R. v. Smith, 2026 ONSC 2935

CITATION: R. v. Smith, 2026 ONSC 2935

COURT FILE NO.: CR-23-5872

DATE: 20260520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Kemar Brandon Smith

Accused/Applicant

Zuzana Szasz, for the Crown/Respondent

Jason E. Bogle, for the Accused/Applicant

HEARD: April 8, 2026

REASONS FOR SUMMARY DISMISSAL OF THE APPLICANT’S SECTION 11(B) APPLICATION

DUBÉ j.:

A. INTRODUCTION AND BACKGROUND

[1] The applicant, Kemar Smith, brings a second application in relation to an alleged breach of his s. 11(b) Charter rights and seeks a stay of proceedings pursuant to s. 24(1). The Crown responds by requesting that the application be summarily dismissed.

[2] I dismissed the applicant’s first s. 11(b) application on February 24, 2025.

[3] The applicant argues that the governing question regarding the Crown’s request to summarily dismiss the applicant’s s. 11(b) application is narrow. The applicant’s motion may be summarily dismissed only if it is manifestly frivolous. Rule 34.02 sets out the threshold, and the Supreme Court has confirmed it is a rigorous one that requires courts to err on the side of caution.

[4] The applicant submits that the s. 11(b) motion does not meet that standard. At minimum, it raises arguable issues about notice, later delay, waiver, attribution of post-verdict delay, and whether any procedural non-compliance should be excused under r. 34.03.

[5] The applicant submits that there is a reasonable basis to believe that any delay beyond the parameters established in my earlier ruling will infringe his rights under s. 11(b) by the scheduled sentencing date of May 20, 2026, and that the application therefore has merit.

[6] The Crown submits that the s. 11(b) application is without merit and fails to comply with the applicable procedural requirements and should therefore be dismissed.

[7] By way of background, on May 26, 2020, Police Constable Misty Medeiros (“PC Medeiros”) of the Windsor Police Service (“WPS”) applied for and was granted three search warrants pursuant to the Controlled Drugs and Substance Act, S.C. 1996, c. 19 (“CDSA”), in the name of Kemar Smith (“the applicant” or “Smith”) to locate and seize items such as cocaine, packaging materials, digital scales, currency, and debt lists at the following locations:

• The residence of Kemar Smith, namely: 2452 Chateau Avenue in Windsor, Ontario;

• The residence of Kemar Smith, namely: 1095 Hickory Road in Windsor, Ontario (upper unit of duplex) (“Hickory residence”); and

• A vehicle, namely, a 2015 red Ford F150 bearing licence plates AY3 5945 (“F150”).

[8] On May 26, 2020, at approximately 2:45 p.m., officers from the Drugs and Guns Unit of the WPS (“DIGS”) executed the CDSA warrants at the places named in the warrants. Smith was located by police in his vehicle a distance from the residence and placed under arrest by PC Lembke and then PC Young for possession for the purpose of trafficking.

[9] A quantity of cash totalling $45 CAD was seized from Smith’s person incident to arrest.

[10] A search of 2452 Chateau Avenue was also conducted, and the following items were seized:

• 105.5 grams of cocaine.

• 20.6 grams of crack cocaine.

• 77 morphine pills (15 milligrams each).

• $3,515 CAD currency.

• Drug paraphernalia including a digital scale, baking soda, packaging material, and a vacuum sealer.

• Ballistic vest.

[11] A search of the F150 resulted in the seizure of the following items:

• 20.6 grams of cocaine (two baggies – 13.8 grams and 6.8 grams)

• Two cell phones.

[12] Nothing of evidentiary value was located by the police in the Hickory residence.

[13] As a result of the arrest and searches, the applicant was charged on a three-count indictment that on May 26, 2020, at the City of Windsor, he possessed cocaine (x 2) and crack cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[14] On January 8, 2025, I found that the warrants authorized to search the F150, and the Chateau and Hickory residences were valid.

[15] On February 24, 2025, I dismissed the applicant’s first s. 11(b) application: see R v. Dupuis et al., 2025 ONSC 1720. I found that, for the purposes of the Jordan analysis, the delay amounted to 25.5 months, calculated to the anticipated then‑last trial date of May 16, 2025.

[16] On November 17, 2025, I found the accused guilty: see R v. Smith, 2025 ONSC 6436

B. RECENT HISTORY OF THE PROCEEDINGS

[17] Drawing largely from my reasons summarily dismissing the applicant’s ss. 7, 9, and 24(1) applications released on November 17, 2025, I noted that the Crown closed its case on June 16, 2025, after the trial commenced on May 12, 2025. The trial was then adjourned to July 21, 2025, tentatively scheduled for defence evidence, if any, and final submissions, time permitting. The previously scheduled continuation date of July 14, 2025, was vacated.

[18] A summary of my endorsement arising from the proceedings on July 21, 2025, is as follows:

a. Mr. Bogle appeared by Zoom from Vietnam, notwithstanding that he was expected to attend in person for the continuation of the trial.

b. The Crown advised that on June 20, 2025, she received an email from Mr. Bogle requesting that a “Wayne Hayden” be subpoenaed – an individual unknown to the Crown. She responded that same day seeking clarification but received no reply from Mr. Bogle.

c. On July 11, 2025, Mr. Bogle emailed a document titled “Factum for Directed Verdict – s. 7, 9 and 24(1), (2) (Unlawful Arrest, Stay of Proceedings)” to both the Court and the Crown. He and his client then appeared in court in person on July 14, 2025, asserting that they believed the trial was scheduled to proceed, despite that date having been vacated on June 16, 2025.

d. The applicant’s factum was never uploaded to Case Centre.

e. Mr. Bogle complained that little could be accomplished on the 21st because the Crown failed to file responding materials to his factum. He appeared to expect the Crown to respond to his July 11, 2025 filing over the weekend, anticipating that the application would be addressed on the next scheduled court date of July 14, 2025.

f. I found Mr. Bogle’s complaint against the Crown to be baseless.

g. I went on to find that: (1) the Motion for a Directed Verdict was improperly combined with a Charter factum; (2) no actual Notice of Charter Application was ever filed; (3) the document that was filed on July 11, 2025, was late filed – for both the July 14 and July 24, 2025 dates; and (4) the filings failed to specify a hearing date or location, contrary to the Criminal Proceeding Rules for the Superior Court (the Rules).

h. I was also troubled by the fact that much of the factual foundation for the Charter relief contradicted findings that I had already made, including, for example, that the applicant alleges that the police acted on potentially invalid warrants – despite my ruling that the warrants were in fact valid.

i. Additionally, the factum lacked either an evidentiary foundation for certain Charter relief – or the evidentiary record proved to be skeletal, confusing, and supported minimally by case law.

j. I was advised by the Crown that the defence had full disclosure regarding the circumstances of what the applicant alleges to be Charter breaches and that to bring such a filing, with inadequate notice, so late in the proceedings – particularly in the absence of new and unexpected evidence arising during the trial – was improper.

k. I eventually found that the Crown had no obligation to file responding materials – but instead, quite properly, reached out to the trial coordinator to schedule a date and seek direction from the court – but Mr. Bogle was unavailable on the date offered – July 18, 2025.

l. I noted that the applicant has a history of late filings and deficient applications, dating back to August 22, 2023 – and I reviewed a summary of that history in court.

m. I concluded by ruling that the Charter factum was non-compliant with the applicable rules, not properly before the Court, and substantively deficient – however I found that the Motion for Directed Verdict could proceed.

n. The defence advised of its intention to call Officer Wayne Bridges (not Wayne Hayden) as a witness. Efforts were made to confirm Officer Bridges’ availability to testify later that afternoon on July 21, 2025. Mr. Bogle, however, advised that he was unable to proceed due to a scheduled flight returning from Vietnam. As a result, I determined that, should the motion for a directed verdict be unsuccessful, I would hear Officer Bridges’ evidence in order to preserve court time.

o. I found in my July 21, 2025 endorsement “that any delay occasioned by the failure by the defence to respond to the Crown’s June 20, 2025, email regarding calling Wayne Hayden as a witness, the late filing of the Charter factum on July 11, 2025 and the resulting inability to proceed today with the accused’s evidence and/or final submissions – which wasted a full day of court time - is solely attributable to the defence.”

p. The trial was then adjourned to July 24, 2025, at 2:00 p.m., for continuation.

[19] On July 24, 2025, at 1:44 p.m., the Crown received the applicant’s factum in support of the motion for a directed verdict – again, late. Oral argument was heard later that day. The court granted the Crown until August 21, 2025, to file responding materials on the motion, and the defence until August 29, 2025, to file any reply.

[20] The Crown filed further written submissions in the form of a factum on August 20, 2025.

[21] On August 27, 2025, instead of receiving the applicant’s reply on the directed verdict motion, the Crown received a further factum, this time advancing an unlawful arrest argument.

[22] On August 28, 2025, I sent the following email to counsel:

The accused alleges that his s. 7, and s. 9 Charter rights were infringed, and seeks a remedy pursuant to s. 24(1) - and filed another factum regarding this on August 27, 2025 (the 1^st was on or about July 14, 2025).

Next week I will advise counsel by email whether the accused’s directed verdict application is granted or dismissed – and will provide my oral reasons for doing so when this matter is up next on September 15, 2025.

In the event that the directed verdict application is dismissed, I remind counsel that the September 15, 2025, court date was scheduled to receive evidence, if any, from the defence, and for final submissions on the trial proper - and both should be prepared to proceed as planned.

Further, I put the accused on notice that the above Charter filing is subject to being summarily dismissed for reasons that include it has no merit - and I will hear submissions on whether I should do so after I provide my directed verdict decision on September 15, 2025.

The filing deadline for written submissions from the defence on whether I should summarily dismiss his filings in relation to the alleged Charter infringements is September 5, 2025, by 4:00 p.m. and September 11, 2025, by 4:00 p.m. for the Crown – there will be no extensions.

[23] On September 5, 2025, instead of receiving written submissions from the defence on whether the s. 7 and s. 9 Charter filing should be summarily dismissed, the Crown received filings titled “Written Submission of the Applicant on Unlawful Arrest”.

[24] On September 15, 2025, I provided my oral reasons underlying why I dismissed the applicant’s motion for a directed verdict on September 8, 2025. On that date, I also heard submissions on whether I ought to summarily dismiss the defence’s s. 7, 9 and 24(1) Charter filing. At that time, I summarily dismissed the defence’s Charter filing, with reasons to follow. On November 17, 2025, I provided my oral reasons for the summary dismissal. In that decision, I stated the following at para. 23:

On August 28, 2025, I advised counsel by email that I intended to address whether the applicant’s August 27, 2025, filing should be summarily dismissed. In response, the applicant submitted “Written Submissions of the Applicant on Unlawful Arrest,” dated September 5, 2025, which contained deficiencies similar to those identified in the August 27 filing. The deficiencies are outlined below.

a. I still have no formal application before the court which identifies the grounds nor the sought-after relief contrary to Rule 6.01(1) and 6.03 of the Rules

b. Assuming I can treat the filings as an application, which I do not, the filings were served late contrary to the Rule 6.05(1) of the Rules.

i. On July 24, 2025, I dismissed the applicant’s July 11, 2025, filing because it was late filed and deficient. (dated only 3 days before the vacated July 14, 2025, court date and 13 days before the July 24, 2025, court date).

ii. The August 27, 2025, filing is also late filed, it is dated only 19 days before the next scheduled date on September 15, 2025.

c. The filings again failed to specify a hearing date or location, contrary to Rule 6.03 of the Rules nor did it have a proper application record served in support of the filing as per Rule 6.05(2) of the Rules– i.e. no list of trial transcripts, nor reference therein to a witness’ evidence.

d. Although technically not brought mid-trial, the filings were submitted only after the Crown had closed its case, thereby causing prejudice to the Crown’s ability to anticipate and respond to the Charter issues - specifically, in relation to the allegation of unlawful arrest. These alleged breaches were not raised in response to new evidence emerging during trial; rather, it appears that they were introduced strategically, to limit the Crown’s opportunity to anticipate and then address the allegations by way of evidence.

e. The applicant has consistently submitted late and deficient filings throughout these proceedings. The most recent filings were also untimely and have contributed to significant delays in bringing this matter to a timely conclusion. This case has been before the Superior Court of Justice for over two years, and the charges are now more than five years old.

f. The applicant’s two most recent Charter filings, like the one dated July 11, 2025, are without merit. I say so for the following reasons:

i. The applicant’s Charter filings are unclear and not well developed. The one claim under section 9 appears to be that the applicant was unlawfully and arbitrarily arrested by PC Lembke and PC Young. However, the evidence establishes that both officers attended a pre-arrest briefing and, along with other DIGS officers, were provided with grounds to arrest the applicant for possession for the purpose of trafficking, as outlined by PC Medeiros. These grounds were based on the broader investigation, which led to the issuance of multiple search warrants — ultimately upheld as valid by this Court on January 8, 2025. The fact that PC Lembke effected the arrest without direct instruction from PC Medeiros, or that the applicant was arrested twice, does not affect the lawfulness of the arrest. The applicant has not cited any legal authority to support a contrary position – likely because non exists.

ii. In addition to the above, the applicant claims in his August 27 and September 5, 2025, filings that his s. 9 Charter right was also breached because the “warrant (sic) may have been issued on flawed grounds,” (September 5, 2025) or based on “potentially invalid warrants,” (August 27, 2025) – as indicated, all warrants were subsequently ruled valid.

iii. The applicant alleges a breach of section 7 of the Charter; however, the basis for this claim is again unclear and/or not well developed – although it appears to be based on allege police misconduct.

iv. The applicant complains about a management warrant to preserve the F150 on June 8, 2022, and that the Crown failed to establish when the accused was lodged in custody – but called no evidence and provided no case law to develop either of these areas further. In relation to both issues, the applicant relies on documents that were not admitted as evidence on this trial. Finally, I am unsure how these issues are relevant on this application.

[25] Further, in my reasons on November 17, 2025, at para. 24, I concluded as follows:

For all the foregoing reasons—including the applicant’s repeated late and unmeritorious filings, failure to comply with the Rules, and filings that lack merit or a reasonable prospect of success—I am satisfied that the test set out in Haevischer is met.

Accordingly, I find that the applicant’s filings, which appear to serve no real purpose other than to delay and disrupt these proceedings, are hereby summarily dismissed as manifestly frivolous.

[26] On November 17, 2025, I found the applicant guilty on all counts. A sentencing hearing was initially scheduled at the November 28, 2025 assignment court for February 11, 2026. On February 10, 2026, the applicant filed – on a late basis – both an application to adjourn the sentencing hearing and the s. 11(b) application. On February 11, 2026, both matters were adjourned to April 8, 2026, for a full day hearing. The Crown also advised that it would be seeking summary dismissal of the applicant’s s. 11(b) application.

[27] On March 25, 2026, Mr. Bogle advised the Crown by email that he would be seeking to adjourn the sentencing hearing set for April 8, 2026, for the purpose of calling evidence pursuant to R. v. Morris, 2021 ONCA 680. In that correspondence, Mr. Bogle stated that he “will not be proceeding with submissions on that date”, a position taken without first obtaining the Court’s permission. Although the accused identifies as being “mixed culturally” – I will nonetheless refer to this evidence as Morris Evidence.

[28] On April 2, 2026, the Crown – not the applicant – brought the matter before me to address the status of the sentencing hearing. I ultimately determined that both the Crown’s application for summary dismissal and the sentencing hearing would proceed, subject to further submissions on that date.

[29] Despite my finding the applicant guilty in mid‑November 2025, Mr. Bogle advised the court on April 8, 2026, that he first contacted the proposed expert in relation to the Morris Evidence, Dr. Sibblis, in January 2026, although he apparently contacted another potential expert in December 2025. The discussion I had with Mr. Bogle concerning the Morris Evidence on February 11, 2026, as reflected in my endorsement, was as follows:

Mr. Bogle advised today that he retained the proposed Morris report’s author on December 23, 2025, and that on February 9, 2026, he was informed the report would not be ready for the scheduled hearing, nor likely during the month of February. Despite this knowledge, he did not advise either the Crown or the Court of the delay, the need for additional time, or the need to seek a new sentencing date until late yesterday afternoon.

[30] I was further advised that Dr. Sibblis only recently conducted the applicant’s intake on March 20, 2026. Mr. Bogle had previously advised that Dr. Sibblis was unavailable throughout the month of February 2026 due to her schedule.

[31] It was not until the day before the April 8, 2026, sentencing hearing that the applicant provided the Crown with the curriculum vitae of Dr. Sibblis, contrary to the Rules, notwithstanding that the document had been available to the applicant well in advance. In addition, no intake notes prepared by Dr. Sibblis in relation to the applicant were ever disclosed to the Crown.

[32] Submissions on the summary dismissal application were completed, and evidence –including testimony from the applicant and Dr. Sibblis – was heard at the sentencing hearing. Counsel’s submissions on sentencing were made and largely completed. Dr. Sibblis advised on that date that preparation of an enhanced Morris report in this case would require an additional approximately five months. In lieu of that, Dr. Sibblis agreed to prepare a brief Morris report, to be completed within approximately one month.

[33] The matter was subsequently adjourned to May 20, 2026, for brief further submissions in relation to the Morris Evidence and my decision on the summary dismissal application and the applicant’s sentence.

C. THE LAW

[34] The Court has the power under r. 34.02 of the Ontario Superior Court of Justice Criminal Proceeding Rules (the “Rules”) to summarily dismiss an application. The rule provides the presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

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

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

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

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

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

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

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

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

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

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

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

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

[36] S.A.Q. Akhtar J. set out the test for summary dismissal in R. v. M.J., 2024 ONSC 138 at paras. 10 to 12:

The test set out in Haevischer decrees that an application in a criminal proceeding should only be summarily dismissed if it is manifestly frivolous. The principles underlying summary dismissal are based on the twin values of trial efficiency and trial fairness. Efficiency promotes the use of judicial resources to ensure there is no unreasonable delay and that trials are completed within a reasonable period of time. Fairness protects the right of an accused to make full answer and defence which summary dismissal may impair: Haevischer, at para. 2.

The Court in Haevischer held that a rigorous threshold should be applied in such motions to promote these values. It emphasised that judges should err on the side of caution when asked to summarily dismiss an application and explained that “manifestly frivolous” means that courts must weed out applications that will necessarily fail and that their frivolous nature must be obvious: at para. 69.

The application of such a rigorous threshold permits trial judges to stave off applications that the summary dismissal power is “designed to exclude” – applications that would never succeed and waste court time: at para. 3. At the same time, an accused’s fair trial rights would be protected by deciding all other claims on their merits.

See also R v. Greer, 2020 ONCA 795, at paras. 107 to 115.

[37] Further, in relation to applications brought mid-trial, the Ontario Court of Appeal had this to say in R v. Thombs, 2023 ONCA 850, at paras. 12 to 13:

The discretion afforded a trial judge to hear a mid-trial Charter application over the admissibility of evidence is broad, as is the deference afforded to trial judges in exercising this discretion: R. v. Haevischer, 2023 SCC 11, at paras. 72, 104; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 152.

Courts have recognized a number of factors as relevant to the exercise of this discretion, including the reasons for, and degree of, the lack of compliance with the rules of the court; the prejudice, if any, to the Crown; the degree of disruption to the proceedings; the history of the litigation; the merits or absence of any real indication of a prospect of success on the application; and, justice and fairness to all parties: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 112; Megill, at paras. 157-8. The trial judge referred to some, but not all, of these factors in her reasons for concluding that the application should not be heard.

D. ANALYSIS

[38] Given the history of these proceedings, I will limit my reasons to only those necessary to explain why the applicant’s s. 11(b) application should be summarily dismissed.

[39] To begin, and consistent with his past practice, the applicant served the s. 11(b) application on a late basis, together with an application to adjourn, on the day before the sentencing hearing originally scheduled for February 11, 2026. My endorsement of February 11, 2026, states the following:

On February 10, 2026, at 4:25 p.m., the Court received a further email from Mr. Bogle’s office attaching a s. 11(b) application and supporting materials. Although the issue of delay had been raised at the November 28, 2025, AC - when the sentencing hearing was scheduled - and although Mr. Bogle advised today that he received instructions from his client on that date to pursue a delay application, he nonetheless failed to contact Trial Coordination or the Crown to advise that a formal s. 11(b) application would be brought, nor did he attempt to schedule a s. 11(b) JPT as soon as practicable.

In addition to the defence conduct arguably breaching the s. 11(b) protocol and the Criminal Procedure Rules applicable in the Superior Court of Justice, there also appears to be potential issues concerning the substantive merits of the proposed application. As a result, the Crown advised that it intends to bring a summary dismissal application. Despite Mr. Bogle’s opposition, I agreed with the Crown’s position, and a new date and timetable were set for the summary dismissal application, as outlined below.

[40] Although this is the applicant’s second s. 11(b) application, brought after the conclusion of the trial and my finding of guilt, I find that the Consolidated Provincial Practice Direction for Criminal Proceedings (the “s. 11(b) Protocol”) applies, with such modifications as are necessary to reflect that the application was advanced post‑trial and post‑verdict.

[41] As a result of the late filing, the applicant breached several requirements of the s. 11(b) Protocol. As noted above, the applicant crystallized his intention to bring this s. 11(b) application after the assignment court on November 25, 2025. However, contrary to the Protocol, he failed to provide written notice of the forthcoming application to the Crown and the Superior Court Trial Coordinator and failed to arrange a s. 11(b) pre‑trial conference as soon as practicable.

[42] Instead, the applicant first notified the Crown and the court of the application on the eve of the sentencing hearing, more than two and a half months after written notice should have been provided at or about the time of the assignment court. Contrary to the Protocol, the applicant also failed to obtain a hearing date and to consult with the Crown to canvass availability and time estimates for same before filing the application. These breaches are particularly notable given that the applicant had gone through the s. 11(b) Protocol only approximately one year earlier in connection with his first delay application.

[43] An oral remark by counsel for the applicant during assignment court before another justice – stating, for the first and only time prior to formally filing the application on February 10, 2026, that “…I was inquiring why there are no dates available for the record as s. 11(b) is still an issue for the balance of the year” – falls well short of the written notice required to satisfy the s. 11(b) Protocol.

[44] The late filing of the application also breached the Rules, including r. 6.03(a), in that it failed to specify a hearing date. Instead, the application was filed on the eve of the sentencing hearing, with the apparent intention that the s. 11(b) application be scheduled for a future hearing, thereby further delaying the proceedings. This matter has been before the Superior Court of Justice for almost three years, and the charges are now approaching six years in age.

[45] While the applicant’s failure to comply with the Rules and the s. 11(b) Protocol –particularly in light of the extensive history of non‑compliance in this proceeding – is, on its own, sufficient to justify refusing leave under r. 34.03 to entertain the s. 11(b) application and to grant the Crown’s request for summary dismissal, I am also satisfied that, pursuant to r. 34.02 and having regard to the factors articulated in R. v. Thombs, the application discloses no reasonable prospect of success in any event.

[46] I found the applicant guilty on November 17, 2025. The sentencing phase of these proceedings therefore runs from that date to the anticipated sentencing date of May 20, 2026.

[47] As it relates to calculating delay post-conviction, Doherty J.A. said this in R. v. Charley, 2019 ONCA 726, at para. 3:

The application of the Jordan analysis to post-verdict delay is an open question in this court. For the reasons that follow, I would hold that while the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, should be assessed separately from pre-verdict delay and should be subject to its own presumptive ceiling. I would fix that ceiling at five months.

[48] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada addressed the framework for assessing unreasonable delay under s. 11(b) of the Charter. At paragraph 91, the Court stated:

Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has [page672] been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92).

[49] Turning to the merits of the s. 11(b) application, in my decision of February 24, 2025, dismissing the applicant’s first s. 11(b) application, I found that the delay for the purposes of the Jordan analysis amounted to 25.5 months, calculated as of the then‑anticipated final trial date of May 16, 2025. This placed the presumptive Jordan ceiling at approximately early October 2025.

[50] I further note that, following the commencement of the trial, I identified discrete periods of delay that were solely attributable to the applicant. These included delays from at least mid‑July to mid‑September 2025, as well as delay expressly waived by the applicant between February 10 and April 8, 2026. Beyond these defined periods, I nonetheless find that the applicant’s ongoing behaviour, when viewed cumulatively, served to only further and unnecessarily prolong the proceedings during the course of these proceedings.

[51] When the applicant’s failure to comply with the Rules and the s. 11(b) Protocol is considered together with his well‑documented history of ongoing behaviour contributing to delay –including repeated late, incomplete, and deficient filings; unmeritorious applications; the calling of an unnecessary witness (Officer Wayne Bridges); and conduct that on several occasions prejudiced the Crown’s ability to properly prepare its case at multiple stages of the proceeding (mostly related to late filings – including producing Dr. Sibblis’ report, dated May 8, 2026 –on the day before the May 20, 2026 sentencing date) – it becomes clear that the applicant has been a significant source of delay. Most concerning is the applicant’s ongoing behaviour which, under the ostensible objective of seeking a sentencing date within a reasonable period of time, instead deliberately and repeatedly contributed to delay while the matter was before the Superior Court of Justice.

[52] Accordingly, based on the totality of the evidence, and stepping back from the minutiae to adopt a contextual, bird’s‑eye view of the proceedings rather than parsing each day or month, I find no merit in the applicant’s claim that his rights under s. 11(b) of the Charter have been infringed.

E. CONCLUSION

[53] For all the foregoing reasons – including the applicant’s repeatedly late and unmeritorious filings, failure to comply with the Rules, ongoing conduct designed to cause delay in the proceedings and the lack of merit or a reasonable prospect of success with respect to this latest s. 11(b) application, I am satisfied that the test set out in Haevischer is met.

54Accordingly, I find that the applicant’s s. 11(b) application is hereby summarily dismissed as manifestly frivolous.

Brian D. Dubé

Justice

Released: May 20, 2026

CITATION: R. v. Smith, 2026 ONSC 2935

COURT FILE NO.: CR-23-5872

DATE: 20260520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Kemar Brandon Smith

Accused/Applicant

reasons for summary dismissal of the applicant’s section 11(b) application

Dubé J.