R. v. Miano, 2026 ONSC 4192

CITATION: R. v. Miano, 2026 ONSC 4192

COURT FILE NO: CR 25-50000249-0000

DATE: 20260720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CLIPPER MIANO

Applicant

Satomi Aki, for the Crown

Sherif M. Foda and Dmitriy Pak for the Applicant

HEARD: July 3, 2026

PUBLICATION RESTRICTION NOTICE

By order made under subsection 486.4 of the Criminal Code of Canada, information that may identify the complainant shall not be published in any document, or broadcast or transmitted in any manner.

RHINELANDER, J.

REASONS ON 11(B) aPPLICATION

OVERVIEW

1The Applicant is charged with several counts of sexual assault and sexual exploitation in relation to three incidents involving the same complainant between December 11 and 12, 2023.

2The Applicant’s trial is scheduled for August 4, 2026, and anticipated to conclude by August 14, 2026. This is the second trial date. Based on the trial estimate, the total delay from the date the information was sworn until the conclusion of the trial will be 968 days or approximately 31.8 months. This period exceeds the 30-month presumptive ceiling for trials in the Superior Court of Justice established in R. v. Jordan, 2016 SCC 27.

3The Applicant argued there is no defence delay and applied to have the proceedings stayed on the basis that his s.11(b) Charter right to a trial within a reasonable time has been infringed.

4The Respondent argued the Applicant is responsible for three periods of delay and when deducted from the total delay brings the matter under the presumptive ceiling.

BACKGROUND

5Sexual acts are alleged to have occurred on the mornings of December 11 and 12, 2023. The parties are alleged to have engaged in further sexual acts on the evening of December 12, 2023.

6At the time, the complainant was a 17-year-old student. The Applicant had been employed as a gym teacher at the complainant’s school from September of 2023 until December 12, 2023. The complainant was not enrolled in any classes taught by the Applicant.

7The allegations were reported to police after the complainant told a friend she had sexual intercourse with the Applicant. The friend reported the relationship to the school. The Applicant was suspended, police were called, and the complainant’s parents contacted.

8On December 13, 2023, the complainant provided a statement to police and told them about two instances of non-consensual sexual acts that occurred on the mornings of December 11 and 12. The complainant provided a further statement to police on February 12, 2024, and reported a third instance that occurred the evening of December 12, 2023, after the Applicant had been suspended.

9The Applicant was arrested on December 21, 2023, and his cellphone was seized by police. The Applicant was released at his home and given an undertaking with conditions. His first court appearance was on February 1, 2024.

10Prior to his first appearance, he contacted counsel who requested disclosure on January 15, 2024, in advance of the court date. An initial disclosure package was provided to the Applicant on that date, and the matter was adjourned to April 25, 2024. In the interim, it was anticipated more fulsome disclosure would be provided and a crown and judicial pretrial held.

11A Crown pretrial was held on May 6, 2024. The following day the Crown canvassed availability of June 5 or 6, 2024, for a judicial pretrial. The Defence responded they were not prepared to set a judicial pretrial in the absence of receiving disclosure of the search warrant information for the Applicant’s phone, the Cellbrite report for the phone, and the results of DNA testing of the Applicant comparable to the DNA obtained from the SAEK.

12At the Crown pretrial, it was canvassed whether the Applicant would consent to providing a sample of his DNA. Counsel advised he would obtain instructions and advise the Crown by May 10, 2024. The Crown informed counsel the turnaround time for results once the CFS had received the sample was approximately one to two months.

13The Applicant proposed a judicial pretrial be scheduled for mid to late July to allow for the CFS testing and results to be disclosed along with the Cellbrite report. The Applicant consented to provide a sample, and the CFS results were disclosed to counsel on June 13, 2024.

14The Cellbrite report was not disclosed to counsel until June 23, 2024. It consisted of over 20,000 pages.

15In the interim, counsel continued to discuss if the Applicant might waive the preliminary inquiry and go straight to trial in the Superior Court of Justice. Ultimately, the Applicant chose to proceed with a preliminary inquiry.

16A judicial pretrial was held on July 22, 2024, and two days were estimated for the preliminary inquiry. A scheduling conference was held with the trial coordinator on July 30, 2024, and March 31, and April 1, 2025, were agreed to.

17At the conclusion of the preliminary inquiry, committal was conceded and the Applicant was ordered to stand trial and attend at the Superior Court of Justice on May 2, 2025. The matter was remanded several times while the parties obtained trial dates from the trial coordinator’s office. The trial was ultimately scheduled for May 11, 2026, for seven to nine days with a jury.

18The parties attended court on May 11, 12, and 13, for trial. Unfortunately, there was no judge available to hear the matter and it was adjourned to May 22, 2026, to schedule a new trial date. The trial coordinator offered June 1, July 6, and August 4, 2026, for a seven-to-nine-day trial. The Crown confirmed their availability and to prioritize the case. The Applicant was not available June 1 or July 6. The trial was rescheduled for August 4, 2026.

19The Crown argued the defence should be held responsible for three periods of delay:

i) Delay in scheduling a JPT in the Ontario Court of Justice;

ii) Delay in scheduling the preliminary inquiry; and

iii) Delay in scheduling the new trial date of August 4, 2026.

20The Crown submitted that when these three timeframes are considered in calculating net delay, the matter is below the presumptive 30-month ceiling.

LEGAL FRAMEWORK

21With the release of Jordan in 2016, the Supreme Court of Canada established a new framework for assessing applications pursuant to s.11(b) of the Charter based on the calculation of net delay. Net delay is then examined against the presumptive ceiling. The presumptive ceiling for matters proceeding in the Superior Court is thirty months. If the net delay is below the presumptive ceiling, the delay is presumed to be reasonable. If the net delay exceeds the presumptive ceiling, the delay is presumed to be unreasonable.

22The purpose was to emphasize the responsibilities of all participants within the criminal justice system to ensure timely trials: Jordan, paras. 50 and 107. The ceilings established by the Supreme Court of Canada provided participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, para. 108; R. v. S.A., 2024 ONCA 565, para. 22.

23In setting the ceilings, the Jordan majority were alive to the real world within which the administration of criminal justice operates and aware that "resource issues are rarely far below the surface of most s. 11(b) applications": para. 117. To this end, the ceilings set in Jordan were said to "reflect the realities we currently face": para. 57; S.A., para. 23.

24To calculate the net delay, the Court must identify and characterize any periods of delay that occurred throughout the trial. Any delay attributable to the defence must be deducted from the total delay. If the net delay, after deducting any defence delay, exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption that the delay is presumptively unreasonable. The Court must also consider any exceptional circumstances: Jordan, paras. 69 and 75. If the net delay still exceeds the presumptive ceiling, the court must consider the complexity of the case and whether the time taken to get to trial is justified.

25All relevant circumstances should be considered to determine how delay should be apportioned among the participants: R. v. Boulanger, 2022 SCC 2, para. 8; R. v. Hanan, 2023 SCC 12, paras. 9, and 54-56; R. v. Bowen-Wright, 2024 ONSC 293, paras. 38-39.

26In circumstances where the Court and the Crown are available, but the defence is not, does not automatically constitute defence delay. This is where courts must examine the relevant circumstances to determine how the delay should be apportioned among the participants: Hanan, para. 9; R. v. Qureschi, 2026 ONCA 20. It may be appropriate to attribute the delay between the parties: Boulanger, para. 8; Qureshi, para. 41.

ANALYSIS

27The following is an analysis of the three timeframes the Crown argued are defence delay and required judicial scrutiny.

i) Scheduling a JPT at the OCJ

28A crown pretrial was conducted on May 6, 2024. The following day, the Crown offered June 5 or 6, 2024, for a judicial pretrial in the Ontario Court of Justice. The Applicant, through counsel, advised he required the results of the DNA testing and the Cellbrite report for his client’s cellphone prior to making an election as to his mode of trial. He proposed a JPT be scheduled for mid to late July as it may not be necessary to have a JPT in the OCJ if his client waived the preliminary inquiry. As a result, the JPT was scheduled for July 22, 2024.

29The Crown argued that because the Crown and Court were available for a JPT on June 5, 2024, the period from that date to July 30, 2024, (the latter being the date the trial scheduling call was held) should be attributed to the defence as delay. This period is calculated at 55 days.

30I have determined this delay is not attributable to the defence.

31Unlike the circumstances in R. v. Ghandi, 2016 ONSC 5612, counsel was not refusing to set a JPT, he simply requested it be scheduled for a date after he received the outstanding disclosure. Furthermore, counsel had indicated through email on April 29, 2024, if it was necessary to set a JPT he would, but he would not make an uninformed election on behalf of his client.

32If the delay in scheduling a JPT was solely related to waiting for a DNA comparison of the Applicant to a male DNA obtained from the SAEK, I would have no difficulty in attributing delay to the defence. However, the defence was also waiting for the contents of the Applicant’s phone and the search warrant and information to obtain the warrant.

33In this case, police seized the Applicant’s phone on December 21, 2023, and sought a search warrant to extract and examine the contents of his phone. Evidence from cell phones may form part of the Crown’s case but it may also be of assistance to the defence. Information on cellphones is real evidence which may advance the search for the truth. This may have been the case here, as it is has become a norm to communicate with others over social media or text.

34On April 29, 2024, the Crown informed the Defence, the police had obtained a warrant and analyzed the phone. The Crown advised the officer in charge would attach the information to obtain and the results from the phone and hoped it would be available soon given it had to proceed through the disclosure process.

35On May 8, 2024, after the Crown pretrial had been held, the Crown agreed it would be ideal for the Defence to have the phone extraction, which he would have “shortly.” He also agreed it was unlikely a CFS report would be available by June 6, 2024. The Defence was prepared to set a JPT for June, if outstanding disclosure was provided. Ultimately, the Crown offered to provide July pretrial dates.

36The ITO for the search warrant for the phone was disclosed on May 28, 2024. The Cellbrite phone extraction or analysis was received by the Crown on June 13, 2024, but not disclosed to the Applicant until June 23, 2024. On that date, the Crown indicated he had not reviewed “all 22k pages” but it is the Applicant’s phone, so he did not redact anything. If the Crown did not review everything and did not redact anything, it is unclear why there was further delay in providing it.

37The Applicant advised the content of the extraction of the phone was 26,000 pages. The Applicant articulated his concerns regarding the use that could be made of the content of the phone.

38While I appreciate it is the Applicant’s phone and he should know what is on his own phone, counsel for the Applicant does not. For counsel to obtain proper instructions and provide legal advice it was important that he receive this disclosure prior to making an election to waive his preliminary inquiry. There was no explanation proffered for why the search warrant, the information to obtain, and the results of the search had not been provided to the Crown sooner, and ultimately to the Defence.

ii) Scheduling the Preliminary Inquiry

39The Crown argued 18 days should be attributed to the Defence for the period of March 6 to 24, 2025, as both the Crown and Court were available.

40On July 30, 2024, the preliminary inquiry scheduling conference was held. The Court and Crown were available March 6 and 7, and March 17 and 18, 2025. The Defence was not. The Court and Defence were available for March 24 – 28, 2025, but the Crown was not. The dates of March 31 and April 1, 2025, were selected. The Court also had availability in January and February.

41On September 23, 2024, counsel for the Applicant contacted the Crown to advise a matter had collapsed and he was now available on January 2 and 3, 2025, and February 27 and 28, 2025. The Crown responded within hours and advised they were unavailable for the January dates but may be able to make himself available for the February dates. In the interim, he suggested counsel contact the trial coordinator to inquire if the February dates were available.

42Counsel made no effort to contact the trial coordinator until September 30, 2024, a week later, and a date Courts in Ontario were closed to honour and respect the National Day for Truth and Reconciliation.

43On October 2, 2024, several emails were exchanged between counsel and the trial coordinator’s office. The Court was available on February 27 – 28, 2025, however, the Crown had booked a further matter on those dates the previous day.

44While I appreciate the Applicant took steps to try and secure earlier dates, the one week lapse between his communication with the Crown with no effort to contact the trial coordinator does not bode in his favour. Just as the Applicant should not be held to hold dates in perpetuity, nor should the Crown.

45I find the delay of 18 days between March 6 and March 24, 2025, is attributable to the defence.

iii) Rescheduling SCJ Trial as Matter Not Reached

46On May 11, 2026, the Applicant attended for his trial and appeared before Goldstein, J., in the “Trials in Holding” court. The parties were ready to proceed, however, there was no judge available to hear the trial. The Applicant was remanded to the following day.

47On May 12, 2026, the parties attended, ready to proceed. They were advised there were no judges available that day and it was unlikely a judge would be available the following day. As a result, the parties were directed to appear via Zoom the following morning to cause less inconvenience to all concerned.

48On May 13, 2026, the parties were advised it was unlikely the matter would be reached as there were still no judges available.

49The Crown advised the court it was attempting to streamline its case and estimated the trial could be completed in five days with a jury. The defence disagreed. Goldstein, J., informed the parties this was academic and he was not prepared to change the trial estimates at this stage.

50The parties were directed to “remain on standby” in the event a judge became available. The matter was remanded to May 22, 2026, to set a new date for trial. No judge became available and efforts were made to reschedule the trial. The next available date for all parties was August 4, 2026.

51The earliest trial dates offered by the Court for this matter were June 1, 2026, July 6, 2026, and August 4, 2026, for a nine-day trial.

52Counsel for the Applicant was not available until the August trial dates.

53The time between June 1, 2026, and August 4, 2026, is 64 days. The Crown argues this time should be apportioned between the parties. If I were to accept this argument, this would amount to a further 32 days of delay for a total of 50 days of defence delay. The net delay would still exceed the presumptive ceiling.

54For reasons set out below, I do not agree with the Crown’s position on the apportionment of this delay.

55The trial date of May 11, 2026, was set almost a year earlier. The Crown was aware of how close this trial date was to the presumptive ceiling. In fact, the Crown had initially offered a trial date that would exceed 30 months and had to revisit its schedule.

56On June 19, 2025, when the original trial date was scheduled, the Applicant made clear he was available for trial from April 20 to May 22, 2026, and July 13 to September 4, 2026.

57On May 14, 2026, the Applicant’s counsel’s availability remained the same as it was the previous year.

58Unlike other cases where multiple dates were offered over a seven-to-nine-month period, and defence counsel were unavailable for any of the dates, this is not the situation here. Being able to reschedule this trial within three months is not an unreasonable length of time.

59The trial dates were offered within three months, and the Applicant accepted the first one available to him. Shortly after scheduling the second trial, counsel for the Applicant became unexpectedly available as a homicide trial he had scheduled resolved. He contacted the trial coordinator’s office who confirmed there was court availability to hear this trial on June 22, 2026. Unfortunately, the Crown’s office was unable to make itself available and accept the trial date on such short notice.

60Counsel are not expected to hold themselves in a state of perpetual availability: R. v. Godin, 2009 SCC 26, para. 23. Courts are required to look at all relevant circumstances to determine how delay should be apportioned among the participants: Hanan, para. 9.

61The trial did not proceed through no fault of the Applicant. There were simply no judicial resources available to start the trial that week. This is a reality of the court process. Trials are stacked in hopes that judicial resources are utilized to their fullest. Efforts are made to reach all matters, but there are occasions where this is not possible.

62Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence”: Hanan, para. 9.

63The issue of judicial unavailability in this jurisdiction has also been discussed in R. v. Bowen-Wright, 2024 ONSC 293, R. v. Constantino, 2024 ONSC 491, R. v. Liu, 2024 ONSC 2022, and R. v. Downey, 2024 ONSC 2157.

64The Crown arguing this motion, was assigned this matter earlier this year and is the third Crown. To her credit, she took steps to try and have the trial proceed in the week of May 11. She offered to streamline the case by calling only one witness and proceeding on three of the six counts. While the Crown is commended for her effort on this front, the reality is the evidence of the other witnesses was minimal due to the focus of their evidence and anticipated length. Also, dependent on the evidence of the complainant, the Crown may have had to call additional witnesses.

65This also does not contemplate the length of any defence evidence sought to be called, including a friend of the complainant, the Applicant, and possibly others. When this is considered, including jury selection, instructions to the panel at large, the evidence proper, an evidentiary ruling to be considered by the trial judge as per the pretrial rulings, a pre-charge conference, closing submissions, and the charge to jury, not including deliberations, it was very optimistic that the matter could be completed within five days.

66This was clearly not a complex case and should have been prioritized given the Jordan timelines. The presumptive ceiling is not an “aspirational target”, nor should it be considered a buffer or a safety net. Having cases tried in a timely manner is a shared responsibility between defence and crown.

67The time between June 1, 2026 to August 4, 2026, is not attributable as defence delay.

68Jordan made clear there is a responsibility on all parties to move things forward as expeditiously as possible. I have commented on a few occasions where the Applicant could have moved swifter in obtaining the earlier preliminary inquiry dates when his calendar opened up. Similarly, there were several opportunities for the Crown to prioritize this matter as well. At the outset, the Defence offered dates for a crown pretrial a month earlier than the date offered by the Crown. Also, no efforts were made to reach out to the Defence to schedule a judicial pretrial in the SCJ prior to his first appearance, it was counsel for the Defence who initiated contact with the administrative Crown to make inquiries which resulted in further delay. It should be noted for the record that counsel for the Crown on these earlier occasions was not Ms. Aki.

Disposition

69The total delay in this matter is 968 days. Defence delay is 18 days. Therefore, the net delay is 950 days or more than 31 months, which exceeds the 30-month presumptive ceiling. No exceptional circumstance was raised to justify exceeding the ceiling.

70The 11(b) Application is granted, and the charges are stayed pursuant to section 24(1) of the Charter. Given my decision, it is not necessary to consider the alternate argument whether this matter was in the Superior Court of Justice for an excessive period.

Rhinelander, J.

Released: July 20, 2026

CITATION: R. v. Miano, 2026 ONSC 4192