ONTARIO

SUPERIOR COURT OF JUSTICE

Court File

COURT FILE NO.: CR-23-0169

DATE: 2026/02/10

Between

HIS MAJESTY THE KING Respondent – and – C.W. Applicant

M. Crystal , for the Crown

A. Rice and K. Heidary , for the Applicant

HEARD: October 20, 2025

Publication Restriction Notice

PUBLICATION RESTRICTION NOTICE

By court order made under s. 486.4(1) of the Criminal Code , no information that might identify the person described in this judgment as the complainant shall be published, broadcast, or transmitted in any manner. This decision has been anonymized to permit publication.

ELLIES J.

REASONS FOR DECISION ON APPLICATION FOR A STAY OF PROCEEDINGS

OVERVIEW

[ 1 ] The applicant is charged with committing seven offences against three former family members. The charges were scheduled for trial beginning on October 20, 2025. However, on the day the trial began, counsel for the applicant applied to stay the charges under s. 11(b) of the Charter of Rights and Freedoms for delay. Following the hearing, I dismissed the application for reasons to be delivered. [^1]

[ 2 ] These are my reasons.

BACKGROUND

[ 3 ] The offences are alleged to have occurred between January 1, 2009, and April 25, 2014. The Information beginning the criminal process was sworn on January 2, 2022. A warrant for the arrest of the applicant was issued that same day.

[ 4 ] The applicant was arrested in New Brunswick on March 23, 2022, and immediately released on an undertaking. He retained Nathan Gorham of Gorham Vandebeek LLP (the “Gorham firm”) on or about May 4, 2022, who requested disclosure from the Crown on that date. A designation of counsel naming Mr. Gorham was filed at or about the same time. Most of the appearances made by counsel to address the charges thereafter were made without the applicant being present, as is permitted under s. 650.01 of the Criminal Code , R.S.C. 1985, c. C-46.

[ 5 ] The charges were first addressed in the Ontario Court of Justice (the “OCJ”) on July 7, 2022. The case remained in the OCJ until September 2023, when an Indictment was filed in the Superior Court of Justice (the “SCJ”). It was addressed for the first time in the SCJ on October 6, 2023.

[ 6 ] The trial date of October 20, 2025, was set on June 7, 2024. The trial was anticipated to end on October 28, 2025. If the trial had ended on that date, the case would have taken 1,316 days, or 43.2 months, to complete. [^2] That is more than 13 months beyond the presumptive ceiling of 30 months established in R. v. Jordan , 2016 SCC 27 , [2006] 1 S.C.R. 631, for cases in the SCJ.

LEGAL FRAMEWORK

[ 7 ] In Jordan , at para. 46 , the Supreme Court of Canada set a ceiling of 30 months within which trials must be concluded in the SCJ. Delay beyond that is presumed to be unreasonable. The following summary of the Jordan framework for analyzing delay employs the terminology used by Gillese J.A. in R. v. Coulter , 2016 ONCA 704 , 133 O.R. (3d) 433, at paras. 34-53 :

• The first step is to calculate the total delay from the date the information was sworn until the date the trial is expected to end: Jordan , at para 47 .

• Defence delay is then deducted from the total delay, resulting in the “net delay”: Jordan , at para. 66 .

• Defence delay is either: (1) delay that results from a defence waiver of s. 11(b), or (2) delay caused solely or directly by the conduct of the defence: Jordan , at paras. 61 and 63 .

• If the net delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut the presumption by establishing the presence of exceptional circumstances: Jordan , at para. 47 .

• In general, exceptional circumstances are either: (1) discrete events, or (2) particularly complex cases: Jordan , at para. 71 . They lie outside the Crown's control because they are reasonably unforeseen or unavoidable and the delay they cause cannot reasonably be remedied: Jordan , at para. 69 .

• The delay caused by discrete events must be deducted from net delay to arrive at the “remaining delay”: Jordan , at para. 75 .

• If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time it has taken is justified and the delay is reasonable: Jordan , at para. 80 .

• If the remaining delay falls below the ceiling (which I will call “sub-ceiling delay”), the onus is on the defence to show that it is unreasonable: Jordan , at para. 48 . It may do this by demonstrating both: (1) that it took meaningful, sustained steps to expedite the proceedings, and (2) that the time the case has taken markedly exceeds the reasonable time requirements of the case: Jordan , at paras. 82 and 87 .

[ 8 ] With this framework in place, I move to an analysis of the periods of time at issue in this application.

ANALYSIS

[ 9 ] Neither side alleges any delay due to exceptional circumstances. The only issue is the attribution of defence delay.

[ 10 ] I do not agree with the way in which the Crown has attributed some of the delay in this case. However, rather than explain in detail the reasons why I disagree, as I have done in the past, I will focus my discussion in this case on the periods of delay that I accept as defence delay, with the exception of the first period of alleged delay.

January 5, 2023, to February 2, 2023 (0 days):

[ 11 ] During an appearance before the OCJ on January 5, 2023, a member of the Gorham firm asked for an adjournment to schedule a pre-trial meeting with the Crown (a “CPT”) and a judicial pre-trial conference (a “JPT”). The matter was adjourned to February 2, 2023, for that purpose.

[ 12 ] The Crown contends that the delay from January 5, 2023, to February 2, 2023, is attributable to the defence. I disagree. The CPT that was the subject of the January 5, adjournment was, in fact, the second CPT. The first took place on September 7, 2022. The second CPT was necessary because the Crown had not yet made full disclosure by September 7, nine months after the Information was sworn and four months after defence counsel had written for it. According to the applicant, the missing disclosure (including the applicant's statement) was not received until sometime between December 1, 2022, and January 5, 2023, after the case had been adjourned on three occasions to await the same.

[ 13 ] Because the second CPT was necessitated by the Crown's failure to make full disclosure, I would not attribute any reasonable delay in arranging it as defence delay. Unfortunately, however, as I will explain, the delay was not reasonable.

February 2, 2023, to March 2, 2023 (28 days):

[ 14 ] On February 2, 2023, Mr. Bunce, an articling student with the Gorham firm, advised the court that Mr. Gorham “was unable to hold a [CPT] since the last court date”. As a result, Mr. Bunce requested a two-week adjournment. Because the court was sitting only once per month to address cases, the matter went over to March 2, 2023.

[ 15 ] There is no evidence in the record as to why Mr. Gorham was not able to attend a CPT. Indeed, there is no evidence that he even tried to schedule one. For this reason, I would attribute the delay from February 2, 2023, to March 2, 2023, to the defence.

March 2, 2023, to April 6, 2023 (35 days):

[ 16 ] According to the application record, no one from the Gorham firm wrote to the Crown to schedule the CPT until February 28, 2023. And so, it is no surprise that, when the matter was addressed on March 2, 2023, it had to be adjourned again to April 6, 2023, to accommodate a CPT set for March 22, 2023.

[ 17 ] In my view, the delay between March 2, 2023, and April 6, 2023, is also attributable to the defence.

April 6, 2023, to May 4, 2023 (28 days):

[ 18 ] On April 6, 2023, Mr. Bunce again appeared on behalf of Mr. Gorham. He advised the court that the applicant would be electing trial by judge and jury and inquired as to whether the presiding OCJ judge could set a date for a JPT in the SCJ. The judge advised him that he would have to file a written notice of election (“NOE”) and then the case could be transferred to the SCJ. Accordingly, the case was adjourned to May 4, 2023, to permit the filing of the NOE.

[ 19 ] In my opinion, the delay between April 6, 2023, and May 4, 2023, is attributable to the defence. Under s. 561 (2.1) of the Criminal Code , the accused is to be ordinarily put to his election by being present. The reason the election could not be made on April 6, 2023, was because the applicant was not present, as the agent for Mr. Gorham was appearing based on the designation. Had a written NOE been filed in advance of April 6, the matter could have been moved to the SCJ that much sooner.

May 4, 2023, to June 1, 2023 (28 days):

[ 20 ] The NOE had still not been filed when the charges were addressed again on May 4, 2023. Mr. Bunce advised the court that the applicant was “dealing with some … significant mental health issues” at the time. He requested an adjournment in order to obtain instructions about the mode of trial. Thus, the case was adjourned to June 1, 2023.

[ 21 ] During the appearance, the presiding judge advised Mr. Bunce:

So we need either Mr. Wilson here to be put to his election and … to note his election or we need a read an election form filed saying he wants to have a Superior Court trial without a, without a prelim. So one or the other by June 1 st … and that’s the last adjournment for that.

[ 22 ] The applicant concedes that this period of delay should be characterized as defence delay.

June 1, 2023, to July 6, 2023 (35 days):

[ 23 ] Unfortunately, the NOE had still not been filed by June 1, 2023. Mr. Bunce advised the presiding judge that they would have it filed that week. The judge responded that it should have been filed before that date, and put it over for that purpose to July 6, 2023.

[ 24 ] Wisely, the applicant concedes that this is defence delay.

July 6, 2023, to August 3, 2023 (28 days):

[ 25 ] No one appeared on July 6, 2023, to address this matter. Accordingly, the court issued a warrant for the arrest of the applicant. However, given that someone had been appearing regularly to address the case, the warrant was kept with the file, and the case was adjourned to August 3, 2023.

[ 26 ] Once again, the applicant concedes that this is defence delay.

August 3, 2023, to September 7, 2023 (35 days):

[ 27 ] Mr. Bunce appeared again on behalf of Mr. Gorham on August 3, 2023. He advised that an NOE had been filed that morning, “before court”. Because the NOE had been filed so late, the court clerk did not yet have it. As a result, the charges had to be adjourned again to September 7, 2023.

[ 28 ] The applicant concedes that the resulting delay is defence delay.

September 12, 2023, to September 19, 2023 (7 days):

[ 29 ] When the case was addressed for the next time on September 7, 2023, the court was presided over by a justice of the peace, rather than a judge. The justice of the peace did not feel she had the authority to adjourn the case to the SCJ, so she put it over to September 12, when a judge would be presiding.

[ 30 ] Unfortunately, no one appeared to address the case on September 12. Accordingly, a bench warrant was issued to preserve jurisdiction, and the matter was put over to September 19, 2023.

[ 31 ] Again, the applicant concedes that this is defence delay.

November 20, 2023, to December 8, 2023 (18 days):

[ 32 ] As mentioned above, the charges against the applicant were addressed for the first time in the SCJ on October 6, 2023. On that date, a JPT in the SCJ was confirmed for November 20, 2023, at 2:00 p.m. and the matter was adjourned until then.

[ 33 ] However, when the case was addressed again at the assignment court held on December 8, 2023, a member of the Gorham firm advised the court that counsel had been “tied up in another court”, as a result of which the JPT could not proceed when it was supposed to. Therefore, a second date for the JPT was set for February 13, 2024.

[ 34 ] Although it is not conceded by the applicant, in the absence of an explanation for Mr. Gorham's failure to attend the JPT that might qualify as an exceptional circumstance, this is also defence delay, in my opinion.

June 7, 2024, to August 8, 2025 (427 days ÷ 2 = 213.5 days):

[ 35 ] This case was addressed again on February 16, 2024, shortly after the JPT. The agent appearing for Mr. Gorham was looking for five days for the trial and one day for pre-trial applications (“PTAs”). He was advised by me, presiding as the Local Administrative Judge at that time, that our lists were full for 2024 and 2025. He was also advised that the court would not have additional dates for trial until the assignment court in December 2024.

[ 36 ] The agent was told during that appearance that our region had been waiting for a judicial vacancy to be filled for over a year-and-a-half and that our judicial resources were “stretched to the limit”. I told him that his client “has a remedy”, meaning an application for a stay. Notwithstanding the fact that we did not anticipate being able to set a trial date until December, I adjourned the case to April 12, 2024, in the hope that we might have a judge appointed by then.

[ 37 ] On April 12, 2024, I advised the agent appearing for Mr. Gorham that we had “good news”. I told him that we had an opening in our trial schedule for April 22, 2024. Understandably, counsel was not available on such short notice, and the matter was put over to June 7, 2024, to canvas the possibility of setting the trial for the October 20, 2025, sittings.

[ 38 ] On June 7, 2024, the trial was set for eight days, beginning on October 20, 2025. However, the court was unable to set a date for the PTAs. It was not until November 15, 2024, that March 19, 2025, was set for a voluntariness application by the Crown. Unfortunately, it could not be heard on that date for reasons unrelated to the applicant, so it was adjourned to June 10, 2025, for that purpose. Regrettably, again for reasons unrelated to the applicant, it could not proceed on June 10, 2025, and was adjourned to September 22, 2025, for hearing.

[ 39 ] At my suggestion, the case was addressed again on August 8, 2025, to ensure that the Crown's application was ready to proceed. Although I have not been provided by the applicant with a copy of the August 8, 2025, transcript, the applicant asserts that the agent appearing for Mr. Gorham on that date informed the court of the applicant's intention to file an application under s. 11(b) of the Charter . The Crown concedes this and also concedes that it was again advised on September 22, 2025, of the applicant's intention to apply for a stay. However, no such application was filed until October 15, 2025, and was not properly filed until October 17, 2025.

[ 40 ] In my view, the delay between the date the trial was set, June 7, 2024, and the date the defence first advised the court and the Crown that it intended to bring an application under s. 11(b), August 8, 2025, should be apportioned equally between the parties, for reasons I will explain.

[ 41 ] In R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 1 , the Supreme Court of Canada stressed a point it had made in Jordan that “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time.” At para. 33, the court wrote:

As well, inaction may amount to defence conduct that is not legitimate ( Jordan , at paras. 113 and 121 ). Illegitimacy may extend to omissions as well as acts…. Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently” ( Jordan , at para. 138 ).

[ 42 ] In R. v. J.F. , 2022 SCC 17 , [2022] 1 S.C.R. 330, the Supreme Court elaborated upon this general duty to be proactive as it relates specifically to the timeliness of an accused’s application under s. 11(b). At para. 3, writing on behalf of the majority, Wagner C.J. wrote:

Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner.

[ 43 ] At paras. 34 and 36, the Wagner C.J. continued:

An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected ( Jordan , at para. 85 ). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion … allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.

In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. [Emphasis added.]

[ 44 ] Where delay can be attributed to both the Crown and the defence, such delay may be apportioned between the parties. In R. v. K.J.M. , 2019 SCC 55 , [2019] 4 S.C.R. 39 , at paras. 93-97 , the Supreme Court of Canada apportioned delay that had resulted both from the Crown changing its position regarding a statement made by the accused and by the accused failing to show up on time for his trial. In R. v. Boulanger , 2022 SCC 2 , [2022] 1 S.C.R. 9 , at paras. 9-10 , the Supreme Court of Canada apportioned the delay that resulted from a change in the Crown's strategy, defence counsel's unavailability, and the court's “lack of initiative” in finding earlier dates in an amount that it held was “fair and reasonable” in the particular circumstances of the case.

[ 45 ] The Crown bears responsibility both for case-specific and for systemic delay, including delay caused by a shortage of judicial or other resources: R. v. Perreault , 2020 ONCA 580 , at para. 5 . However, case-specific delay can be much easier for the Crown to mitigate than systemic delay. Where a defendant does nothing to assert his right to trial within a reasonable time under s. 11(b) of the Charter , however, the Crown has no opportunity to mitigate the case-specific delay.

[ 46 ] In this case, the applicant knew how much delay there would be in getting to trial from the moment the trial date was set on June 7, 2024. And yet, notwithstanding my advice on February 16, 2024, about the possibility of bringing an application under s. 11(b), he did nothing to alert the Crown to his concerns until August 8, 2025, 14 months after setting the trial date. I have no trouble concluding that the Crown could have taken steps to mitigate the delay during that period of time, including putting this case ahead of others on running trial lists.

[ 47 ] It is not possible to know precisely what steps the Crown could have taken to mitigate the delay. For this reason, I believe that it is fair and reasonable to apportion the delay equally between the parties.

CONCLUSION

[ 48 ] The total defence delay as attributed above is 455.5 days. Deducting this delay from the total delay of 1,316 days leaves 860.5 days, or 28.3 months. This is less than the Jordan ceiling of 30 months. The applicant does not contend that any sub-ceiling delay is unreasonable.

[ 49 ] Therefore, the application for a stay is dismissed.

M.G. Ellies J.

Released: February 10, 2026

Header (as reproduced in source)

COURT FILE NO.: CR-23-0169

DATE: 2026/02/10

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING Respondent – and – C. W. Applicant REASONS FOR decision ON APPLICATION FOR A STAY OF PROCEEDINGS M.G. Ellies J.

Released: February 10, 2026

[^1]: Immediately after the stay application was dismissed, defence counsel brought an application without notice for further disclosure. Based on the submissions of counsel, I determined that, although woefully late, the application had potential merit. Accordingly, I declared a mistrial and ordered that the defence file a proper disclosure application. The trial has not yet been rescheduled.

[^2]: The overall time frame at issue in this case includes a leap year (2024), in which there is an extra day. Therefore, in order to convert days to months, I have taken the total number of days in four years, including one leap year (1,461), and divided that number by 48 months. In this way, I have arrived at a divisor of 30.44. The difference, if any, in using this number as opposed to the divisor for periods not including a leap year (30.42) is very small.