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Charter - Section 11(b) Trial Delay - Jordan Doctrine
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. R. v. Vrbanic
In R. v. Vrbanic (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Ont CA dismissal, this respecting an earlier OCJ holding that "the respondents’ s. 11(b) Charter rights had been violated and entered a stay of proceedings on their charges".
Here the court starts with a review of early Charter s.11(b) ['trial delay'] doctrine, concluding with the current Jordan doctrine - of which the court still approves:A. Principles Underlying the Jordan Framework
[21] This Court’s decision in Jordan responded to the “culture of complacency” toward delay within the criminal justice system (para. 4). For decades, courts had been applying a multifactorial balancing test to address s. 11(b) claims, as synthesized in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. That balancing test was not working. It was “highly unpredictable”, because it permitted “endless flexibility” that made it “difficult to determine whether a breach ha[d] occurred” (Jordan, at para. 32). It had “turned s. 11(b) into something of a dice roll” and “led to the proliferation of lengthy and often complex s. 11(b) applications, thereby further burdening the system” (para. 32).
[22] And because Morin analyzed delay only after it occurred, that framework was “designed not to prevent delay, but only to redress (or not redress) it” (Jordan, at para. 35). That retrospective orientation encouraged parties “to quibble over rationalizations for vast periods of pre-trial delay”, and those competing explanations licensed “potentially limitless variations in permissible delay” (para. 36). The Morin framework was also unduly complex, requiring careful accounting that Jordan described as “the bane of every trial judge’s existence” (para. 37). It fostered a “culture of complacency” toward delay, inviting parties to condemn or rationalize it at the back end (paras. 40-41). In short, because of its complexity and unpredictability, the Morin framework had, itself, become an obstacle to timely justice (para. 3).
[23] Jordan aimed to create structural incentives for all actors within the justice system to ensure that trials were held within a reasonable time. The presumptive ceilings put in place in Jordan were intended to enhance the “clarity and predictability” of the s. 11(b) analysis, encourage proactive efforts to mitigate delay from all actors within the criminal justice system, and ensure transparency and accountability to the public (para. 108).
[24] As Jordan made clear, these ceilings were never meant to be aspirational targets (para. 56). They are hard limits on the reasonable length of trials. Where the time between the laying of the charge and the actual or anticipated end of the trial exceeds the ceiling set out in Jordan, the burden falls on the Crown to justify the delay. Presumptively, such delay is unreasonable and unconstitutional.
[25] The ceilings are high. The 30 months allowed for trials in superior court is the better part of three years. That represents nearly three years of uncertainty for the accused, who is presumed innocent, waiting for the conclusion of the trial process while potentially in detention or under onerous bail conditions. It also represents nearly three years for the victim and their loved ones, during which time they are often unable to move forward with their lives. Even the 18-month ceiling applying to trials in provincial court represents a long time to wait for justice. The ceilings include neither verdict deliberation time nor the sentencing process, both of which are subject to their own s. 11(b) analyses (Jordan, at para. 47; see also R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364).
[26] Ultimately, the onus rests on actors within the system who have access to the levers of structural power to make the changes necessary to combat systemic delay. This Court, and the courts in general, have an important role to play in avoiding unconstitutional delay and the staying of potentially meritorious criminal proceedings (Jordan, at paras. 114-15; see also R. v. Varennes, 2025 SCC 22, at paras. 82 and 143). Parliament and the provincial legislatures, too, have their part to play in ensuring that Crown offices and courts are adequately funded to provide the human and material resources needed to advance criminal trials in a timely fashion.
[27] Jordan was clear that timely justice is a shared responsibility. The Charter protects the accused’s right to be tried within a reasonable time. It does not entitle the accused to a stay of proceedings. The goal for defence counsel, as for all other actors within the criminal justice system, must be to seek the timely resolution of criminal proceedings in a just manner. Like the courts, the legislatures, and the Crown, the criminal defence bar has a responsibility to combat the culture of complacency and collaborate in good faith with a view to the shared goal of securing justice within a reasonable time.
[28] In a world of finite resources, the Jordan framework constitutes a compromise. It reflects the unavoidable reality that criminal trials take longer in practice than everyone might wish. It balances the public’s interest in seeing criminal trials brought to their proper conclusion on the merits against the constitutional right of accused persons to be tried within a reasonable time.
[29] To achieve this balance, the Jordan ceilings account for two interrelated factors: institutional delay and the inherent time requirements for bringing a case to trial (paras. 52-53). The Jordan ceilings are hard limits on the amount of institutional delay that can be tolerated under the Charter (para. 56). This is why institutional delay cannot justify delay beyond the ceilings (para. 81). Only exceptional circumstances outside the control of the Crown and the state that go to the inherent time requirements for bringing a matter to trial can justify delay beyond the ceilings.
B. The Jordan Framework
[30] The Jordan framework is straightforward. Delay will be presumptively unreasonable where the time between the laying of the charge and the actual or anticipated end of the trial exceeds 18 months for trials in provincial court or 30 months for trials in superior court (or trials in provincial court following a preliminary inquiry) (Jordan, at para. 49).
[31] The accused’s s. 11(b) right is held against the state; where the defence has caused or condoned delay, the right is not engaged. As a result, Jordan requires that delay caused or waived by the defence be subtracted from the total (paras. 60-67). As Jordan makes clear, defence delay does not include time taken up by legitimate defence actions. This kind of delay is already accounted for by the Jordan ceilings and must not be “double counted” by subtracting it as defence delay (see para. 65).
[32] Once defence delay has been identified and subtracted, any net delay in excess of the relevant ceiling will be presumptively unreasonable and so engage the accused’s s. 11(b) right. At this point, the justificatory burden shifts to the Crown. Only exceptional circumstances can justify net delay above the ceiling, because the Jordan framework already makes maximum allowance for chronic institutional delay and for the amount of time it reasonably takes to conduct the ordinary criminal trial.
[33] Jordan makes it clear that the seriousness of the offence cannot justify delay beyond the ceiling; nor can any lack of prejudice to the accused (para. 81). Unless the delay is reasonable in light of case-specific exceptional circumstances, there will be a breach of the accused’s s. 11(b) right every time net delay exceeds the Jordan ceiling.
[34] Jordan did not set out a comprehensive or exhaustive account of exceptional circumstances (para. 71). The justification for net delay over the relevant ceiling is a matter to be assessed on the facts of each particular case, and judges seized of s. 11(b) applications are uniquely positioned and qualified to assess whether delay in a given set of circumstances is reasonable. However, this Court in Jordan described two broad categories of exceptional circumstances that will generally encompass the kinds of considerations capable of justifying net delay over the ceiling. A detailed discussion of the first category, discrete exceptional circumstances, can be found in this Court’s decision in R. v. Jacques-Taylor, 2026 SCC 20, released contemporaneously with these reasons. The second category of exceptional circumstances is case complexity.
[35] Before moving on to review case complexity — the principal issue in this appeal — it is important to note that the Jordan framework does not foreclose a finding that s. 11(b) has been breached even where the net delay, once all justifiable subtractions have been made, does not exceed the ceiling. However, this will be possible only where the defence can establish a clear case of unreasonable delay (see Jordan, at paras. 82-91). . R. v. Jacques-Taylor [2026 Jordan summary - IMPORTANT]
In R. v. Jacques-Taylor (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against an Ontario Court of Appeal ruling that upheld an Ontario Court of Justice Charter s.11(b) ['trial delay'] stay of proceedings.
Here the Supreme Court of Canada in 2026 summarizes the Charter 11(b) 'Jordan framework':A. The Jordan Framework
[24] Section 11(b) of the Charter guarantees the right of all persons who are “charged with an offence” to be tried “within a reasonable time”. As the Court noted in Jordan, the primary purpose of s. 11(b) is to ensure that presumptively innocent accused persons’ rights to liberty, security of the person, and a fair trial are respected (para. 20). However, that is not all. Section 11(b) also serves a broader collective purpose: to advance both victims’ and society’s collective interests in speedy trials, thereby ensuring that public confidence in the administration of justice is maintained (paras. 22‑28).
[25] The right guaranteed by s. 11(b) is engaged from the moment a person is charged with an offence and is thereby subject to criminal proceedings (R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 23; R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at paras. 11‑13; R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1602). The counter begins running from the moment that charges are laid and stops at the actual or anticipated conclusion of the trial, i.e., the moment that the case is turned over to the trier of fact (J.F., at para. 27; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 31).
[26] In Jordan, the Court identified two distinct ceilings beyond which delays are presumptively unreasonable: (1) a ceiling of 18 months for trials that take place before a provincial court; and (2) a ceiling of 30 months for trials that take place before a superior court or, alternatively, before a provincial court following a preliminary inquiry (J.F., at para. 26; Jordan, at para. 46).
[27] The application of the framework is straightforward.
[28] At the first step of the Jordan framework, the court must calculate the delay from the moment the accused is charged with an offence to the actual or anticipated end of trial (para. 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 21). This is the “gross delay”. The court must then subtract from the gross delay any delay that is attributable to the defence. This leaves the “net delay”. Delay will be attributable to the defence where (1) a specific period of time has been waived by the defence or (2) the defence has caused the delay.
[29] A period of delay will be attributable to the defence where the accused has waived it. Waiver may be made expressly or implicitly, though it is essential that it always be clear and unequivocal (Jordan, at para. 61; J.F., at para. 47). Importantly, waiver applies only to the specific circumscribed period that is waived, and not to the accused’s right under s. 11(b) of the Charter in general (Jordan, at para. 61; J.F., at para. 46).
[30] A period of delay will also be attributable to the defence where the defence is the sole or direct cause of that delay (Jordan, at para. 66). This is often referred to as “defence delay”. Defence delay includes any period of delay that results from conduct that is undertaken for an illegitimate or unjustifiable purpose, such as dilatory tactics and frivolous applications (Jordan, at para. 63; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227‑28). It also includes delays that are occasioned by the defence’s unavailability where both the Crown and the court were ready to proceed (Jordan, at para. 64).
[31] However, defence delay does not include delays that result from conduct that is both legitimate and reasonable under the circumstances (Jordan, at para. 65; Boulanger, at paras. 5‑6). Furthermore, delays for which the defence is not solely responsible but to which it has contributed may be apportioned between the Crown and the defence. This may be done where it is fair and reasonable to do so under the circumstances (Boulanger, at paras. 8‑10; Hanan, at para. 9).
[32] I pause here to note that the circumstances encompassed in defence delay are neither predefined nor limited. Determining whether the defence has caused a given period of delay — be it in whole or in part — requires a contextual and fact‑driven analysis (Jordan, at paras. 64‑65). Equally, whether the conduct is illegitimate or not will often depend on the circumstances. Conduct may be legitimate under certain circumstances, but not under others. It is therefore impossible, and in fact undesirable, to attempt to enumerate the circumstances under which a delay may be considered defence delay. Trial judges should rely upon their common sense, experience, and knowledge of their own jurisdiction in making these determinations.
[33] Once any period of delay waived by the defence and defence delay are subtracted from the gross delay, if the net delay exceeds the presumptive ceiling of 18 or 30 months, then it is presumed to be unreasonable. If, to the contrary, the net delay falls below the ceiling, then it is presumed to be reasonable.
[34] Because the ceilings are presumptive, either party can argue that the delay is reasonable or unreasonable at the second step of the Jordan framework (J.F., at para. 68; Cody, at paras. 22‑25; Jordan, at paras. 47, 67‑68 and 82‑83). The onus falls on the party against whom the presumption applies (Jordan, at paras. 46‑48 and 105; Cody, at paras. 23‑25). Notwithstanding, in both cases, the presumption is not easily rebutted (Jordan, at paras. 56 and 83).
[35] In the case of a presumptively unreasonable delay, the onus lies with the Crown to rebut the presumption in one of two ways (Jordan, at para. 56; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 82). First, it may demonstrate that certain periods of delay constitute “discrete exceptional circumstances” and must be deducted from the net delay. Should these deductions lower the net delay below the ceiling, the delay will become presumptively reasonable once again. In the alternative, the Crown may argue that the case can be characterized as “particularly complex”, such that a delay greater than 18 or 30 months is reasonable (Jordan, at para. 80).
[36] The apparent simplicity of these two exceptions belies some of the real difficulties that their application has posed for courts in the decade since the release of Jordan. Some courts have struggled to properly construe the notions of “exceptionality” and “complexity”, often favouring an overly narrow interpretation of the exceptions under Jordan. The case complexity exception is fully canvassed in the Court’s decision in R. v. Vrbanic, 2026 SCC 19. Given that this appeal raises only the issue of discrete exceptional circumstances, I will limit my comments to how the notion of “exceptionality” ought to be construed.
[37] The Court held in Jordan that discrete exceptional circumstances are specific periods of delay that lie outside the Crown’s control (para. 69). It follows that (1) they are either reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. At its heart, the inquiry is focused on the reasonableness of the measures taken by the Crown to both obviate and promptly deal with the various difficulties that can arise in the course of any criminal proceeding. It appears, however, that courts have on occasion been reluctant to conclude that a particular event amounts to a discrete exceptional circumstance on the basis that it is not sufficiently rare. This is not the proper approach.
[38] At first blush, the notion of “exceptionality” may call to mind the idea of “rarity”. However, exceptionality should not be interpreted in this manner. Exceptional circumstances can and do arise frequently. While rare events can amount to discrete exceptional circumstances, rarity is not a sine qua non of exceptionality. As Jordan states clearly, events fall into the category of “exceptional circumstances” where they are (a) reasonably unforeseen or (b) reasonably unavoidable. Nowhere is it mentioned that they must occur only rarely or infrequently. In truth, what makes these events “exceptional” is that they “lie outside the Crown’s control” (Jordan, at para. 69 (emphasis deleted)). As the Alberta Court of Appeal put it, “[d]iscrete events are those that disturb the normal course of the matter and which no one . . . could reasonably mitigate” (R. v. Klassen, 2018 ABCA 258, 72 Alta. L.R. (6th) 282, at para. 89). Our Court did not intend for this understanding of “exceptionality” to be equated with “rarity”. This was made abundantly clear when our Court noted that exceptional circumstances “need not meet a further hurdle of being rare or entirely uncommon” (Jordan, at para. 69). Moreover, that rarity was not intended to be equated with exceptionality is readily apparent from our Court’s reliance on relatively mundane examples to illustrate what may amount to discrete exceptional circumstances. For instance, the Court cited medical or family emergencies and trials that go longer than the parties reasonably could have predicted as discrete exceptional circumstances (paras. 72‑73). Such difficulties, while they do not occur in every prosecution, are far from rare. Courts should adopt a broader interpretation of what constitutes discrete exceptional circumstances because they can and do arise regularly. . R. v. Agpoon
In R. v. Agpoon (Ont CA, 2023) the Court of Appeal considered three Crown appeals from Charter s.11(b) undue trial delay cases, here where the delay occured during the COVID pandemic. In these quotes the court reviews principles from the leading R v Jordan (SCC, 2016) case, particularly on the treatment of COVID as a delay factor:[3] A person charged with an offence has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated the remedy is a stay of the charges. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court prescribed how lower courts must assess delay in determining whether the right to be tried within a reasonable time has been violated and whether charges should be stayed.
[4] Jordan was not written with a phenomenon like the pandemic in mind, but its principles are adaptable. Jordan recognized that delay attributable to “exceptional circumstances” could be acceptable: at para. 68. The trial judge observed correctly that “[n]umerous rulings have considered the impact of the global pandemic in the context of s.11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.”
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(1) The Jordan Governing Principles
[19] The pandemic falls within a category of “discrete exceptional circumstances” laid out in Jordan, which the court defined, at para. 69: “[e]xceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original). This is the “only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling”: Jordan, at para. 81. The court acknowledged, at para. 72, that medical emergencies could qualify as a discrete exceptional circumstance. Although this comment was made in the context of individual medical emergencies, in our view it can be, and should be, generalized for the pandemic.
[20] Jordan imposed certain conditions on the Crown. For example, the burden is put on the Crown to show that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: at para. 70 (emphasis in original). But this was clearly impossible in the case of the pandemic. Further, the court referred to the Crown’s obligation to make efforts to mitigate the delay resulting from a discrete exceptional circumstance, noting, at para. 75, that “within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”. This principle applies to dealing with the backlog of cases in the emergence of the justice system from the pandemic.
[21] In our view, there is a systemic perspective within which the pandemic must be seen. The Jordan court said, at para. 103, “[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.” The surrounding circumstances here are systemic.
[22] We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, “trial judges should not parse each day or month… [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[23] We take seriously the observation by McLachlin J., as she then was, at p. 810 of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, which the Jordan court approved at para. 111: “…we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay”. Accordingly, the court said in Jordan that “[a] framework that is simpler to apply is itself of value.” This informs the framework we establish below.
[24] There are several ancillary principles. If the period of calculated delay is below the applicable presumptive ceiling – 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice – then the onus switches to the defence, which “may still demonstrate in clear cases that the delay is unreasonable”: Jordan, at para. 76. The court added, at para. 82:[If the total delay is below the presumptive ceiling] then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. [Emphasis in original.] [25] The Jordan court added, at para. 85: “it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.”
[26] Finally, there is the local perspective. The Jordan court noted the need for trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: at para. 89; see also paras. 87 and 101. This instruction applies with necessary modifications to the assessment of pandemic-related delay for Jordan purposes.
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(3) The Application of Jordan Principles to Pandemic Delays Going Forward
[33] Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.
[34] This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis. . R. v. J.S. [time limits]
In R. v. J.S. (Ont CA, 2024) the Ontario Court of Appeal consider a Charter s.11(b) trial delay issue, here focussing on 'exceptional circumstances' which may allow the standard trial duration ["18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice": R. v. Agpoon (Ont CA, 2023)] to be exceeded:(a) Discrete exceptional circumstances
[65] Jordan makes clear that exceptional circumstances are ones that lie outside of the Crown’s control because they are: “(1) reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original): Jordan, at para. 69. Therefore, it is a two-part test.
[66] As recognized in Jordan, trials are “not well-oiled machines” and “if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance”: at para. 73.
[67] That is precisely what happened here. Although the parties made a good faith effort to establish realistic time estimates, things went awry when H.W. initially rejected the accuracy of the recording of his police statement. To use the expression from Jordan, this trial experienced an “unavoidable development” that caused it to “quickly go awry leading to delay”: Jordan, at 73. In other words, the first part of the exceptional circumstances test is met.
[68] The focus therefore shifts to what reasonable efforts the Crown took to respond and attempt to bring the trial in under the ceiling.
[69] Assessing whether the steps taken by the Crown were reasonable in the circumstances known at the time is a different exercise than asking whether, looking backwards, an alternative litigation plan could be envisaged — one with different choices about what witnesses should have been called and when. Rather, the relevant inquiry is whether the Crown acted reasonably to remedy the delay once the unforeseen circumstances arose: Jordan, at paras. 69, 74. With respect, the summary conviction appeal judge went beyond the proper scope of the relevant inquiry.
[70] The record in this case makes clear that the trial Crown took her responsibilities most seriously and did everything in her power to mitigate the delay once the problem arose. As previously noted, the trial was entirely on track — if not ahead of schedule — until the problem arose. Indeed, at the end of the second day of trial, the trial Crown expressed the view that she would close her case by November 7, 2019. By all accounts, she had a reasonable litigation plan and was executing on it. And, once the difficulty with H.W.’s evidence arose, she responded reasonably as events unfolded.
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[75] In summary, the two-part test for discrete exceptional circumstances was satisfied. Although not ideal, this justifies a delay of more than two months, which would bring the matter under the 18-month ceiling. Indeed, this court has previously concluded that a delay of 4.5-months to reschedule a matter after an exceptional circumstance arose, around the same amount of time as this case, was not “sufficiently long to render unreasonable” the conclusion that the entire time should be attributed to delay caused by discrete exceptional circumstances: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 49, 54-58. . R. v. H.B.
In R. v. H.B. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal s.11(b) ['trial delay'] appeal, here brought against convictions for "sexual assault, sexual interference, invitation to sexual touching and possession of child pornography":II. General Principles
[8] The framework for assessing unreasonable delay under Jordan requires the calculation of net delay. Net delay is calculated by subtracting defence delay from total delay. The net delay is then compared with the presumptive ceiling. For matters proceeding in the provincial courts, the presumptive ceiling is 18 months.
[9] If the net delay is below the presumptive ceiling, the delay is presumed reasonable. If the net delay exceeds the presumptive ceiling, the delay is presumed unreasonable. The Crown bears the onus of rebutting this latter presumption, by showing that exceptional circumstances exist: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 7, leave to appeal refused, [2018] S.C.C.A. No. 325.
[10] This appeal turns on the meaning of defence delay. Defence delay arises from an explicit or implicit waiver that is clear and unequivocal, or where delay is caused solely or directly by the defence’s conduct. This includes tactical choices that delay the trial, such as frivolous applications and requests: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 44.
[11] Periods of time during which the court and the Crown are prepared to proceed, but the defence is not, also qualify as defence delay: Jordan, at paras. 63-64. However, when defence counsel rejects a date offered by the court, there is no bright-line or automatic rule that all delay incurred until the next available date necessarily constitutes defence delay. The relevant circumstances should be considered to determine how delay should be apportioned among the participants: R. v. Hanan, 2023 SCC 12, [2023] 1 S.C.R. 467, at para. 9.
[12] Legitimate actions taken by the defence to respond to the charges, such as taking time to prepare and bring non-frivolous applications and requests, are not properly characterized as defence delay: Jordan, at paras. 64-65.
[13] Lastly, this court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct such as late disclosure, even where such conduct is not deliberate: see, e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303, at paras. 20-22.
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[35] Recall that Jordan holds that defence delay is a period of delay that is either waived by the defence or solely or directly caused by the defence. Here, the court initially offered two consecutive dates (August 13-14, 2019) which were then only thirteen days away. The next date offered was not until several months later, on December 9, 2019. No court dates were offered between August and December. It was therefore simply not possible for the defence to make itself available on a different date before December 9, 2019. As such, this delay was not solely attributable to the defence. The court’s unavailability was a major contributor to delay over this period.
[36] As the Supreme Court of Canada has held, in cases such as this one, all relevant circumstances must be considered. In Hanan, at para. 9, Côté and Rowe JJ. stated:[W]e reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence”. Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable”. All relevant circumstances should be considered to determine how delay should be apportioned among the participants.” [Citations omitted.] This approach was recently applied by this court in R. v. Qureshi, 2026 ONCA 20.
[37] When the defence rejects an available date, Hanan directs courts to consider all relevant circumstances so as to apportion the ensuing delay fairly and reasonably among the participants, rather than simply ascribing it entirely to the defence. The application judge failed to do that here – though, in fairness, Hanan was not available to him at the time of his decision.
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[41] While I acknowledge that the application judge was in a good position to assess the defence’s conduct here, there is no suggestion that the defence’s unavailability on August 13-14, 2019 was illegitimate. There appears to be no appellate authority holding that counsel must indicate, much less ‘prove’, the reason for their unavailability for specific dates: see R. v. Dunnett, 2025 ONCA 392, 177 O.R. (3d) 430, at para. 35, leave to appeal refused, [2025] S.C.C.A. No. 342.
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[56] While the defence certainly bore some responsibility for the delay in completing these applications, I agree with the appellant that the defence was not solely responsible for the January 14 to February 25, 2020 period. In my view, there were multiple causes of this delay. Consistent with the contextual approach directed by Hanan, I would find that the delay should be apportioned equally between the defence, on one hand, and the Crown and the court, on the other.
[57] An apportionment of this sort accords with the approach taken in a number of appellate decisions: see R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 10; R. v. M.E., 2025 ONCA 729, at para. 26; R. v. Jones, 2025 ONCA 103, 176 O.R. (3d) 81, at paras. 31-37; and Qureshi, at para. 41. In my view, it is also appropriate in the context of this case, for the following reasons.
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