His Majesty the King v. Christoper Gunkel
CITATION: R. v. Gunkel, 2026 ONSC 2966
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HIS MAJESTY THE KING v. CHRISTOPER GUNKEL
BEFORE: Justice I.F. Leach
COUNSEL: J. Melo, for the Crown J. Cacciavillani, for the Accused
HEARD: May 19, 2026
ENDORSEMENT
1This endorsement addresses an application by the accused, Mr Gunkel, for adjournment of the “judge alone” trial of this matter currently scheduled to commence in Woodstock on June 8, 2026, with a trial duration estimate of five days. That adjournment request is opposed by the Crown.
Further background
2The nature and history of developments leading up to the accused’s adjournment request generally were not in dispute, and may be summarized as follows:
a. The underlying indictment herein charges Mr Gunkel with twelve very serious offences; i.e., five counts of sexual assault contrary to section 271 of the Criminal Code, (“the Code”), five counts of sexual interference contrary to section 151 of the Code, and two counts of invitation to sexual touching contrary to section 152 of the Code.
b. The charges involve two complainants, and allege that the underlying misconduct took place within specified date ranges in 2015, 2020 and 2022. The first-named complainant, (currently 19), alleges that she was victimized by Mr Gunkel between the ages of eight and fourteen. The second-named complainant, (currently fifteen), alleges that she was victimized by Mr Gunkel between the ages of five and eleven.
c. The original underlying information was sworn on September 27, 2023, (i.e., approximately 32 months ago), leading to the accused’s arrest and release from custody the same day.
d. After the taking of some further steps while the matter was before the Ontario Court of Justice, (e.g., a defence disclosure request made on November 23, 2023, the scheduling of a Crown pre-trial for March 1, 2023, rescheduling of that Crown pretrial at the request of the defence, completion of that Crown pretrial on April 5, 2023, completion of a judicial pretrial with judicial discussion and approval of preliminary inquiry issue and procedures on April 18, 2023, and the scheduling of a preliminary hearing for September 19, 2024), defence counsel confirmed the receipt of updated instructions to waive the Ontario Court of Justice charges directly to the Superior Court of Justice for trial before a judge and jury.
e. The matter made its first appearance in the Superior Court of Justice, (i.e., at a Woodstock Assignment Court held on September 12, 2024), at which time a judicial pretrial was scheduled for December 12, 2024, and trial dates were set for the Woodstock trial sittings in June of 2026. Although the Crown had attempted to set earlier trial dates, (as there was trial time available during sittings earlier than June of 2026), the trial was scheduled for June of 2026 to accommodate a pretrial records application then being contemplated by the defence.
f. On or about August 14, 2025, the accused re-elected to be tried in this court by a judge sitting without a jury.
g. On or about October 23, 2025, the defence formally abandoned pursuit of its contemplated pre-trial records application, and the dates previously reserved for hearing of that application, (in November of 2025), were vacated accordingly.
h. On March 14, 2026, the defence asked Crown counsel to consider the possibility of a defence re-election to trial in the Ontario Court of Justice, on consent, and accompanied by a corresponding s.11(b) waiver from the defence, with a view to having trial of the matter completed in the Ontario Court of Justice in June of 2026. Crown counsel felt obliged to decline that request, having regard to a number of indicated concerns regarding the age of the matter, the potential impact on the complainants, and the potential impact on the quality of evidence and memory of the Crown’s witnesses; i.e., in the event of possible further delay resulting from the request. Crown counsel also confirmed its “triaged” intention to prioritize completion of the scheduled trial of this matter during the Woodstock trial sittings of this court in June of 2026; i.e., by asking to have this matter, (one of three criminal matters scheduled for that trial sittings), called to trial first.
i. On May 7, 2026, the defence requested an adjournment of the trial from its scheduled hearing during the Woodstock trial sittings in June of 2026, owing to indicated health concerns/complications being experienced by Mr Gunkel, described in further detail below.
j. To date, Mr Gunkel has remained out of custody since his release from custody on September 27, 2023.
Proffered reasons for adjournment request and party positions
3In the written material filed in support of that adjournment request, (supplemented by viva voce testimony provided by Mr Gunkel when hearing of the adjournment application proceeded before me in person on May 19, 2026, at which time Mr Gunkel was examined by defence counsel and cross-examined by Crown counsel), the following developments and concerns were indicated and emphasized by the defence:
a. Starting in March of this year, Mr Gunkel began experiencing serious and ongoing dental and jaw-related medical issues. In particular:
i. As a result of confirmed genetic gum disease, many of Mr Gunkel’s teeth became very unstable and painful, (e.g., including deep nerve sensitivity responding to changes in temperature), requiring their removal.
ii. Between March of 2026 and April of 2026, (i.e., during the period leading up to my hearing of the adjournment application), removal of eight of Mr Gunkel’s teeth had been required. At the time of the hearing before me, removal of at least three to four additional teeth was contemplated; e.g., with the removal of at least one or two additional teeth having been scheduled for the day after the hearing before me, with a further tooth extraction appointment to be scheduled thereafter.
iii. In the meantime, in addition to the pain normally accompanying such procedures, Mr Gunkel also has been experiencing very painful additional adverse reactions to such tooth extraction. In particular:
The removal of Mr Gunkel’s teeth has resulted in exposed areas of his jawbone which have reacted to such bone damage or loss, (i.e., in the areas where his jawbone previously connected with his removed teeth), by a healing process which has become complicated owing to the abnormal growth of multiple bone spurs or spicules; i.e., tiny and sharp bone fragment protrusions which have been developing/emerging in the affected areas.
As emphasized in the written material filed by the defence and Mr Gunkel’s oral testimony, such bone spurs have continued to grow through his gums and into his mouth, causing him significant and ongoing pain; pain which effectively extends beyond his general tooth and jawbone pain to repeated and ongoing laceration of his tongue whenever it moves; i.e., as the bone spurs have been growing inwards towards his tongue. In the result, there has been a significant impact on his ability to eat and/or talk without experiencing significant and very distracting pain, all of which also has affected his ability to focus, concentrate or sleep. In that regard:
a. Mr Gunkel testified that his current condition makes it difficult for him to speak for prolonged periods of time, which in turn has made it difficult for him to communicate effectively.
b. Mr Gunkel also described being in constant pain, throughout the day and night; i.e., including frequent waking and general sleep disruption because of such pain. He also frequently requires prolonged periods of rest to manage his pain.
c. More generally, Mr Gunkel finds it very difficult to focus on anything but his pain, which has resulted in corresponding problems with concentration, focus and forgetfulness.
d. While he has received prescription medication in the way of antibiotics, (in an effort to reduce the risk of infection), Mr Gunkel admittedly has not yet been prescribed any medication specifically intended to address the pain he is experiencing as a result of his dental problems. To date, he instead has been instructed by his regular dentist to use “over the counter” pain medications, (e.g., Tylenol and Advil), to “take the edge off” the pain associated with his dental problems. He does so every four hours, but finds that any corresponding pain relief is “not holding”. In that regard, I nevertheless also think it noteworthy that Mr Gunkel, during the onset of his dental problems, already was taking prescription medication, (i.e., Gabapentin), to address his collateral back pain issues stemming from deteriorating disk issues that have rendered him unable to work and on long term disability since September of 2023. In the circumstances, it seems unsurprising that his regular treating dentist, Dr Darren Rodriguez, may have refrained, to date, from prescribing additional prescription pain medication.
- While some of the bone spurs afflicting Mr Gunkel have fallen out on their own, others have become sufficiently painful that Mr Gunkel has resorted to physically pulling them out on his own, with a number of those removed bone spurs being presented as photographed and physical evidence during the hearing before me; i.e., to assist in understanding their size and nature.
iv. Mr Gunkel’s current condition and complications have become sufficiently pronounced that Dr Rodriguez has felt it necessary/advisable to refer Mr Gunkel to a specialist to address the possible need for surgical intervention to rectify the complications Mr Gunkel is experiencing. A surgical consultation with an appropriate specialist now has been scheduled for June 4, 2026, (i.e., four days before commencement of the trial as currently scheduled), to determine next steps in relation to such matters. In that regard:
As emphasized by Crown counsel, a formal and final determination of whether such surgery will be required inherently lies beyond the scope of the professional qualifications of Dr Rodriguez; i.e., the reason why a surgical consultation with an oral surgeon specialist in that regard is required. In other words, the need for such surgical intervention is not yet a professionally confirmed certainty.
Having said that, Mr Gunkel was adamant that Dr Rodriguez informally has indicated that the need for such surgery seems likely, (i.e., based on his experience), which was the reason for the referral to an appropriate oral surgeon specialist. Based on those informal discussions, Mr Gunkel also expects to receive, during his attendance with the specialist on June 4, 2026:
a. formal confirmation that he requires jawbone surgery to address and rectify his bone spur issues;
b. the date or dates on which that required surgery may be performed; and
c. an indication that the surgery likely will need to occur shortly after that consultation, based on the medical urgency of Mr Gunkel’s condition.1
b. In the circumstances, Mr Gunkel believes he would be unable to participate meaningfully in his trial if it proceeds as currently scheduled for the Woodstock trial sittings commencing on June 8, 2026. Specifically, he does not feel capable of maintaining his focus throughout the trial process, properly instruct his counsel, or otherwise participate in his defence; e.g., by testifying properly if/as necessary. As indicated and emphasized during cross-examination, he definitely does not think he could fully focus on what was being said and/or what he was being told or asked during a trial, “especially [over] a week straight”.
c. Such concerns were echoed in the course of oral submissions from defence counsel, emphasizing the seriousness of the underlying allegations against Mr Gunkel, the need for Mr Gunkel to focus on what is being said and provide defence counsel with ongoing interactive instructions, (e.g., to address details of the testimony to be provided by the two complainants as those precise details unfolded), and significant apprehension and disquiet about the ability of Mr Gunkel to testify adequately on his own behalf, (if he chooses to do so), and/or to concentrate properly and respond sufficiently during the course of any ensuing cross-examination. In that regard, it was emphasized that Mr Gunkel’s condition was not stable but almost certainly likely to deteriorate even further prior to the currently scheduled trial; i.e., given the imminent extraction of more teeth, and barring any active intervention, (such as oral surgery), to address and ameliorate his condition. Given such realities, and the indicated risks of infection, it was said that forcing Mr Gunkel onto trial the week of June 8, 2026, and thereby interfering with his ability to obtain urgent corrective oral surgery, (if that was the expected recommendation on June 4, 2026), unreasonably would subject Mr Gunkel to avoidable further health complications.
d. In the result, the defence was requesting an adjournment of the current trial dates, accompanied by a corresponding express waiver of any concerns relating to s.11(b) of the Canadian Charter of Rights and Freedoms, (i.e., “the Charter”), in relation to any delay necessitated between the currently scheduled trial dates in June of 2026 and the time of trial. In that regard, defence counsel also indicated a general ability to participate in a rescheduled trial of this matter during the September 2026 or November 2026 trial sittings in Woodstock, (with the Woodstock trial coordinator having indicated that it would be possible to have this matter traversed to and heard during either of those sittings),2 albeit subject to the matter not proceeding on certain specified dates within those sittings on which defence counsel had scheduled court obligations elsewhere. There was no suggestion that Crown counsel in Woodstock would be unavailable or unable to proceed with trial of the matter during either sitting, in addition to the other matters already on those trial lists.
e. It was conceded that adjournment of the currently scheduled trial dates in September of 2026 would be unfortunate for reasons including but not limited to the described adverse impact on the two young complainants and their families. In particular, the Crown has been provided with information indicating that both complainants have been experiencing significant stress waiting for the trial to proceed as scheduled, with steps having been taken by the complainants and their families to prepare accordingly, both emotionally and in terms of arrangements to ensure availability for trial that did not conflict with other obligations; obligations that included the academic examination schedule of the first named complainant. However, defence counsel emphasized Mr Gunkel’s right to a fair trial, as guaranteed by sections 7 and 11(d) of the Charter, as well as the benefit to all concerned of ensuring that the matter was addressed properly and with finality when it was called for trial. In that regard, it was noted that the complainants, as much as the accused, had an interest in avoiding any potential mistrial or appeal proceedings that would prolong finality and/or possibly result in the complainants having to testify more than once.
4As noted above, Crown counsel opposed the accused’s adjournment application, relying on written responding material which, inter alia, outlined information that had been provided to the Crown by the complainants and their families through a representative of the Children’s Aid Society of Oxford County and Dr Rodriguez.3 Based on that information, and answers provided by Mr Gunkel during Crown counsel’s cross-examination during the application hearing before me, Crown counsel emphasized considerations that included the following:
a. As noted above, the Crown has concerns about the detrimental impact of further delay on the memory of its witnesses and the quality of their evidence; e.g., having regard to the historical nature of the complainants’ underlying allegations, and the inherent risks of deterioration of memories over time, with corresponding diminished reliability of recollection and the ability of Crown witnesses to present a full and fair narrative of relevant events.
b. The real and immediate emotional and psychological impact on the complainants and their families, inevitably flowing from adjournment of the long-scheduled trial dates, was also underscored by the Crown. In that regard, it was noted that the complainants and their families had not only been experiencing ongoing general stress as a result of the delay in bringing this matter to trial, but there have been particular detrimental associated impacts in terms of one of the complainants missing school. Moreover, all of that stress was likely to be compounded by any need to revisit the significant logistical arrangements and accommodations that had been put in place, (e.g., including steps taken to plan/schedule work obligations, school assignments and examinations around the currently scheduled trial), in order to ensure the ability of the complainants and their families to attend trial of this matter at the June 2026 trial sitting in Woodstock. Requiring further reorganization of those already disruptive arrangements, at this point, was destined to prolong the stress and uncertainty being experienced by the complainants and their families, and “deepen the emotional strain associated with these proceedings”.
c. In addition to the above, Crown counsel also stressed the importance of the public’s interest in the proper administration of justice, and suggested that granting any adjournment in the present circumstances would signal that the progress of long-scheduled trials can be too easily derailed by medical concerns characterized as “speculative and uncertain”, in turn undermining confidence in the ability of our system of justice to try cases such as this, (i.e., involving youthful or child complainants), in a “timely and orderly way” that minimized unnecessary delay.
d. In addition to characterizing Mr Gunkel’s medical issues as “speculative and uncertain”, (at least insofar as his need for oral surgery is concerned), it was argued by Crown counsel that such issues were overstated, not urgent and/or insufficiently supported by the available evidence. Without limiting the generality of the foregoing:
i. Crown counsel noted and emphasized relayed comments made by Dr Rodriguez, opining that the healing complications being experienced by Mr Gunkel after his tooth extractions, (e.g., his development of exposed bone areas), were “attributed in part” to Mr Gunkel being a smoker, which impairs the mouth’s ability to heal; a concern which Dr Rodriguez apparently had conveyed to Mr Gunkel. The implicit if not explicit suggestion by Crown counsel was that Mr Gunkel was to some extent responsible for his current condition and associated pain; i.e., that the accused effectively was relying on an outcome promoted by his own irresponsible conduct to support his request for an adjournment. In cross-examination, however, Mr Gunkel described a more detailed and nuanced discussion of such matters with Dr Rodriguez. In particular:
While Dr Rodriguez initially may have indicated that Mr Gunkel’s smoking may have affected his healing, that was said to have been based on a mistaken understanding that Mr Gunkel was a “heavy smoker”; a misunderstanding which Mr Gunkel was said to have corrected by clarifying that he smoked “only four or five” cigarettes a day.
Dr Rodriguez was said to have indicated in no uncertain terms that, regardless of smoking, the primary reason for Mr Gunkel’s healing complications was the extraction of so many teeth in such a relatively short span of time, such that the Crown’s suggestion of smoking being the principal cause of Mr Gunkel’s current difficulties was “not true at all”.
ii. Crown counsel also emphasized the relayed indication by Dr Rodriguez that, while Mr Gunkel’s condition is “uncomfortable”, it “should not significantly impair [his] ability to carry out normal daily activities”.
iii. It was suggested that, if Mr Gunkel’s pain was reasonably expected to be significant, he likely would have been prescribed prescription pain medication instead of being limited to “over the counter” pain medications – although I note that Dr Rodriguez apparently did not discuss and/or was not asked to discuss such matters during his provision of information to the Crown.
iv. It was noted that Mr Gunkel obviously had been able to instruct his counsel in relation to the adjournment request, that defence counsel’s ability to prepare and deliver written material and submissions in that regard had not been noticeably impaired by Mr Gunkel’s described health complications and challenges, and that Mr Gunkel himself demonstrably had been able to attend and provide oral testimony during the course of the hearing before me to address the accused’s adjournment application.
General principles and considerations
5A review of caselaw addressing such adjournment requests and fair trial stay applications makes it clear that the reasons for such requests/applications can vary considerably, and that such issues are decided in large measure by the relevant underlying circumstances.
6However, general principles and considerations noted in that caselaw include the following:
a. A long line of authority has held that the power to grant or refuse an adjournment is discretionary. However, the trial judge must exercise that discretion judicially; i.e., in accordance with proper legal principles, and after considering and weighing the relevant circumstances of the particular case.4
b. Such circumstances vary in terms of relevance and importance, but essentially turn primarily on the consequences of granting or denying the adjournment request.5 Particular considerations in that regard have included the following:
i. The proffered reasons for the adjournment request are obviously important, as are the gravity of the charged offences, the custodial status of the accused, and whether or not there have been any previous adjournments.6
ii. Courts will consider party diligence leading to the application for an adjournment and its timing; e.g., if an adjournment is requested only shortly before a scheduled trial date, and such an eleventh-hour adjournment will not allow substantial court time to be reallocated effectively in a context where judicial resources and court time are limited. In that regard, the public has an interest in the orderly administration of justice without unnecessary waste of publicly funded resources.7
iii. Courts also should be mindful of society benefitting from a reasonably prompt trial on the merits, while respecting the fundamental principles of justice. In particular, witness memories inherently fade over time, such that the search for truth becomes more difficult.8
iv. More generally, there is also a public interest in the orderly and expeditious administration of justice, and regard should be had to serious problems associated with court congestion that frequently causes inordinate delay in processing criminal cases; a consideration that makes courts understandably reluctant to grant adjournments of cases that have taken a long time to reach the trial stage. On the other hand, the rights of the accused must be considered when a case is called to trial for the first time.9
v. The rights of the accused obviously include a right to a fair trial, guaranteed by ss.7 and 11(d) of the Charter, and the trial judge has a duty to see that an accused has such a fair trial.10 However:
What sections 7 and 11(d) of the Charter require is not only fairness to the accused, but “fair play” and the maintenance of the integrity of the judicial process, as well as a “proper opportunity” for the accused to make full answer and defence.11
Breach of an accused’s right to a fair trial owing to mental and/or physical conditions is nevertheless not established on a balance of probabilities by simple demonstration that health concerns may prejudice an accused’s ability to make full answer or defence, or prevent an accused from “meaningful” and/or “full” participation in a trial. That is not the test. Sadly, many accused persons appearing in our courts live with realities which interfere to some extent with their ability to fully and meaningfully participate in their trials, whether it be financial realities, addiction issues, lifestyle concerns, unfamiliar terminology, cognition-affecting prescription medication, physical disabilities, or complexity of the law itself.12 While an accused’s condition may evoke sympathy, such sympathy, (as understandable as it may), cannot fill gaps in meeting the required legal standard for establishing, on a balance of probabilities, a breach or threatened breach of an accused’s right to a fair trial.13
Rather, the proper test for determining when mental and/or physical conditions will breach the right to a fair trial under ss.7 and 11(d) of the Charter turns on whether an accused has established, on a balance of probabilities, that the accused is being required to stand trial when:
a. the accused’s mental or physical health prevents the accused from adequately defending himself or herself as a result of not being able to:
i. understand the nature or object of the proceedings and the possible consequences of the proceedings;
ii. adequately communicate with his or her counsel; or
iii. testify when necessary; or
b. the trial process itself would seriously impair the accused’s health.14
vi. The length of a requested adjournment and its impact on others nevertheless are also important considerations.15 For example, although a particular accused may not be detained in custody pending trial, and offer to waive his or her s.11(b) rights under the Charter, such a waiver does not account for the potentially significant impact of delay on a complainant alleging sexual abuse, (particularly a young and vulnerable complainant), who would be told shortly before a scheduled trial that commencement of the trial will be delayed for a length period of time. While there is a general need to avoid unnecessary delay in any case, lengthy and avoidable delays also understandably may dissuade victims from reporting such crimes.16
Assessment
7There clearly is no ideal solution to the presented situation; i.e., as granting or refusing the requested adjournment of this matter from the scheduled June 2026 trial sitting in Woodstock will result in prejudice in one form or another.
8On balance, having regard to all the circumstances, and the considerations noted above in particular, I nevertheless find that the accused’s adjournment request should be granted. My reasons in that regard include the following:
a. The presented evidence indicates that the underlying reasons for the adjournment request, (i.e., onset of the accused’s dental problems and resulting health complications), are recent developments. There was also no suggestion that the defence did not move with reasonable diligence to seek an adjournment in the wake of those recent developments.
b. Although the accused’s adjournment request comes a relatively short time before his scheduled trial, the presented evidence makes it clear that granting of the adjournment will not result in any unnecessary waste of court resources. In particular, three criminal matters were scheduled for the Woodstock trial sittings in June 2026, with a deliberate view to ensuring that the trial time allocated to Woodstock during those sittings would be fully used if one of those matters happened to resolve or otherwise “go down” for any reason. The other two matters on the trial list for that sittings will fill the time available, if this particular matter is adjourned.
c. In my view, the history of this matter does not suggest any deliberate effort by the accused to delay trial of this matter. Without limiting the generality of the foregoing:
i. Although there were some initial complications with communications between the accused and defence counsel in the early stages of the proceeding, the matter was then expedited by the accused waiving the matter directly into this court, and the subsequent request for Crown consideration of a re-election to the Ontario Court of Justice did not contemplate any significant alteration of when the matter would proceed to trial. While the accused decided to abandon pursuit of an originally contemplated records application after further consideration, and that contemplated application had resulted in scheduled trial dates somewhat later than they otherwise would have been, in my experience such reconsideration is not unusual or indicative of intentional delay.
ii. This is the first time the accused has requested any adjournment of his trial.
iii. Although the Crown disputed the extent to which the accused’s condition is painful and debilitating, there was no suggestion that the accused’s dental problems are not objective realities. In my view, the presented evidence also does not support any inference that the accused deliberately has triggered or aggravated his current medical problems to delay trial of this matter. In particular:
There is no suggestion that Mr Gunkel did not urgently need to have so many of his teeth removed in such a relatively short span of time, (e.g., that Dr Rodriguez has engaged in such extensive tooth extraction unnecessarily), or that the objectively confirmed resulting onset of extensive bone spurs was anything Mr Gunkel could have predicted.
Although there was an implicit if not explicit suggestion that Mr Gunkel’s healing complications have been aggravated in part by his smoking, the extent to which smoking has been a factor in that regard was unclear, and I am not inclined to view any failure on Mr Gunkel’s part to completely refrain from such an extended addictive habit as a deliberate effort on his part to delay the trial. In my view, the more relevant focus is not on what led to Mr Gunkel’s current condition, but whether that condition is sufficiently debilitating to warrant adjournment of the scheduled trial.
d. I am satisfied, on a balance of probabilities, that forcing Mr Gunkel onto trial in his current condition would jeopardize his right to a fair trial guaranteed by ss.7 and 11(d) of the Charter. In that regard, I certainly am mindful that the right to a fair trial does not mean a perfect trial, and that there are other interests, (including the interests of the complainants and their families, and the public interest in ensuring that matters are tried in an orderly and expeditious way that does not unduly undermine the search for the truth), which must be weighed in the balance. However:
i. I am satisfied that Mr Gunkel’s indications of distracting and debilitating pain are genuine and significant. In that regard, none of the presented evidence suggested that pain associated with such dental treatment and bone spur complications was something unusual or unexpected, and the objective confirmation of bone spur growth, resulting in sharp/jagged protrusions cutting into Mr Gunkel’s gums and tongue, seems undeniable.
ii. While pain levels are inherently subjective, I think I can take a degree of judicial notice that pain associated with dental problems certainly can be intense, constant, inescapable and significantly distracting, and find it entirely reasonable to think that the simple acts of talking and/or eating would result in consistently renewed and painful laceration of Mr Gunkel’s gums and tongue because of his confirmed bone spurs.
iii. While Mr Gunkel was able to physically attend the adjournment application hearing before me, and provide oral testimony for approximately 15 minutes, it was clear to me that, while doing so, he was experiencing very obvious and unfeigned pain and difficulties in that regard. While intermittently holding his hand to his face and massaging his cheek, he spoke very quietly to the point of inaudibly mumbling, without much movement of his mouth, while repeatedly pausing and apparently making a consistent effort to keep his responses relatively brief and perfunctory. I have no doubt that such difficulties and challenges would be significantly exacerbated and compounded by his having to engage in prolonged discussions with counsel, and/or having to testify over the course of many hours if not 1-2 days, (if he chooses to testify), during the course of a one-week trial.
iv. I appreciate that Dr Rodriguez apparently has indicated that Mr Gunkel’s condition would not “significantly impair his ability to carry out normal daily activities”. In my view, however, being on trial for extremely serious criminal charges over the course of a week lies beyond the realm of “normal daily activities”. With his liberty seriously at stake, (let alone the extreme social stigma invariably accompanying crimes involving the sexual abuse of children), Mr Gunkel’s defence of the charges inherently will require an ability to focus in a sustained way on the details of historical allegations being advanced by two complainants, the ability to communicate with his counsel in an immediate and interactive way, and the ability to testify freely if and when necessary; i.e., with the latter requiring Mr Gunkel to recall the Crown’s presented case, maintain focus on questions being asked, and respond to questions, (during examination in chief and cross-examination), in a manner that should not be consistently and abnormally constrained by intense physical pain aggravated by the very act of speaking. In my view, anyone in Mr Gunkel’s situation inevitably would be inclined, (as he was during the course of providing testimony during hearing of his adjournment application), to make constant conscious or subconscious choices, (e.g., when speaking with counsel and/or responding to questions during testimony), between providing the fulsome instructions and answers he normally might wish to provide, in the absence of such pain, and providing abbreviated and incomplete instructions and answers in an effort to minimize his pain. Those problems inevitably would be compounded significantly by Mr Gunkel’s impaired ability to focus and concentrate on the trial proceeding; i.e., because of the constant and distracting pain associated with his dental problems.
v. In the result, I am satisfied on a balance of probabilities that Mr Gunkel’s physical health, at the very least, would prevent him from adequately defending himself against very serious charges as a result of not being able to adequately communicate with his counsel and/or testify properly when necessary; i.e., that the test for establishing a breach or threatened breach of Mr Gunkel’s right to a fair trial has been satisfied.
e. That the complainants and their families will experience continued uncertainty, stress, disappointment and further logistical complications as a result of the scheduled trial’s adjournment is undeniable and clearly very unfortunate. However, I also agree with defence counsel’s submission that, despite those regrettable immediate adverse implications for the complainants and their families, the requested adjournment also is mindful of the broader interest of the complainants and their families in attaining finality to this matter; e.g., in terms of avoiding a potential mistrial, (particularly when Mr Gunkel’s current situation is unstable and getting worse rather than better), extended appeal proceedings, and/or the possibility of these two young complainants having to endure the ordeal of testifying more than once in relation to this matter.
f. I also am mindful that, despite the apprehensions of Crown counsel, the length of the adjournment will not be as extended as feared. In particular, as noted above, the Woodstock trial co-ordinator has confirmed that this matter can be tried during the September 2026 or November 2026 trial sittings in Woodstock. In the result:
i. While the complainants and their families unfortunately will have their stress and uncertainty prolonged, the period of further delay causing such complications likely will be limited to a few months.
ii. I am not persuaded that one adjournment of such a trial, for a period of a few months, in such unusual circumstances, would dissuade victims of such offences from reporting them.
iii. While delay inherently results in fading of memory, it seems unlikely that such memories will fade significantly over the course of a few additional months, particularly when the memories of complainants and other potential Crown witnesses almost certainly have been the subject of focused recollection and refreshment as the matter has been prepared for imminent trial in June of 2026.
iv. While any delay in such a criminal proceeding is regrettable, I am not persuaded that the public’s confidence in the administration would be significantly undermined by the trial of this matter being delayed for a few months in these particular and unusual circumstances. To the contrary, it must be remembered that the accused is presumed to be innocent, in relation to these very serious charges, and I think reasonably informed members of the public would be legitimately concerned about a system of justice that forced the accused onto trial in such circumstances.
9For such reasons, the accused’s adjournment request is granted.
Conclusion
10When I reserved my decision on the adjournment application at the end of last week’s hearing, I indicated that the matter would be adjourned for the time being to the commencement of the Woodstock trial sittings on June 8, 2026, as currently scheduled, unless I thereafter decided to grant the adjournment, in which case the matter would be removed from the list of matters to addressed during that sittings and adjourned to be spoken to at the next assignment court in Woodstock, on August 13, 2026, at 11:00am, (virtual), for the contemplated setting of new trial dates during the September 2026 or November 2026 trial sitting.
11As the requested adjournment has been granted, the matter will be removed from the trial list for the Woodstock trial sittings commencing on June 8, 2026, and adjourned accordingly to that next assignment court on August 13, 2026.
Ian F. Leach
Justice I.F. Leach
Date: May 26, 2026
Footnotes
- In cross-examination, Mr Gunkel confirmed his willingness to work with the oral surgeon to schedule any surgery “around the court docket” to the extent that was reasonably possible; i.e., to minimize any unnecessary disruptions to the court’s schedule. Again, however, his expectation was a recommendation by the specialist oral surgeon that the anticipated oral surgery proceed as soon as possible; e.g., to minimize the growth of further bone spurs, associated pain and risks of infection.
- Coming into hearing of the accused’s application for an adjournment, Crown counsel was of the view that, if this matter was adjourned from the currently scheduled trial dates in June of 2026, there was a “realistic prospect … that it may not e reached for another 12 to 18 months”. However, further input from the Woodstock trial coordinator, both during the hearing and thereafter, confirmed that was simply not the case.
- No defence objection was taken to the inherently hearsay nature of that information. In that regard, I also will note that, although Dr Rodriguez had received a summons to provide testimony if necessary during the hearing of the accused’s adjournment application if necessary, and I had indicated my intention, (with the consent of the parties), to grant Dr Rodriguez leave to testify by videoconference pursuant to section 714.1 of the Code, neither party asked to have Dr Rodriguez provide direct testimony during hearing of the adjournment application.
- See, for example: R. v. Darville (1956) 1956 463 (SCC), 116 C.C.C. 113 (S.C.C.), at 115; R. v. Barrette (1976), 1976 180 (SCC), 29 C.C.C. (2nd) 189 (S.C.C.), at 193; R. v. Olbey (1977), 1977 2060 (ON CA), 38 C.C.C. (2nd) 390 (Ont.C.A.), at 398, affirmed on other grounds (1979), 1979 61 (SCC), 50 C.C.C. (2d) 257 (S.C.C.); R. v. Manhas (1980), 1980 172 (SCC), 17 C.R. (3rd) 331 (S.C.C.), at 348, affirming (1978), 17 C.R. (3d) 331 (B.C.C.A.); R. v. J.C.G. (2004), 2004 66281 (QC CA), 189 C.C.C. (3d) 1, at paragraphs 8-9; R. v. White (2010), 2010 ABCA 66, 252 C.C.C. (3d) 248 (Alta.C.A.), at paragraphs 14-15; R. v. Millard, [2017] O.J. No. 4055, at paragraph 8; and R. v. S.S., [2026] O.J. No. 1989 (S.C.J.), at paragraph 18.
- See R. v. Millard, supra, at paragraph 9; and R. v. S.S., supra, at paragraph 28.
- See, for example: R. v. Badran, [2020] O.J. No. 6132 (S.C.J.), at paragraph 108; and R. v. S.S., supra, at paragraph 19.
- See, for example: R. v. Badran, supra, at paragraphs 107-108; and R. v. S.S., supra, at paragraphs 19 and 24.
- See, for example: R. v. S.S., supra, at paragraph 29.
- See, for example: R. v. Smith (1989), 1989 7222 (ON CA), 52 C.C.C. (3d) 90 (Ont.C.A.), at paragraph 9; and R. v. Beals (1993), 1993 5636 (NS CA), 126 N.S.R. (2d) 130 (C.A.), at paragraph 19; and R. v. Badran, supra, at paragraphs 107-108.
- See, for example: R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont.C.A.), at paragraph 29.
- See R. v. T.G.P. (1996), 1996 8405 (BC CA), 112 C.C.C. (3d) 171 (B.C.C.A.), at paragraph 18.
- See R. v. Magomadova, [2015] A.J. No. 62 (C.A.), at paragraphs 24-25.
- See R. v. Magomadova, supra, at paragraph 40.
- Ibid., at paragraph 24.
- See, for example: R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (C.A.), at paragraphs 48-52; R. v. Millard, supra, at paragraph 9; R. v. Badran, supra, at paragraph 108; and R. v. S.S., supra, at paragraph 19.
- See, for example, R. v. S.S., supra, at paragraphs 19 and 27-29.