore, on September 4, 2025, the trial judge rejected the defence submission that this trial was simple and could easily be picked up by another Crown. Her Honour found, to the contrary, that there was some degree of complexity and the requirement that a new trial Crown would have to view the video evidence.

57Second, there was no issue taken by defence counsel regarding the veracity of the trial Crown’s sudden and serious illness preventing her from attending to prosecute the trial in the scheduled time frame.

58While there can be no doubt that the trial judge heard the submissions of the attending Crown counsel on September 5, 2024, neither the parties nor this reviewing court can engage in an analysis to the reasons underlying the exercise of discretion to decline an adjournment and force the matter on.

59While it can be inferred that the trial judge determined there would be delay which prima facie prejudices the accused, it is not possible to know based on the ruling how Her Honour balanced the prejudice with the public’s right to have matters proceed on their merits, particularly in light of the acknowledgment that this was at least a two day trial and the Crown’s representation that she would immediately attend to the trial coordinator’s office to schedule an expedited trial date. Furthermore, this was a first-time adjournment, as acknowledged by the trial judge, and there was no comment as to the Crown’s suggestion that any delay could be dealt with on a s. 10(b) basis. As well, the trial judge did not take up the Crown’s offer to immediately obtain new dates so that the length of delay could be assessed.

60Finally, and perhaps most pertinent, is the trial judge’s own recognition that a further day of trial would have to be scheduled in any event thereby somewhat neutralizing the delay factor.

61While the trial judge assumed or had the expectation that a new Crown could be assigned over the course of the afternoon of September 4 to be ready on September 5, this was in the face of both attending Crown attorneys advising that efforts had been made to locate another Crown to no avail, and that in any event they would not have enough time to prepare adequately to discharge their professional obligations competently. The trial judge made an assumption that the Crown had adequate resources to re-assign this trial on short notice. This assumption is contrary to the Court of Appeal’s caution that judges do not engage in this type of public resource allocation exercise. Furthermore, the conclusion that a new trial Crown would be able to adequately prepare with just under 24 hours’ notice, even if one could have been found, appears contrary to the trial judge’s conclusion on September 4, 2025, that this was not a matter that could be quickly picked up by a new trial Crown.

62The trial judge does not appear to have considered the impact of not granting an adjournment on the public interest in proceedings being decided on their merits. This is a relevant consideration in this case. The offence of impaired driving is a serious one as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The Court, at paras. 62 and 63, noted that the minimum and maximum sentences for driving under the influence of alcohol have been steadily raised by Parliament since 2000, reflecting both the seriousness of those crimes and their effects on society at large. The consequences of impaired driving can result in severe or fatal injury: Lacasse, at paras. 7-8.

63In addition, the trial judge did not address the issue of trial fairness, from the perspective of the Crown and public, of requiring the Crown to prosecute the case when not prepared for reasons that were not disputed and not the fault of the Crown.

64The trial judge also did not explain what the prejudice of a delay to the accused would be should an adjournment be granted. The Crown offered to immediately attend at the trial coordinator’s office to obtain new dates, in which case the delay could have been quantified, but the matter was not held down to allow that inquiry to be made.

65The fact of an unquantified delay, in and of itself, made it impossible to undertake the requisite analysis of prejudice to the accused if the adjournment were to be granted, particularly as this was a first adjournment request. While the accused persons are entitled to trials within a reasonable time, this does not necessarily equate with the earliest available trial date.

66As for the defence submission that the Crown “prioritized” another matter over Mr. Hasan’s trial, I reject this based on the transcript in which the attending Crown explains that they were able to fit another matter in by happenstance which would deal with any suggestion that court resources were being wasted should the adjournment be granted. I accept the Crown’s position that it was not feasible to reassign the trial Crown from that matter to this matter for the reasons explained above.

67In short, the trial judge’s reasons do not permit an analysis of how, if at all, Her Honour weighed the competing factors in exercising her admittedly broad discretion. As such, the trial judge’s discretion gives the appearance of having been arbitrarily exercised. The trial judge erred in law in failing to consider or, alternatively, give adequate weight to the relevant factors in this proceeding.

68The Crown’s appeal is granted.

69The acquittal is set aside, and this matter is remitted for a new trial to the Ontario Court of Justice.

S. Vella J.