R. v. Mitchell, 2026 ONSC 1363

COURT FILE NO.: CR-26-20000074-0000

DATE: 20260306

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DWAYNE MITCHELL

Cindy Nadler, for the Crown

Daniel Galle, for the Accused – Dwayne Mitchell

HEARD: February 2, 2026

REASONS FOR JUDGMENT

s. 11(b) CHARTER APPLICATION

NEWTON-SMITH J.

1Dwayne Mitchell was charged with various offences arising out of a large-scale investigation named Project Wildcat. His trial, on charges of conspiracy to discharge a firearm and conspiracy to commit the offence of intimidation, was ultimately set to commence on February 2, 2026.

2He brought an Application for a stay of proceedings, alleging that his s. 11(b) Charter right to be tried within a reasonable time had been violated. The Application was heard on February 2, 2026, the day his two week jury trial was set to commence. I dismissed the Application and jury selection commenced the following day, February 3, 2026. On February 11, 2026, the jury found Mr. Mitchell guilty on all counts.

3These are my reasons for judgement on the Charter Application.

OVERVIEW AND HISTORY OF THE PROCEEDINGS

4The Information charging Mr. Mitchell was laid on July 31, 2023, and the jury came to its verdict on February 11, 2026. The total length of time from charge to conclusion of the trial is 30 months and 11 days.

5It is 11 days over the presumptive Jordan ceiling of 30 months.

6It is the position of the defence that there was no defence delay in this case. The defence submits that the delay of over 30 months is presumptively unreasonable and cannot be justified by the Crown.

7It is the Crown’s position that there is defence delay which brings the net delay to 26 months and 6 days. The Crown submits that the delay is under the Jordan ceiling and is not unreasonable. Alternatively, the Crown submits that this is a complex case and the modest delay in bringing it to trial is justified by the complexity of the proceedings.

The Project Wildcat investigation

8This prosecution is part of Project Wildcat. Project Wildcat was a Part VI wiretap investigation conducted by the Toronto Police Service’s organised crime enforcement – major projects section. The investigation involved 17 confidential human sources [CHS] and 28 persons of interest. It included numerous interceptions, general warrants, tracking warrants and other forms of surveillance. The first Information to Obtain [ITO] and appendices were over 3 000 pages long. The ITO was based on information provided by 32 CHS and targeted 90 persons, 106 places, 54 vehicles and 105 mobile devices. The second ITO and appendices were over 1 600 pages.

9A total of 8 police services were involved in the investigation and 50 people were ultimately arrested.

10Approximately 300 GB of disclosure was made.

The prosecution of the Applicant

11Mr. Mitchell had two separate matters that were both set for preliminary hearings in the provincial court. On this matter, he was placed in a prosecution group with one co-accused, Mr. Sarikakis.

12On June 13, 2024, the Crown obtained directed indictments, and the matters were moved to the Superior Court. Crown counsel notified all defence counsel that a Case Management Judge would be requested, as well as a single Garofoli hearing respecting all outstanding accused in Project Wildcat and the 17 indictments that were before the court.

13At the first Superior Court appearance on July 4, 2024, counsel for Mr. Mitchell took the position that he would not consent to the joint Garofoli. When asked by the presiding Justice what the objection was, counsel stated that he had no “specific substantive objections”, but it was a “first appearance” and they hadn’t had the opportunity to “consider the circumstances”. Justice Forestell found that a joint Garofoli was in the interests of justice and accordingly made the order alongside an order appointing a Case Management Judge.

14A judicial pre-trial was scheduled for August 21, 2024, before Justice Forestell. Counsel for Mr. Mitchell filed his Form 17 JPT form the day before the scheduled JPT.

15At the JPT, it was agreed that the trial would be scheduled after the Garofoli application. A 10 day trial was scheduled to commence on September 29, 2025 for Mr. Mitchell and his then co-accused, Mr. Sarikakis.

16As of April 2025, a total of 13 unique prosecution groups were set down for trial involving 22 accused persons.

17Mr. Mitchell and Mr. Sarikakis’ trial was set for 2 weeks with a jury. The trial was to take place on the weeks of September 29 and October 6, 2025.

18When the matter was first up for trial on September 29, 2025, there were no judges available to hear the trial.

After the matter could not be heard on the first scheduled trial date of September 29, 2025

19September 30, 2025, was Truth and Reconciliation Day and the courts were closed. On October 1, 2025, there were still no available judges, and the matter was adjourned to October 8, 2025 to set a new trial date.

20The next day, October 2, 2025, Crown counsel wrote to the defence saying that due to collapsing matters, the following 2 weeks, the weeks of October 6 and 13, had become available for the trial. After which, the next available dates to the court were February 2, 2026, followed by February 9 and all of March 2026.

21Counsel for Mr. Mitchell (not Mr. Galle) did not respond to the Crown’s email.

22On October 7, 2025, Crown counsel attempted to follow up with the defence by email, asking:

Any updates on the below? As I never heard back from you in regards to taking dates this week or next, are we scheduling a trial tomorrow on any of the dates below?

23Mr. Schembri, Crown counsel in charge of scheduling, then wrote back to all counsel saying:

I think it is fair to say next week at this point is unlikely. We would have to ask as we are only days away & we have no prioritised that week. Also March 2, September 14 &21 are gone as I have set other trials.

24Again, counsel for Mr. Mitchell did not respond. The Crown sent another email the next morning, October 8, when the matter was schedule to be in court to set the new trial date. Crown counsel asked:

Morning [counsel] – are we setting a trial date? If so – which dates were you looking at?

25This time, counsel for Mr. Mitchell responded saying only, “Should we hold march 2 or march 9”.

26The matter was up in court later that morning. By this time Mr. Mitchell’s co-accused, Mr. Sarikakis, had decided to resolve his matter, leaving Mr. Mitchell to proceed to trial alone. Counsel for Mr. Mitchell asked that the matter be adjourned for “a week or two” to secure new trial dates and so that he could “receive final instructions”.

27The matter was adjourned to October 14, 2025, at which time a new trial date of February 2, 2026, for 10 days was set.

28On October 17, 2025, Crown counsel wrote to counsel for Mr. Mitchell to advise that an earlier trial date was available:

…I believe that if we can agree the trial is 7 days, as opposed to 10, January 5^th would be available for us to start Mr. Mitchell’s trial.

I think given Mr. Sarikakis is resolving, and given the case is largely based off approximately less than 20 brief intercepts, we should easily be able to get the case done in 7. Please let me know your thoughts.

29Counsel for Mr. Mitchell did not respond to the email.

30Two further follow up emails were sent by the Crown on October 20 and 27, 2025. Again, counsel for Mr. Mitchell did not respond.

31On October 20, 2025, Crown counsel wrote:

I am just following up on this as we have an appearance tomorrow for Mr. Mitchell at 9:00 am to put the trial and 11b dates on the record.

As you know we have not set an 11b, but we may not need to if you accept the Jan 5 date.

32On October 27, 2025, Crown counsel wrote to Mr. Mitchell’s counsel again:

Just following up on this again – can we take the Jan 5 date? I would like to get this sorted before our appearance on the Jordan docket on Wed.

33Counsel for Mr. Mitchell did not respond to any of the emails attempting to set the trial for January 5, 2026. When the matter was next in court on October 28, 2025, to address scheduling the s. 11(b), the following exchange occurred:

Crown counsel: The trial has been rebooked for February 2nd, Your Honour, for 10 days in length. However, with Mr. Sarikakis pleading, the trial can be significantly shortened, so the first days of the trial could be used for Mr. Rippell's 11(b) - note - and - but in addition to that we had written Mr. Rippell and asked him if he was available on January 5th for seven days to do 11(b) and we haven't heard back. I'm wondering, Mr. Rippell, if you were aware of that email.

C. RIPPELL: Yes. As my friend knows, I - given the dates that have been offered I will no longer be able to do the case because I was busy but we certainly want to take the earliest dates. So I anticipate having an answer for my friend on the, on the 30th to see if we can juggle another lawyer who's able to accept that date but at, at this point we cannot.

34The matter was then adjourned to October 30, 2025, in “Jordan” court. An agent appeared for defence counsel and confirmed the February 2, 2026, trial dates. There was some discussion on the record of the possibility of a trial in January. Given what appeared to be defence counsel’s unavailability, no steps had been taken to change the time estimate and secure the dates.

35The matter was ultimately adjourned to the February 2, 2026, trial date and the s. 11(b) scheduled to be heard on the first day of trial.

The position of the parties

The defence position

36It is Mr. Mitchell’s position that there is no period of delay that is attributable to the defence in this case. The total delay is over the Jordan ceiling and presumptively unreasonable. The burden of justifying the delay is on the Crown. It is Mr. Mitchell’s position that, despite being a Project case, the prosecution involving him was not complex and he took all reasonable steps to expedite the matter. There is no justification for the delay in this case.

The position of the Crown

37It is the Crown’s position that the period from October 6, 2025, until the trial date of February 2, 2026, is defence delay. Once this is subtracted from the total delay, the net delay is 26 months and 6 days which is below the Jordan ceiling.

38The Crown and the court were available for a 2-week trial commencing on October 6, 2025. The defence failed to respond to the Crown’s email suggesting the trial proceed on those dates, and it is the Crown’s position that the delay from October 6 until the February 2, 2026, trial date is defence delay.

39Alternatively, the Crown takes the position that, even if the total delay from October 6, 2025, until February 2, 2026, is not attributable to the defence, the period from January 5, 2026, until February 2, 2026, is defence delay. The Crown and court were available for a 7-day trial commencing on January 5, 2026, but no date was secured because again the defence failed to respond to the Crown’s scheduling emails. Once this period of 4 weeks is subtracted from the total delay, the net delay falls below the Jordan ceiling by a month.

40Even if the net delay is over the Jordan ceiling, it is the Crown’s position that this is a short period of delay, 11 days, and is justified by the particular complexity of the proceedings. The onus then falls to the defence to demonstrate that the case took markedly longer than it reasonably should have and meaningful steps were taken by the defence to expedite the proceedings. It is the Crown’s position that no meaningful steps were taken by the defence to expedite the case, and the case did not take markedly longer than it reasonably should have to.

LAW AND ANALYSIS

41In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling for delay beyond which trial delay becomes presumptively unreasonable. For trials in the Superior Court this presumptive ceiling is set at 30 months.

The Jordan Framework

42In R. v. Coulter, 2016 ONCA 704, at paras. 34-41, the Ontario Court of Appeal summarised the application of the Jordan framework in the following steps:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.

(2) Subtract defence delay from the total delay, which results in the “net delay.”

(3) Compare the net delay to the presumptive ceiling.

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

(5) Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose of determining whether the presumptive ceiling has been reached.

(6) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

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

43See also: R. v. Zahor, 2022 ONCA 449, at paras. 61-74.

Application of the Jordan Framework

Total delay

44In this case, the Information was sworn on July 31, 2023. The trial was ultimately scheduled to commence on February 2, 2026, and conclude on February 13, 2026. The 11(b) was argued on February 2, 2026, the first day of the scheduled trial. The charge to the jury concluded on February 11, 2026, and the jury returned a verdict that same day.

45The total delay in this case to the first day of trial was 3 days over the Jordan ceiling. The total delay to the actual end of the trial was 11 days over the Jordan ceiling.

Defence delay

46Defence delay comprises, “delays cause solely or directly by the defence’s conduct” or “delays waived by the defence” (R. v. Hanan 2023 SCC 12, at para 9).

47There is no period of time here where delay was expressly waived by the defence. What is in issue is whether all, or some portion of, the delay from October 6, 2025, until February 2, 2026, is attributable to the defence.

48In considering whether a period of time will constitute defence delay, all relevant circumstances must be considered (R. v. Boulanger, 2022 SCC 2, at para.8). The Supreme Court made it clear in Jordan that defence actions taken to respond to the charges fall outside the ambit of defence delay. Similarly, where the court and the Crown are not available delay will not be attributable to the defence even if the defence was also unavailable. On the other hand, where the court and the Crown are available, but the defence is not, the period of delay resulting from that unavailability is defence delay (Jordan, at paras. 64-65).

49Calculating how much of that delay will be attributed to defence delay depends on all of the circumstances. In Hanan, the Supreme Court rejected a bright line rule for characterising delay as defence delay where counsel’s availability is a factor. Instead, “all relevant circumstances should be considered to determine how delay should be apportioned among the participants” (Hanan, at para. 9).

50Related to considerations surrounding the apportionment of delay is the Supreme Court’s acknowledgment that, “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” (R. v. Godin, 2009 SCC 26 at para. 23).

51In this case, there are two dates which are relevant to the calculation and apportionment of delay. The first is October 6, 2025, which is the first available trial date that was offered after no judge was available for the originally scheduled September 29, 2025, start date. The second is January 5, 2026, which is the earliest available trial date that was offered around the time that the February 2, 2026, date was set.

The October 6 trial date

52October 6, 2025, is the date which was offered to the defence after no judge was available to start the trial as scheduled on September 29, 2025. What was offered was, in effect, simply a one-week adjournment of the start date of the 2-week trial.

53This date became available on October 2, 2025, two days after the originally scheduled commencement of the trial. The Crown immediately emailed defence counsel seeking their availability to start the trial the following week. Defence counsel did not respond. There is no evidence before me as to why the defence chose to ignore the Crown’s emails attempting to reschedule the trial. It is important to bear in mind that at this time the trial was supposed to be happening, making it particularly egregious that the defence was ignoring the Crown’s emails and attempts to keep the trial on track.

54The matter was set for a 2-week jury trial on the weeks of September 29 and October 6, 2025. Had the trial commenced as originally scheduled on September 29, given that it was a jury trial, counsel would have had to be prepared for the possibility that the trial would spill over into the week of October 13. Given that October 6 was the second week of the originally scheduled trial, the defence had to be available that week, and ought to have had at least some availability the following week. By not responding to the Crown’s email, the defence effectively refused to participate in any effort to keep the trial on track.

55The position now taken by counsel for Mr. Mitchell, who was not counsel at the time, is that the defence was unavailable for the week of October 13, 2025. There is no evidence before me with respect to what the defence’s actual availability was during this time frame. What is clear is that defence counsel had to have been available for the week of October 6 as it was the second week of the scheduled trial and ought to have had at least some availability into the week of October 13, 2025.

56The Crown’s approach was proactive. The defence, on the other hand, ignored the Crown’s initiative. While the defence is not required to hold themselves perpetually available, in the circumstances of this case, having the trial proceed a week later than originally scheduled was a reasonable solution. At a minimum, the defence should have responded to explain what the issue was with the week of October 13. The defence’s failure to respond demonstrates an uncooperative approach that ignores the admonitions of Jordan.

57The next available date for the court, after the October 6 date, was February 2, 2026.

58The court and the Crown were available for trial the weeks of October 6 and October 13, 2025. The defence was unresponsive and apparently somehow not available. At least a portion of the delay occasioned by this is defence delay.

The January 5, 2026 trial date

59After the October dates were lost, the Crown continued to take proactive steps to mitigate the delay by continuing to check for court availability. Shortly after the February 2, 2026, dates were agreed upon, the Crown found court availability on January 5, 2026, and wrote to the defence on October 17, 2025. In the email, the Crown sought defence counsel’s availability for a January 5, 2026, trial and agreement that the trial, now with only one accused, could be completed in 7 days rather than 10. The defence did not respond to any of the Crown’s repeated emails and consequently the January date was not set.

60The court and the Crown were again available for a 7-day trial commencing January 5, 2026. Again, the defence was unresponsive, but this time later stated on the record that counsel was unavailable. The delay from January 5 until February 2, 2026, is defence delay.

The net delay

61The Crown in this case adopted the kind of proactive approach and initiative contemplated in Hanan. After the trial could not be reached on September 29, 2025, the Crown continued to check for court availability. Within days a solution was found, a delayed start of a week. The defence ignored the offered solution.

62When no further dates were available to the court until February of 2026, the Crown continued to take a proactive stance. By mid-October, the Crown had found available court time on January 5, 2026, 4 weeks earlier than the February dates.

63The Crown reached out to the defence to revisit the trial time estimate in light of the co-accused’s anticipated resolution and set the earlier date. Again, the defence chose not to respond or engage with the Crown’s offer of an earlier trial date.

64It is clear that limited court availability also formed a significant part of the circumstances leading to the later trial date of February 2, 2026.

65Following the contextual approach in Hanan, apportioning the entirety of the delay from October 6 until February 2 to the defence would ignore that the court was also not available for a significant portion of this time.

66The court was not available from October 20, 2025, until January 5, 2026. For this reason, I will apportion only the weeks of October 6 and 13, 2025 and January 5 through to February 2, 2026, to defence delay. This makes for a total of 6 weeks of defence delay.

67Given that the total delay was only 11 days over the ceiling, once defence delay of 6 weeks is subtracted, the net delay falls below the Jordan ceiling by a month.

Exceptional circumstances – complex case

68Where, after calculating any defence delay, the net delay exceeds the Jordan ceiling, it falls to the Crown to justify the delay by showing the presence of exceptional circumstances. Exceptional circumstances can take the form of discrete exceptional events, or the case may be one that is particularly complex.

69In this case the Crown relies upon the particular complexity of the proceedings to justify any delay over the presumptive Jordan ceiling.

70Complex cases were defined in Jordan at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

71Where the Crown undertakes a complex prosecution, it also falls to the Crown to develop and follow a plan to minimise the delay occasioned by such complexity.

72This was a project case involving an expansive investigation, voluminous disclosure and numerous accused persons. The Crown took steps to mitigate the inherent delay in such a prosecution. Indictments were preferred, the prosecution split into 13 groups and an order was sought and granted directing that a single Garofoli hearing take place.

73The fact that by the time Mr. Mitchell came to trial the prosecution had significantly streamlined and simplified the case against does not mean that it was not a complex prosecution for the purposes of the Jordan analysis. As recently affirmed by the Ontario Court of Appeal in R. v. Singh, 2025 ONCA 843, at para. 31, the approach to assessing complexity must be both purposive and realistic:

Complexity should not be viewed in isolation at the trial stage. Early-stage complexity – arising from the breadth of disclosure and number of accused in large projects – may justify longer delay even for “minor players” whose individual trials appear more streamlined by the end.

74Much like in Singh, the disclosure in this case was vast, and included over 300 gigabytes of information. There were initially over 50 accused, 22 accused proceeding to trial and 8 different police services involved. The fact that the Crown was ultimately able to streamline the prosecution against Mr. Mitchell does not detract from the complexity of this prosecution.

75The total delay in this case was only 11 days over the ceiling. I have found that there was defence delay which brings the net delay below the ceiling by a month. Even if there were not defence delay, the modest 11 days of delay is justified by the complexity of this project case.

Delay below the ceiling

76Where delay falls below the ceiling the defence may still argue that it is unreasonable. However, the onus is on the defence to demonstrate a clear case of unreasonable delay. In order to do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonable should have, (Jordan, at paras.82-83).

77Neither factor has been established in this case. To the contrary, in failing entirely to respond to the Crown’s attempts to mitigate the delay, the defence demonstrated a lack of interest in taking meaningful steps to expedite the proceedings. Nor can it be said, in considering all of the circumstances of this project prosecution, that the case took markedly longer than it reasonably should have.

CONCLUSION

78The total delay in this case was 11 days over the presumptive ceiling. There is 6 weeks of defence delay which brings the net delay under the Jordan ceiling by a month.

79The defence has not demonstrated that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Throughout the proceedings, the defence was slow in responding to the Crown’s efforts to move the case along. At crucial times, the defence was entirely unresponsive. Not only was defence counsel’s repeated failure to respond unprofessional, it undermined the Crown’s attempts to mitigate the delay occasioned by the unavailability of a trial judge on the first scheduled trial date.

80Nor did this case take markedly longer than it should have.

81This was a large project case involving wiretaps, tracking warrants, GPS and LBS data, numerous accused and vast amounts of disclosure. It was particularly complex. The Crown took reasonable steps to mitigate that complexity and adopted a plan that minimised the delay.

82The Applicant’s right to a trial within a reasonable time was not breached.

The Honourable Justice Newton-Smith

Released: March 6, 2026

CITATION: R. v. Mitchell, 2026 ONSC 1363