CITATION: R. v. S.H., 2026 ONSC 1305

COURT FILE NO.: CR-25-0008

DATE: 2026 03 04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

S.H.

Applicant

H. Adair, for the Crown/Respondent

D. Landry and A. Murdoch-Fyke, for the Applicant/Accused, S.H.

HEARD: February 25, 2026

REASONS FOR DECISION – SECTION 11(b) CHARTER APPLICATION

conlan j.

I. The Charges

1In an Indictment dated 25 February 2025, the accused/applicant, Mr. S.H., is charged with four criminal offences: (i) luring a child under the age of 16 years for the purpose of facilitating the commission of an offence under s. 151 of the Criminal Code, contrary to s. 172.1(1)(b) of the Criminal Code; (ii) invitation to sexual touching, contrary to s. 152 of the Criminal Code; (iii) sexual interference, contrary to s. 151 of the Criminal Code; and (iv) sexual assault, contrary to s. 271 of the Criminal Code.

2It is the same alleged victim, a child female, who is the subject of all four counts.

II. The Application

3S.H. applies for an order staying all of the charges against him under s. 24(1) of the Charter, on the basis that his right to be tried within a reasonable time, pursuant to s. 11(b) of the Charter, has been infringed.

III. Analysis

A. The Presumptive Ceiling

4The presumptive ceiling for cases going to trial in the Superior Court of Justice, like this one, is 30 months. If the total delay from the charge date to the actual or the anticipated end of the trial (minus defence delay) exceeds that ceiling, then the delay is presumptively unreasonable and, unless the Crown establishes the presence of exceptional circumstances in order to rebut the presumption, a stay of proceedings will follow. On the other hand, if the total delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 46-48.

B. The Governing Framework for Calculating the Period of Delay

5As per the decision of the Court of Appeal for Ontario in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the framework is as follows:

(i) calculate the total delay – the period from the charge date to the actual or the anticipated end of the trial;

(ii) subtract from that any defence delay, which results in the period of net delay;

(iii) compare the net delay to the presumptive ceiling;

(iv) if the net delay exceeds the presumptive ceiling, and if there are no exceptional circumstances to rebut the presumption of unreasonable delay, then a stay will follow;

(v) if there are exceptional circumstances (discrete events and/or a particularly complex case), subtract delay caused by discrete events from the net delay, which results in the period of remaining delay;

(vi) if the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was sufficiently complex such that the time the case has taken is justified and, therefore, the delay is reasonable; and

(vii) if the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

C. When Does the Jordan Clock Start Running in our Case?

6The parties do not agree on this question. The defence says that the clock started running on August 22, 2023 – the date of the arrest. The Crown says that the clock started running on the date that the Information was sworn (the charge date) – September 19, 2023.

7In R. v. Gleiser, 2017 ONSC 2858, on a summary conviction appeal, K.P. Wright J. observed that"[i]n cases of significant delay between the arrest and the swearing of the information, the date of charge can be relied upon in calculating delay. In this case, more than three weeks elapsed between the date of charge and swearing, with no explanation. Accordingly, I find that the trial judge's approach in this case was not in error" (para. 18).

8It should be noted that the sentence quoted above is clearly not what was intended by Justice Wright. What was intended is that, in cases where there is significant delay between the date of the arrest and the date of the charge, it is the earlier date, the date of the arrest, that can be relied upon in calculating delay. That is how the Gleiser opinion has been interpreted in subsequent decisions, including the decision of the Court of Appeal for Ontario in R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 35-36.

9In any event, I disagree with the defence. Allison is binding authority. If one reads that decision, at paras. 35-43, it clearly stands for the proposition that the Jordan clock starts running on the date of the charge, regardless of the delay between the arrest date and the charge date.

10Here, the clock started running on September 19, 2023.

D. When Does the Jordan Clock Stop Running in our Case?

11The parties do not agree on this question. The defence says that the clock will stop running on June 5, 2026 – the last day of the running sittings for criminal trials in the Superior Court of Justice in Walkerton that this case has been put to. The Crown says that the clock will stop running on May 29, 2026 – the anticipated last day of the trial.

12I agree with the Crown. The end date for the purpose of calculating the period of delay in this case is May 29, 2026.

13It is undisputed that (i) the Crown calls the list in Walkerton, and (ii) the sittings that this case has been put to start on May 25, 2026, and (iii) the trial is estimated to last five days.

14Defence counsel submits that there is no guarantee that this case will be called first on May 25^th^ and, thus, no assurance that this trial will end on May 29^th^. Crown counsel who argued the within application submitted that the Crown will be calling this case first because it is the highest priority case for those sittings.

15I accept the word of Ms. Adair, as an officer of the court. Although it would have been better for the Crown to have filed actual evidence in support of its assertion that this case will be called first on May 25^th^, such as an affidavit from the senior Crown Attorney in Walkerton or an affidavit from an administrative assistant in the Crown office, I have no reason to doubt the undertaking made by Crown counsel in oral argument on the within application.

E. What is the Period of Delay in our Case?

16It goes without saying that the parties do not agree on this question.

17The defence says that the total delay is 1018 days; and 18 days of defence delay are conceded; and, thus, the net delay is 1000 days; and there are no exceptional circumstances; and, thus, a stay of proceedings must be ordered because 1000 days, or 32 months and 24 days, clearly exceeds the 30-month ceiling.

18The Crown says that the total delay is 983 days; and 18 days of defence delay are conceded; and a further 119 days of defence delay ought to be found; and, thus, the net delay is 846 days or 27.81 months, below the presumptive ceiling. The Crown also makes an argument that there are 59 days attributable to a discrete event (exceptional circumstances), resulting in a period of remaining delay of 787 days or 25.87 months, well below the presumptive ceiling.

19As a result of this Court's conclusions made above on the start and end dates of the Jordan clock, we know that the period of total delay in this case is the 983 days advanced by the Crown.

Defence Delay

20The next step in the framework is to calculate the period of defence delay. We need that figure so that we can subtract it from the total delay in order to arrive at the period of net delay.

21The defence concedes 18 days of defence delay between November 24 and December 12, 2023, when the case was in the lower court, due to its delay in filing the Notice of Election and Preliminary Inquiry Scheduling Form.

22Should any further time be counted as defence delay? The Crown wants this Court to further attribute to defence delay the 119 days between January 30, 2026 and May 29, 2026. The Crown's argument is that both the Crown and the Court were available for the trial of this case during that period of time, but the defence was not available.

23Alternatively, the Crown submits that this Court could attribute half of that time period to defence delay and the other half to Crown delay, following the reasoning in R. v. Rockburn, 2025 ONSC 1504. That would result in a period of net delay of 29.7 months, still below the presumptive ceiling.

24The defence submits that none of those 119 days should be counted as defence delay.

25One of the key authorities relied upon most heavily by the Crown in our case is the decision in R. v. Bent, 2025 ONSC 1962. In that case, Justice Campbell found that both the Crown and the Court were available to conduct the trial commencing on March 10, 2025, but defence counsel was not available, and the trial was ultimately scheduled to commence on June 9, 2025 in order to accommodate the calendar of defence counsel. Thus, Justice Campbell deducted those 3 months of defence delay from the period of total delay (paras. 18-20).

26Of course, in that case, Justice Campbell, at para. 20, expressly acknowledged the authorities from the Supreme Court of Canada and the Court of Appeal for Ontario on the issue of whether defence counsel are reasonably expected to keep their professional calendars open endlessly in order to accommodate early trial dates that might be offered – those authorities being R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; and R. v. Cowell, 2019 ONCA 972, 151 O.R. (3d) 215, at para. 32, leave to appeal denied, 2020 36060 (SCC).

27Defence counsel are clearly not expected to do so. There are numerous authorities that stand for that proposition, even in addition to those cited in the Bent decision.

28One of those additional authorities relied upon by the defence in our case is the decision of Justice Leroy in R. v. Albinowski et al., 2017 ONSC 2260. That decision was overturned on appeal, however, and thus it is the decision of the Court of Appeal for Ontario, 2018 ONCA 1084, that must govern this Court's assessment of the application of that case to our facts.

29The appellate decision in Albinowski is important. It is particularly relevant in our case because, unlike in the Bent decision, Albinowski involved an attempt to reschedule hearing dates, as is what happened in our case (not to schedule hearing dates at first instance, like in Bent).

30There is a material difference between a rescheduling and a scheduling at first instance. In fact, Godin itself was a rescheduling case, like ours. In a rescheduling case, in particular, it makes total sense that Cromwell J. for the Supreme Court of Canada would have used the words that he used – defence counsel are not required to hold themselves in a state of perpetual availability (Godin, at para. 23).

31As an example, assume that a trial is set for one year from now. Eight months after it is scheduled, the Crown calls defence counsel to say that it wants to bring the trial forward to the following month. Is defence counsel required, or even expected, to accommodate that request? Likely not, even post-Jordan, because that would essentially mean that defence counsel should have left their professional calendar open for a few months before the scheduled start date of the trial, just in case something opened up on an ad hoc basis. That is the very definition of defence counsel being unreasonably expected to hold themselves in a state of perpetual availability.

32Albinowski is important because it reminds us what Godin was all about. It puts into clearer context the comment made by Justice Cromwell. Thus, I think it is useful to set out below paras. 28-35 of the decision of Roberts J.A., for the Court of Appeal for Ontario, in Albinowski:

[28] The Crown submits that the trial judge erred in characterizing delay due to defence counsel unavailability as institutional delay because he relied on the dicta from R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that asserts defence counsel need not hold themselves in a state of perpetual availability for the purpose of scheduling steps in a proceeding, and are therefore not required to accept the first available date offered ("the Godin principles"). The Crown argues that the analytical framework in Jordan has overtaken the Godin principles, and requires courts to attribute delay to the defence from the first date the Crown and court are ready to proceed, but the defence is not. In the alternative, the Crown submits that the Godin principles, which arose in the particular circumstances of that case, do not apply here because several dates were offered to and rejected by defence counsel due to their unavailability.

[29] The respondents submit that the Godin principles are still good law and were appropriately applied by the trial judge.

[30] In my view, the trial judge erred in his characterization of delay due to defence counsel unavailability as institutional delay. His reliance on the Godin principles was misplaced.

[31] The Godin principles applied by the trial judge appear in para. 23 of the Supreme Court's decision, as excerpted below:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [Emphasis added.]

[32] It is important to recall the circumstances under which Cromwell J. for the Supreme Court made these statements. The determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case – specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings.

[33] That is not the present case. Here, defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. Their unavailability was not related to "defence actions legitimately taken to respond to the charges", such as "preparation time" and "defence applications and requests that are not frivolous": Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:

As another 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.

[34] This court in Picard, at para. 113, similarly recognized the inapplicability of the Godin principles when more than one single available date is offered. This court upheld the trial judge's attribution of delay to the Crown because of Crown counsel's unavailability on any of the dates offered in a five-month period:

Furthermore, the situation in Godin is not comparable to what occurred in this case and does not stand for the proposition advanced by the Crown. In Godin, the court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11(b) requires reasonable availability and cooperation, but does not require defence counsel to "hold themselves in a state of perpetual availability." In the present case, the delay in question did not arise from Crown unavailability on a single date, but from Crown unavailability on any of the dates offered in a five-month period.

[35] The trial judge in the present case erred by failing to undertake the analysis of defence delay required under the Jordan framework and by applying the Godin principles, which have no application to the circumstances of this case. As a result of these errors, his analysis is not owed deference and must be undertaken anew.

[Emphasis in original.]

33In our case, the Crown's argument about the 119 days must fail.

34Ours is a case where defence counsel was very diligent in protecting the accused's s. 11(b) Charter right. There could have been no doubt, no confusion, that S.H. was not about to waive his constitutional right to be tried within a reasonable period of time. In fact, before the May 2026 trial dates were scheduled, defence counsel expressly raised the s. 11(b) issue (see paragraphs 71 and 72 of the Affidavit of Bradie Mitchell filed in support of the within application).

35On the date that the trial was scheduled, at the assignment court on May 5, 2025, the defence again expressly raised the s. 11(b) issue. Notwithstanding that, none of the other justice system participants treated the case with any urgency. Quite the contrary – the trial was targeted to take place well after the presumptive Jordan date. It was targeted for late May 2026. The presumptive Jordan date, which date is clearly noted on the Indictment and would have been well known to everyone involved, is February 22, 2026, some three entire months earlier than the scheduled start date of the trial.

36The transcript from the court attendance on May 5, 2025 speaks for itself. There was clearly no waiver by the defence. There was clearly no concession by the defence that there was any defence delay. There was clearly no concession by the defence that the net Jordan date was anything different than the presumptive one. The most that the defence conceded was that it was content with the trial being stacked with other cases for the same sittings in late May 2026, with no guarantee that it would proceed, because the alternative would have been to have the trial set to begin on an even later date.

37Many months after the May 5, 2025 court appearance, on October 16, 2025, at the hearing of an unrelated pretrial application, defence counsel again raised the s. 11(b) issue and told the presiding justice that a stay application would be brought.

38It was then defence counsel that immediately, on October 16^th^, initiated attempts to try to find earlier trial dates. Correspondence was exchanged between counsel on both sides. Although the Crown, on October 30^th^, indicated in correspondence to defence counsel the possibility of the trial being brought forward to be heard in January 2026, the potential rescheduling of the trial was not formally addressed in court until the appearance on November 3, 2025.

39According to the transcript, on November 3, 2025, the Crown told the presiding justice that the Crown was targeting this case as number two on the running sittings list for January 2026 (no longer for late May 2026). Defence counsel told the justice that they were not available in January 2026 because of trials scheduled in other jurisdictions. The Crown then asked whether defence counsel was available during the two-week period starting on February 9, 2026. The defence replied in the negative, for the same reason. The Crown then asked whether defence counsel was available during the two-week period commencing on March 2, 2026. The defence replied in the negative, for the same reason. The presiding justice then directed counsel to have another judicial pretrial conference and endorsed that the trial would proceed during the late May 2026 sittings because the defence was not available in January or February 2026. Nothing was said on the record by the justice about March 2026.

40As I am the criminal case management judge for the Central West Region responsible for matters in Grey and Bruce Counties, that further judicial pretrial conference was held before me. It took place on December 12, 2025. My endorsement from that appearance indicates that the trial was targeted to start on a date in May 2026 that is well beyond the presumptive Jordan date of February 22, 2026.

41In my opinion, it is unreasonable for the Crown to suggest that defence counsel should have been expected to accommodate earlier trial dates in January or February 2026. Respectfully, the case should have never been scheduled to take place in late May 2026 to begin with. Section 11(b) was clearly a live and real issue. May 2026 was a full three months after the presumptive ceiling date.

42In early November 2025, approximately six months after the trial was scheduled, defence counsel was offered earlier trial dates. It was proposed that the trial could be rescheduled for only two months into the future (in January 2026). Or it could be rescheduled for only three months into the future (in February 2026).

43Defence counsel did not have perpetual availability after May 5, 2025. Nor was defence counsel expected to have that. As the months ticked away between then and late October 2025, defence counsel had no reason to think that it had to keep their professional calendar open in the few months prior to late May 2026 in the event that an offer suddenly came to hurry up the start date for the trial.

44It makes no difference to the analysis that defence counsel, while exchanging correspondence with the Crown in late October 2025, did not specifically mention its availability to conduct the trial earlier than in late May 2026. There was no firm offer on the table. There was simply a possibility that the Crown (never mind the Court) might be able to do it earlier.

45Nothing was offered to defence counsel in April 2026 or earlier in May 2026. I would have been less forgiving of defence counsel if something had been offered during those times. I would have likely ruled that defence counsel ought to have accommodated such an earlier date in order to fulfill its equal responsibility for avoiding complacency and working diligently to get matters heard within the Jordan timeline.

46It would appear that the Crown offered something in March 2026, but there is no evidence before this Court that any judge was available to hear the trial in March 2026. The justice who was presiding at the appearance on November 3, 2025 is a very thoughtful, careful, and precise jurist and is also the local administrative judge. That judge made no mention on the record, or in the endorsement, about March 2026. And, at the very next appearance on January 6, 2026, neither the Crown in court nor the same presiding justice made any mention of March 2026. Only January 2026 and February 2026 were mentioned.

47I am not sure what I would have decided about March 2026, especially given the instructive comments of Justice Roberts in Albinowski (ONCA) about defence counsel turning away multiple dates being offered by the Crown and being available to the Court, but it matters not. There is no evidence that the trial could definitely have proceeded in March 2026. Nothing on any transcript. Nothing in any affidavit. Nothing in anything filed, even if not in an affidavit, like correspondence from the trial coordinator or from the local administrative justice or a court calendar showing what was assigned to various Superior Court judges in Grey and Bruce Counties in March 2026, as examples. Nothing.

48Even putting the strictures of evidence or quasi-evidence aside, as the criminal case management judge, I do not know whether the trial could have been accommodated by the Court in March 2026. It would have depended on what else the judges in Grey and Bruce Counties were doing. It would have depended on what else was already scheduled to be heard in March 2026. It may have depended on the disposition of any necessary applications for adjournment by the Crown in other cases.

49The most reliable evidence that does exist, specifically the comments of the presiding justice at court on November 3, 2025 and the comments of both the Crown and the same presiding justice at court on January 6, 2026, suggest that the trial could not have proceeded in March 2026.

50In the end, our case is much like the one faced by Justice Harris sitting as a summary conviction appeal court in R. v. A.(C.), 2024 ONSC 1603. And many of the comments made by Justice Harris, and the quotations set out by my colleague from other decisions of other courts, are directly relevant to our case. Paragraphs 16-29 of Justice Harris' decision are set out below:

[16] I agree with the trial judge and the respondent. There was no delay that ought to be attributed to the defence. The total delay therefore equals the net delay and exceeds the Jordan 18-month ceiling. The trial judge was correct to direct a stay.

[17] In arguing that the failure to take the bring forward dates should count as defence delay the Crown relies on Jordan where the majority held that "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not" (paras. 64). On their analysis, that is what happened here. The three dates were offered to bring the trial forward but the defence was not ready to proceed.

[18] There are two problems with this. First, this statement from Jordan was never intended to apply to a situation in which dates are offered to move forward a trial which has previously been scheduled. This case cannot be analyzed under the framework established by the case law focussing on the parties' respective positions at the time a trial date is initially set. None of the cases relied upon by the Crown directly address a situation analogous to that present here. In this factual situation, there is the extra element that does not arise when a trial date is initially set: the adequacy of the notice given to defence counsel.

[19] Second, the strictness and automatic operation of this bright-line rule from Jordan has now been reconsidered by the Supreme Court in the decisions in Hanan and Boulanger. These decisions require that unavailability of defence counsel and the ensuing delays be "reasonably apportioned" based on all the relevant circumstances: Hanan, para. 9; Boulanger, paras. 8-10.

[20] The new direction to apportion delay signals a return to a realistic and purely factual perspective, summarized by Justice Cromwell's pithy pre- Jordan conclusion in R. v. Godin, 2009 SCC 26 at para. 23,

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. (Emphasis added)

[21] The judgments in Hanan and Boulanger serve to reinvigorate the Jordan holding with reference to defence delay,

65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. (Emphasis added)

[22] See also Cody at paras. 29-33.

[23] It is true that like other participants in the system, defence counsel have an obligation to fight the pervasive complacency which has led to chronic delays in criminal justice. Cooperation by defence counsel, a key participant in the system, is mandatory: Jordan, para. 5 and see para. 113; J.F., at para. 58; K.J.M, at para. 83.

[24] In this instance, Ms. Morphew was proactive and cooperated fully. When she was offered the earlier dates, in saying she was not available, she would give the reason she was not available and offer other proximate dates. She did what she could and was fully cooperative. Furthermore, the trial judge, as will be elaborated upon more fully below, made a reasonable and unchallenged finding of fact that Ms. Morphew moved the case along expeditiously and was fully cooperative. It cannot be forgotten that she did ultimately agree to a date cutting out over three and a half months of delay from the original trial date.

[25] Ms. Morphew's conduct and position, as an officer of the court, was beyond reproach. Defence counsel, like the other participants in the system, have not only work commitments and obligations but they have their own personal commitments. Ms. Morphew's circumstances which prevented her from taking the dates offered were legitimate. They could not be and were not impugned by the Crown at trial or upon appeal. To expect defence counsel to sacrifice her prior commitments upon what amounted to little more than a moment's notice is not reasonable. No participant in the system, not the Crowns, defence counsel or even judges ought to be expected to make these types of sacrifices on such short notice. Any contrary conclusion would require a more or less total devotion to the system of criminal justice to the exclusion of everything else, including family commitments and personal lives, a troubling and clearly untenable prospect.

[26] Even if Ms. Morphew did not have scheduled vacation and a personal commitment standing in the way of an earlier trial date, the short notice was unlikely to allow her sufficient preparation time. A trial can be too speedy, not allowing for adequate preparation: Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, paras. 202, 269 per Lamer J. dissenting but not on this point. Various types of work are required for defence counsel to prepare for trial: R. v. Rehal, 2023 ONCJ 271 at para. 11; R. v. D.A., 2018 ONCA 96, at para. 13. Defence counsel, like Crown counsel, often have a heavy workload and have more than one case pending at a time. One would think that quite a lot of the preparation for a case, as for Crown counsel as well, takes place not long before the trial is to begin. Otherwise, amidst the welter of other cases and commitments, trial preparation may go stale. Notice of a new closer trial date and the underlying expectation that the defence must take virtually everything offered must be seen in this light: R. v. Qureshi [2023] O.J. No. 1903, 2023 ONCJ 189 at para. 19.

[27] In another three-day sexual assault trial in the Ontario Court of Justice, Justice Martins found that 75 days was the minimum preparation time to get ready for trial: R. v. Nguyen September 7, 2023 (unreported), at para. 15. That is more than twice the notice defence counsel was given in this instance.

[28] Justice Shreck recently said in R. v. Bowen-Wright, 2024 ONSC 293 at para. 53,

The remedy for ongoing systemic delay cannot be an expectation that the members of the defence bar will compensate for it by making themselves available on short notice. To do so would be to allow delay to become part of "business as usual": Jordan, at para. 107.

[29] What should have happened is that the crisis ought to have been recognized early on. Good options became more limited over time. There was a series of missed opportunities: 1. The Crown should have made efforts to hasten disclosure to the defence; 2. The time from full disclosure to the setting of the trial date should have been abbreviated; and 3. The trial date 10 months away and above the Jordan ceiling should not have simply been accepted. Instead of taking the date from the trial coordinator, the case should have gone before a judge to canvas all conceivable options to see if a closer date could be obtained. Once the trial date was set, the time for effective action was quickly slipping away.

51Our case is also one where defence counsel's conduct was beyond reproach. Our case is also one where the earlier offered trial dates in January and February 2026 were on short notice. Our case is also one where the crisis ought to have been recognized and avoided earlier on.

52For all of these reasons, I have concluded that the period of net delay in this case is 983 days less 18 days = 965 days. That equals 31.7 months (both sides agree that the arithmetical calculation is the number of days divided by 30.417).

53One final point needs to be made on this issue of defence delay and the 119 days in question. The Crown did not give me the decision in Rockburn. It was cited in the Crown's factum but not provided and is not available anywhere online (I looked for it). I can only assume that there was some reasonable basis for the judge in that case to attribute the period of time in question equally between the two sides.

54Given this Court's findings and given that there is no basis to say that the trial in our case could have proceeded in March, April, or earlier in May 2026, there could not possibly be any sound reason in our case for doing what the judge did in Rockburn. This Court is not prepared to characterize any of the 119 days in question as defence delay.

Exceptional Circumstances

55The only thing left to decide is whether the Crown is correct that 59 days ought to be deducted from the period of net delay on account of exceptional circumstances – an alleged discrete event.

56What happened was that, in the lower court, the complainant attended at the police station days before the commencement of the preliminary inquiry. Another statement was provided to the police at that time. A relatively short one. The Crown applied for an adjournment. The adjournment was granted. The hearing was adjourned from October 8, 2024 to January 9, 2025, though the defence and the Ontario Court of Justice could have done it on December 6^th^. The Crown on the within application, quite responsibly, asks only to deduct the period of time between October 8^th^ and December 6^th^ – 59 days.

57I disagree with the Crown. That was not a discrete event that amounts to an exceptional circumstance. Assuming, without deciding, that what happened was unforeseen or reasonably unavoidable, which is the first prong of the test set out by the Supreme Court of Canada at para. 69 in its decision in Jordan, the second prong of that test has certainly not been met – what happened could easily have been remedied without the need for an adjournment.

58We know from the transcript of the appearance on October 8, 2024 that whatever was said by the complainant to the police on that date was relatively brief. We also know that the supplementary statement had been given to the police the week before. There is no explanation in the record, none before the preliminary inquiry judge and none before this Court on the within application, as to why it was not disclosed to the defence before October 8^th^, which was a Tuesday. Timely disclosure of that would have very likely avoided the need for any adjournment.

59Further, in order to avoid delay, the Crown in court on October 8^th^ could have simply advised defence counsel of the development but undertook not to rely upon the supplementary information in order to save the date and get the matter on to the Superior Court of Justice. The case was already in serious trouble. More than 13 months had elapsed from the charge date. The Crown should have done whatever was reasonably necessary to avoid a Crown application for an adjournment.

60Finally, the whole issue of this alleged discrete event appears to be moot. The reason is that the transcript reveals that the preliminary inquiry would have likely been adjourned anyways because of a potential conflict of interest flagged by the presiding justice. The Crown advances no argument about that being an exceptional circumstance.

61There was no discrete event associated with the adjournment of the preliminary inquiry on account of the recent attendance by the complainant at the police station. The 59 days will not be deducted form the period of net delay.

62There are no other exceptional circumstances being relied upon by the Crown. Put another way, there is no separate period of remaining delay; the period of net delay is the final period of delay.

F. Conclusion – The Charges Must be Stayed

63The period of net delay, 31.7 months, well exceeds the 30-month Jordan ceiling. That is presumptively unreasonable. The Crown has not rebutted that presumption. This Court has no discretion to "save" the case.

Under s. 24(1), the charges are stayed as a result of an infringement of s. 11(b) of the Charter.

G. Alternatively, the Charges May Well Have Been Stayed Even if the Crown is Correct

64Although not necessary to the decision, in the event of an appeal of this decision, I want to add the following.

65If it is found that this Court erred in not deducting some of the 119 days from the period of total delay, or if it is found that this Court erred in not deducting the 59 days from the period of net delay, the final period of delay in this case would likely still have been between 29.5 and 30 months.

66In those circumstances, there is a decent chance that this Court would have found this to be one of those relatively rare and clear cases where a stay of proceedings was still warranted.

67In my view, it is arguable that taking almost 30 months to complete this very simple, effectively one-witness case is markedly longer than it reasonably should have taken. The clear straightforwardness of the case is exemplified in the fact that it was once thought to take as little as three days for trial including any defence evidence and closing submissions by counsel.

68It is equally arguable, in my opinion, that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings. The very thorough affidavit of Bradie Mitchell, including the transcripts and correspondence attached thereto, paint a picture of the defence, at least until the court attendance on November 3, 2025, doing whatever it possibly could to get the case done in a timely manner.

69A decision on a s. 11(b) application is not about pointing fingers at justice system participants. The Walkerton Crown office and the Grey-Bruce Superior Court of Justice are swamped. I know that from my work as the criminal case management judge. It has never been busier. The Walkerton Crown office is under constant pressure to deal with more and more cases but with no more resources. The senior Crown and everyone else are dedicated and competent and trying their very best.

70In hindsight, a different pathway had to be taken on May 5, 2025.

Conlan J.

Released: March 4, 2026

CITATION: R. v. S.H., 2026 ONSC 1305