Simon's Legal Resources

Charter - Section 11(b) Trial Delay - Appeals

. 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 considers the appellate SOR for Charter s.11(b) ['trial delay'] issues, particularly issues of case complexity:

(1) Standard of Review

[83] The ultimate determination of whether delay is unreasonable and the accused’s s. 11(b) right has been breached is a question of law reviewable for correctness (R. v. Pauls, 2020 ONCA 220, 453 D.L.R. (4th) 193, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para. 2). An application judge’s factual findings, and their application of the law to the facts, attracts review on the deferential standard of palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 28).

[84] The assessment of case complexity, including the determination of whether the Crown made reasonable efforts to mitigate delay, is a question of mixed fact and law “well within the trial judge’s expertise” and is accordingly entitled to deference (Jordan, at para. 79). Where an application judge’s analysis is affected by an extricable legal error, no deference is owed to the judge’s conclusions (Housen, at para. 37).

. R. v. Jacques-Taylor [SOR]

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 court considers the appellate SOR for Charter s.11(b) ['trial delay'] issues:

IV. Standard of Review

[23] The characterization of delay and the ultimate decision concerning the unreasonableness of delay are questions of law. Therefore, they are reviewed according to the correctness standard. However, underlying findings of fact invite deference, absent palpable and overriding error (Boulanger, at para. 4; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d 2021 SCC 2, [2021] 1 S.C.R. 5, at paras. 2‑3).

. R. v. Hawke

In R. v. Hawke (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this regarding whether "the application judge erred in failing to stay 37 human-trafficking related charges against the appellant under ss. 24(1) and 11(b) of the Charter for violating the appellant’s right to a trial within a reasonable time".

The court considers the SORs applicable to Charter s.11(b) ['trial delay'] situations:

1. Standard of Review

[15] Characterization of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness. However, the application judge’s underlying findings of fact are reviewable on a standard of palpable and overriding error: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para. 2; R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused [2018] S.C.C.A. No. 325. Absent an error in principle, the application judge’s assessment of whether exceptional circumstances exist are factual inquiries subject to deference on appeal, including: i) whether a period of delay flows from a discrete event and whether the Crown took reasonable steps to mitigate that delay, and ii) of the complexity of a case and whether the Crown implemented and followed a concrete plan to minimize delay: R. v. Majeed, 2019 ONCA 422, at paras. 10-11; R. v. Mengistu, 2024 ONCA 575, at para. 14; Ontario (Labour) v. Nugent, 2019 ONCA 999, at paras. 24, 27-28, leave to appeal refused [2020] S.C.C.A. No. 53; R. v. Morash, 2021 ONCA 335, at para. 35.

. R. v. Ibrahim

In R. v. Ibrahim (Ont CA, 2026) the Ontario Court of Appeal considered appellate deference regarding Charter s.11b ['tried within a reasonable time'] issues:

[3] The proper characterization of delay and whether there has been unreasonable delay is reviewable on a standard of correctness. The underlying factual determinations are owed deference: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.

. R. v. Long

In R. v. Long (Ont CA, 2023) the Court of Appeal considered the appellate standard of review for criminal 'trial delay' appeals [under Charter s.11(b)], here as it relates to fresh law on appeal:

(a) Appellant’s Ability to Raise New Argument on Appeal

[36] For the following reasons, I conclude that it is open to this court to consider the appellant’s new argument on appeal.

[37] The designation of periods of delay is a matter of law, attracting a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.

[38] It is well established that on an appeal from a decision on a s. 11(b) application, this court is not bound by erroneous concessions: R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at para. 63; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 31; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19; R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 10; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 102; and R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 71.[3] The rationale for refusing to be bound is grounded in the standard of review: we are to determine whether the trial judge’s delay designations were legally correct.

[39] A review of the transcript of proceedings shows that counsel mistakenly understood that the delay between November 16, 2018 (when the charges were first laid) and June 16, 2020 (when the trial was to end) was under 18 months when in fact it was not.

[40] Given the standard of review, this court is not bound by defence counsel’s erroneous calculation that the matter was under the 18-month presumptive ceiling. This is a reflection of the principle that the designation of periods of delay is a matter of law, attracting a standard of correctness.

. R. v. Mengistu [SOR]

In R. v. Mengistu (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown criminal appeal, here regarding Charter s.11(b) ['trial delay'] and it's appellate standard of review:

[14] While the ultimate decision as to whether there has been unreasonable delay and the characterization of periods of delay are subject to a standard of correctness on review, the application judge’s findings of fact that underpin that analysis are reviewable on a standard of palpable and overriding error: R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 14; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, leave to appeal refused, [2019] S.C.C.A. No. 423, at para. 73. In particular, the assessment of whether a period of delay flows from a discrete event, and whether the Crown took reasonable steps to mitigate that delay, are fact-driven and therefore owed a high degree of deference: R. v. Safdar, 2021 ONCA 207, 403 C.C.C. (3d) 91, aff’d 2022 SCC 21, 414 C.C.C. (3d) 147, at paras. 46-51; Jordan, at para. 71.

. R. v. Dos Santos

In R. v. Dos Santos (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from convictions for "sexual assault and extortion".

Here the court considers the SOR for criminal Charter s.11(b) trial delay issues:

[19] The applicable standards of review are well-settled. For the s. 11(b) ruling, the application judge’s characterization of periods of delay and ultimate determination of whether the delay was unreasonable are reviewed for correctness. However, underlying factual findings and determinations that exceptional circumstances exist are reviewed on a deferential standard unless tainted by legal error: R. v. Zahor, 2022 ONCA 449, at para. 79. The second trial judge’s response to the Crown’s question about child pornography is also owed substantial deference: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at paras. 126-27; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 38.

. R. v. Hillier

In R. v. Hillier (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against "a stay of proceedings entered pursuant to s. 24(1) [SS: 'Remedies'] of the Charter for a violation of the respondent’s s. 11(b) right to be tried within a reasonable time".

Here the court considered the SOR for Charter s.11(b) ['trial delay'] issues:

[32] On appeal from an order made on a s. 11(b) application, deference is owed to a trial judge’s underlying findings of fact, while characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para. 2.

[33] A trial judge’s determinations about what occurred and how that is to be understood in the local context constitute findings of fact that are owed a high level of deference on appeal. These determinations are reviewed on a standard of palpable and overriding error: R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, at paras. 6, 54, leave to appeal refused, [2024] S.C.C.A. No. 41.

[34] First, I will deal with the defence delay ground of appeal. Then I will turn to the ground of appeal that determines the result of this appeal: that the application judge erred by declining to attribute additional days to the exceptional circumstance posed by the release of the Haevischer decision, after concluding that the Crown had not taken reasonable steps to have the motion rescheduled promptly.