HMTK v. Martinez-Garzon, 2026 ONSC 3555

HMTK v. Martinez-Garzon, 2026 ONSC 3555

COURT FILE NO.: CR-24-00000098-0000

DATE: 20260617

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

S. Johnson, for the Respondent

• and -

BRAYAN MARTINEZ-GARZON

R. Wellington, for the Applicant

HEARD: April 23, 2026

REASONS FOR DECISION

(Section 11(b) of the Charter)

LATIMER J.

1This is an application for a stay of proceedings. Mr. Martinez-Garzon, hereinafter the Applicant, submits that his section 11(b) Charter rights have been violated by excessive delay in this case, particularly because of a December 2025 mistrial. It is submitted the fault for the mistrial lies at the feet of the state for providing unqualified interpreters to assist at trial, necessitating the mistrial and an immediate restart with appropriate interpreters.

2The Crown submits the interpreter difficulty amounts to an exceptional circumstance, and the subsequent time to complete this trial required should not trigger a stay of proceedings. The Crown also points to earlier defence delay as lengthening the time to preliminary inquiry and, eventually, trial.

3On May 11, 2026, I advised that the application was dismissed with reasons to follow. These are those reasons.

4First, the governing law. The current approach to section 11(b) of the Charter began ten years ago with the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631. The Court intended this new approach to be simple in application, predictable in effect, and provide “meaningful direction to the state on its constitutional obligations”: Jordan, at para. 50. All actors in the justice system have a part to play to ensure that criminal trials are concluded in a reasonable time, and the Jordan framework was intended to keep delay considerations front of mind.

5The Court of Appeal for Ontario later summarized the framework as follows:

1. Calculate the total delay (time from charge to actual or anticipated end of trial).

2. Subtract defence delay from total delay. What remains is “net delay”.

3. Next, net delay is compared to the presumptive ceiling. If it exceeds the ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the existence of exceptional circumstances (either discrete events that lengthened the time required, or a particularly complex case).

4. If the net delay is below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (R v. Coulter, 2016 ONCA 704, at paras. 34-41).

6In this case, I will consider the application as a series of questions consistent with the above summary.

What is the total delay?

7The Applicant’s information was sworn June 1, 2023. His trial finished on February 18, 2026. That is 994 days, or 32.67 months.¹

Has there been defence delay?

(1) Delay in setting the preliminary inquiry

8This is a hybrid case where the Crown elected by indictment and the defence, in turn, elected to have a jury trial with a preliminary inquiry. The parties agreed, following an OCJ JPT, that the preliminary inquiry would take 1 day. That JPT occurred on February 8, 2024, however the preliminary inquiry was not actually set until April 26, 2024. The Crown submits that much of this period should be characterized as defence delay.

9Defence delay as a concept has recently been discussed by Justice Coroza, writing for the Court of Appeal in R. v. H.B., 2026 ONCA 160:

1. Defence delay arises in two ways: from waiver (explicit or implicit, if the latter is clear and unequivocal) and from conduct that solely or directly is the cause of delay.

2. Time when the Crown and court are ready to proceed, but the defence is not, can also qualify as defence delay. However, when assessing rejected dates offered by the court, a contextual assessment of how much of the subsequent time is defence delay should be undertaken.

3. Legitimate actions taken to respond to the charges are not defence delay.

4. Defence actions in response to negligent Crown conduct, such as late disclosure, is not defence delay.

10The modern approach to defence delay – and all other characterizations of delay in a s. 11(b) analysis – is contextual. The Supreme Court of Canada instructs that “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”: R v Hanan, 2023 SCC 12, [2023] 1 SCR 467, at para. 9.

11I am satisfied there was defence conduct between the end of the OCJ JPT and the setting of the preliminary inquiry date that caused delay in this case. The JPT completed on February 8; a four-week adjournment followed to set the preliminary inquiry date. That was more than sufficient time for it to occur. The subsequent transcripts reveal that it was the defence failure to file a written election to mode of trial and connect with the trial coordinator that delayed setting the preliminary inquiry. I accept that March 8, 2024 to April 26, 2024 (50 days) should be characterized as defence delay.

(2) Delay in completing the trial

12This trial, originally scheduled as a five-day jury trial, re-elected to judge alone. The applicant was arraigned on Monday, December 15 and the trial began. The parties were advised that I was not available to continue the trial on Wednesday, December 17, as I was previously scheduled to conduct a pre-trial motion on a homicide matter in another jurisdiction.

13The prosecution mistried on Tuesday, December 16 because of concerns about the quality of state-provided interpretation. The details are contained in my December 16 endorsement. We re-started the case on Thursday, December 18, and the Crown’s case finished in the early afternoon on Friday, December 19. At the applicant’s request, we adjourned to allow him to consider whether he wished to present evidence, which he ultimately did. The defence case and final submissions took one day.

14As the transcript of December 19 shows, discussions took place about when the trial would continue. I indicated to defence counsel that it could continue the following week, December 22. Counsel indicated unavailability. Dates were offered at the end of December, early January, and then later in February. Ultimately, February 18, 2026 was selected and the trial completed.

15Characterization of what caused the mistrial is required. The Crown submits that the fact that fully accredited interpreters were not provided by the Ministry of the Attorney General – Court Services Division amounts to an exceptional circumstance, and the resulting delay in completing the trial was reasonable. These circumstances, if accepted as exceptional, serve to rebut the presumption of unreasonableness in the s. 11(b) analysis.

16The applicant submits that the state provided the interpreters and must bear responsibility for the resulting delay. Providing two interpreters who do not qualify as fully MAG accredited interpreters amounts to a failure to provide appropriate accreditation. It was this failure that caused the mistrial and ultimately caused the case to continue into February 2026.

17The Crown has provided two decisions touching upon similar factual situations, R v. Agpaoa, 2024 ONSC 3451, and R v. Abdullatif, 2019 ONCJ 506. I take from these decisions that this is a fact-specific sub issue – is what occurred a state failure to provide interpretation, or an unexpected deficiency in the quality of interpretation provided? The former counts towards net delay, the latter may be characterized as an exceptional circumstance.

18I reflected on this issue for some time, as it lays at the heart of this application. I concluded that the state bears responsibility for the mistrial, as it was foreseeable that providing two inadequate interpreters – one partially accredited, the other accredited through a non-MAG process – would create trial complications and potentially result in delay. That is exactly what happened. However, what happened next is relevant too. The court offered immediate continuation dates, beginning on Monday, December 22, the next juridical day.

19It bears reminding that this trial was originally set as a jury trial, estimated to finish in five days. Jury trial estimates are exactly that, estimates, and all parties would have known that, if necessary, the jury trial would have continued the following week. In setting this five-day jury trial the week of December 15, the parties were aware of the real possibility that it might spill into the subsequent week of December 22. While the re-election provided more flexibility, the fact remains the system was ready and able to continue this trial on December 22, and then again, the following week. That is reasonable availability in the circumstances of this case. The applicant’s unavailability to continue this trial between December 22 and January 2 amounts to defence delay: R v. Dos Santos, 2025 ONCA 598, para. 33.

20In conclusion on this point, while the system bears responsibility for the mistrial, it was nevertheless immediately available to remedy the problem by starting the trial anew. This second trial, however, required one additional day. The system offered it in short order, but the applicant was unavailable. In the circumstances, I conclude that all delay beyond December 22 is defence delay that should be subtracted from net delay.

What is net delay?

21Total delay is 994 days. Subtracting 108² days of defence delay leaves 886 days remaining. Dividing that number by 30.417 equals 29.12 months of net delay.

Can the applicant rebut the presumption of reasonableness?

22This is a matter being tried in the Superior Court of Justice. The presumptive ceiling is 30 months. I have calculated the delay in this proceeding as under that ceiling, but by less than a month. On an overall review of the proceedings, however, I am not satisfied that the delay is nevertheless unreasonable. The applicant moved through the Ontario Court of Justice in what I would describe as an unhurried pace. They have not rebutted the presumption of reasonableness in a case where the delay is under the Jordan ceiling. Further, this is a sexual assault allegation involving a teenage girl at her place of work. It is deserving of a trial on the merits.

23For all these reasons, the delay application is dismissed.

Footnotes

1. 1994 divided by 30.417, pursuant to the formula from R. v. Shaikh, 2019 ONCA 895, at para. 33.
2. 250 days between March 8 and April 26, 2024, and 58 days between December 22, 2025 and February 18, 2026.