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Charter - Section 11(b) - Trial Delay - Complex Case Exceptional Circumstances. 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 case complexity as a Charter s.11(b) ['trial delay'] 'exceptional circumstance':C. Case Complexity Under Jordan
[36] The case complexity exception recognizes that certain cases, because of their inherent time requirements, cannot reasonably be completed within the presumptive ceilings. The exception applies to cases that are “particularly complex” because the nature of the evidence or issues requires an inordinate amount of preparation or trial time (Jordan, at para. 77). However, the exception will not apply where the Crown has failed to develop and follow a concrete plan to minimize delay associated with a case’s complexity (para. 79).
[37] Case complexity involves a qualitative rather than a quantitative assessment; it does not result in the deduction of any specific period of delay (R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64). Where net delay exceeds the relevant presumptive ceiling after defence delay and any discrete exceptional circumstances have been accounted for, a case’s particular complexity may justify the time it has taken.
[38] The case complexity exception is sufficiently flexible to account for changes in the average complexity of criminal trials. In Jordan, this Court referenced the “[n]ew offences, procedures, obligations on the Crown and police, and legal tests” that had emerged since Morin, remarking that these developments required additional court time and resources (para. 42). The same point can be made about the jurisprudential, legislative, and technological developments, canvassed below, that have occurred in the 10 years since this Court decided Jordan. Given the impact of these developments, it is worth clarifying the case complexity exception. These clarifications will elaborate the structure of the analysis and refine our guidance about the types of cases that will meet the “particularly complex” threshold.
[39] The case complexity analysis comprises two stages. At the threshold stage, a court considers whether the Crown is entitled to rely on complexity as a justification for delay in excess of the ceiling. At this stage, a court determines whether a case is particularly complex, such that delay beyond the ceiling is prima facie justifiable, and whether the Crown has taken reasonable steps to mitigate delay. Only where both questions are answered in the affirmative will the analysis proceed to the second stage. At the justification stage, a court considers whether the net delay is justified in light of the complexity of the case.
(1) Threshold Stage: Is There Particular Complexity, and Has It Been Reasonably Managed by the Crown?
[40] The Crown must prove two elements at the threshold stage: (1) that the case is particularly complex; and (2) that the Crown has taken reasonable steps to proactively mitigate the delay occasioned by the case’s particular complexity (Jordan, at paras. 77 and 79). Recall that case complexity is an exceptional circumstance that must lie outside of the Crown’s control. Jordan makes it clear that cases of ordinary complexity are not exceptional and thus cannot justify delay over the relevant ceiling. Similarly, where the Crown has not reasonably and proactively mitigated delay, complexity is no excuse for exceeding the Jordan ceiling (para. 79).
(a) Is the Case Particularly Complex?
[41] Only a case of “inordinate” or “exceptional” complexity can justify exceeding the ceiling. This is because the Jordan framework accounts for the inherent time requirements of the ordinary criminal trial. For this reason, a particularly complex case is one that, because of the nature of the evidence or the issues, required or can reasonably be expected to require an inordinate or exceptional amount of preparation or trial time (see Jordan, at para. 77).
[42] Such particularly complex cases will not necessarily be rare (Jordan, at para. 69). Since Jordan was decided in 2016, criminal trials and pre-trial procedures have increased in complexity as a result of jurisprudential and legislative developments. For example, the recognition that an accused may have a reasonable expectation of privacy in their text messages and IP address has resulted in a greater need for judicial authorizations and in additional applications under s. 8 of the Charter (see R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608; R. v. Bykovets, 2024 SCC 6). Similarly, this Court has recently recognized the increasing complexity of sexual offence trials (R. v. Kinamore, 2025 SCC 19, at para. 1). The Crown and several interveners also point to mounting reliance on electronic evidence in criminal proceedings, which increases the time required to prepare disclosure and can raise complex questions of admissibility either before or during trial.
[43] Legislative developments have also led to greater complexity. These include the 2018 amendments to the Criminal Code, R.S.C. 1985, c. C‐46, that created additional procedures and criteria governing the admission of a complainant’s records (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29). Applications concerning such proceedings are increasingly frequent and contribute to the complexity of many otherwise ordinary sexual offence prosecutions.
[44] In light of these developments, more cases may be capable of engaging the case complexity exception.
[45] Jordan instructs application judges to consider the nature of the evidence and the issues involved when assessing whether a case is particularly complex (para. 77). Judges should consider several, non-exhaustive hallmarks of complexity at this stage of the analysis:. voluminous disclosure;
. large number of witnesses;
. significant requirements for expert evidence;
. charges covering a long period of time;
. large number of charges;
. large number of pre-trial applications or motions requiring separate court dates and/or judicial reasons;
. novel or complex legal issues;
. large number of significant issues in dispute;
. joint proceedings against multiple co-accused. [46] This is not a closed list. Application judges are well placed to recognize other features of a case that may render it particularly complex. Further, the features listed above can indicate particular complexity, but will not reach the threshold every time one or more are present in a particular case. Importantly, these features indicate complexity only where they increased or can be expected to increase the amount of time required to bring a case to trial. Without a demonstrable connection to the inherent time requirements of a case, these hallmarks of complexity cannot render a case particularly complex.
[47] These hallmarks of complexity must be considered in the context of the case as a whole, from the initial laying of charges to the actual or anticipated end of the trial (R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at para. 37). A case may not be factually or legally complicated but may still meet the “particularly complex” threshold where it involves a multiplicity of pre-trial proceedings or numerous co-accused.
[48] Similarly, complexity can arise from any stage of a prosecution — whether it be the process of marshalling disclosure, preparing for and conducting pre-trial motions and applications, or the trial itself, which may involve voir dires or other subsidiary proceedings. Equally true, complexity need not arise from all stages of the prosecution. Indeed, it is common for major cases to decrease in complexity by the time they reach trial, as disclosure is completed and issues are narrowed or resolved. As the Ontario Court of Appeal observed in R. v. Picard, 2017 ONCA 692, 354 C.C.C. (3d) 212:A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial. . . .These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial. [para. 62] In this sense, complexity at the outset of a prosecution may be sufficient to render a case particularly complex, even where the case becomes more streamlined as it approaches trial (R. v. Chan, 2019 ABCA 82, 82 Alta. L.R. (6th) 1, at para. 29).
[49] In Jordan, this Court explained that a “typical murder trial” will generally not meet the “particularly complex” threshold (para. 78). This recognizes two important points: first, the Jordan ceilings account for the time it takes to bring an “ordinary” case to trial; and, second, the seriousness of the offence cannot in itself establish case complexity (para. 81). For example, many sexual assault trials involve applications under s. 276 or s. 278.92 of the Criminal Code. The fact that a trial involves such applications will not ordinarily render the case particularly complex. However, where the nature of the evidence or the issues involved in the application requires an inordinate amount of preparation or hearing time, an application under the s. 276 or s. 278.92 regimes might meet the threshold of particular complexity. Similarly, a case raising new or expanded privacy issues under s. 8 of the Charter that require several pre-trial applications (like Garofoli applications) or voir dires may, though will not always, meet the threshold of particular complexity.
[50] Of particular relevance to the facts of this case, complexity is frequently invoked where the Crown initiates a project prosecution following an expansive investigation, involving considerable disclosure and numerous co-accused. Given the “sheer size” of many of these cases, and the increased time they take to organize and advance, a case that forms part of a project prosecution may be capable of meeting the threshold of particular complexity even where other features of the case, considered in isolation, would not meet the threshold (C. de Sa, “Understanding R. v. Jordan: A New Era for s. 11(b)” (2018), 66 Crim. L.Q. 92, at p. 97).
[51] Ultimately, as this Court observed in Jordan, the question of whether a case is particularly complex is one falling within an application judge’s expertise (para. 79). In light of their experience, application judges are well suited to evaluate whether the features of a case render it “inordinately” or “particularly” complex, in line with the guidance provided above. As I have explained, the hallmarks of complexity are not checkboxes that, once ticked, automatically indicate particular complexity. Case complexity is never presumed; like any exceptional circumstance, the Crown must establish complexity in each individual case (Jordan, at para. 68).
[52] In summary, the Crown must demonstrate that a case is particularly complex to satisfy the first element of the threshold stage. The analysis is focused on the case as a whole and looks at whether any of the aforementioned hallmarks of complexity are present. Where a court is not satisfied that a case is particularly complex, the analysis ends there. Conversely, where a court is satisfied that a case is particularly complex, it must then ask whether the Crown has taken reasonable steps to proactively mitigate delay.
(b) Has the Crown Proactively Mitigated the Delay Occasioned by Complexity?
[53] The second element of the threshold analysis will be satisfied where the Crown has taken reasonable steps to proactively mitigate delay. As this Court explained in Jordan, an application judge will need toconsider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. [para. 79]
(See also Cody, at paras. 63-64.) Reactive steps to minimize delay will not, on their own, suffice (R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 98).
[54] The Crown is held to a standard of reasonableness, not perfection. However, upon initiating what could reasonably be expected to be a complex prosecution, the Crown must ensure, for example, that it has assigned sufficient resources to the prosecution, devoted adequate time to disclosure management, promptly resorted to case management processes to streamline the proceedings, and, where appropriate, organized the co-accused into tailored prosecution groups (R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 308).
[55] Ultimately, an application judge must consider all relevant circumstances when assessing whether the Crown has met its obligation to take reasonable steps to proactively mitigate delay. These circumstances include not only the Crown’s conduct in taking steps to proactively mitigate delay, but also the reasonableness of the defence’s conduct in cooperating to advance the case in a reasonable time.
[56] The Jordan framework relies on cooperation from the various actors in the criminal justice system to ensure that the shared goal of timely justice is achieved (paras. 5, 41, 45, 116 and 137). The accused is entitled to trial within a reasonable time; the goal of all justice system participants, including defence counsel, must be to facilitate the vindication of this right. As Jordan makes clear, s. 11(b) of the Charter is not “intended to be a sword to frustrate the ends of justice” (para. 21, citing Morin, at pp. 801-2). The defence is well within its rights to avail itself of all legitimate strategic advantages available at law (Jordan, at para. 65). Defence counsel must zealously advocate for their client’s interests while holding the Crown to its burden of proof (Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772). At the same time, defence counsel are officers of the courts and are expected to cooperate with good faith efforts by the Crown and the courts to proceed expeditiously to trial on the merits. In some cases, defence action or inaction that frustrates the Crown’s efforts to proactively minimize the delay occasioned by complexity may warrant counting ensuing delay as defence delay. But even where defence action or inaction does not rise to this level, it nevertheless bears on the reasonableness of the Crown’s efforts to mitigate delay.
[57] Where the Crown’s implementation of its plan to mitigate delay has failed, an application judge must inquire as to why and determine whether the failure stems from unreasonableness on the part of the Crown or from other causes, including a failure by defence counsel to reasonably facilitate the Crown’s efforts. Where defence action or inaction has frustrated the Crown’s reasonable efforts, the Crown may be capable of establishing the element of proactive mitigation notwithstanding its failure to successfully implement its plan.
(2) Justification Stage: Does the Case’s Complexity Justify the Delay?
[58] If the threshold stage is met — that is, if the case is particularly complex and the Crown has taken reasonable proactive measures to mitigate delay — the analysis proceeds to the second stage. At this stage, the application judge considers whether the net delay is justified in light of the complexity of the case. While the threshold stage is binary — the case either is or is not particularly complex and either has or has not been reasonably managed by Crown — this stage of the analysis focuses on the specific amount of delay and the degree of complexity. A case could be complex enough to justify some delay over the ceiling but insufficiently complex to justify the actual net delay where it is particularly long.
[59] This is a reasonableness analysis well within the experience of an application judge. Judges should avoid unduly emphasizing the actual amount of net delay over the ceiling. Even one day of net delay over the Jordan ceiling must be justified by the case’s exceptional complexity, and even where the threshold stage is met, s. 11(b) may still be breached if the complexity is insufficient to justify the actual delay. To find otherwise would be contrary to the rationale for the Jordan ceilings.
[60] Another consideration for judges is the lower ceiling in provincial court. In Jordan, this Court followed Morin in setting a lower presumptive ceiling for proceedings in provincial court than for those in superior court. Implicitly, this choice rests on the premise that cases proceeding in superior court are more likely to be complex and involve greater institutional delay. It was accordingly reasonable to expect that they would take longer.
[61] Developments in the law since Jordan have undermined this rationale to some extent. As noted by some of the interveners, 2019 amendments to the Criminal Code eliminated preliminary inquiries for certain offences (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25).
[62] Lower courts have raised concerns that cases that might previously have been decided in superior court, or in provincial court following a preliminary inquiry (and thus under the 30-month Jordan ceiling), are now being decided in provincial court under the 18-month ceiling. For example, the Ontario Court of Justice suggested in R. v. Fraser, 2022 ONCJ 580, that some accused persons might strategically elect to proceed in provincial court to benefit from the lower Jordan ceiling (paras. 28-31). Similar comments were made in Lapointe v. R., 2019 QCCQ 3099:[translation] The concept of a “particularly complex case” cannot be the same under an 18-month ceiling in provincial court as it is under a 30-month ceiling either in provincial court with a preliminary inquiry or in superior court. Without some modulation of this concept, a case that would not be particularly complex under a 30-month ceiling would not be so under an 18-month ceiling either. The qualitative review done by the Supreme Court in Jordan that led to the distinction between these two ceilings would then not make sense. [para. 30] The observation in Lapointe was taken up in R. v. Martell, 2022 QCCQ 9333, where the court agreed that the standard for complexity must be “modulated according to the applicable ceiling” in order to make sense of Jordan (para. 204).
[63] I share these concerns. Ultimately, the question at the justification stage of the case complexity analysis is not whether the case’s particular complexity justifies the amount of net delay over the ceiling. Rather, it is whether the complexity of the case justifies the total amount of net delay, thereby rendering it reasonable (Jordan, at para. 80).
[64] As I have explained, the Jordan framework accounts for two considerations: the time it reasonably takes to bring a matter of ordinary complexity to trial and the maximum tolerable amount of chronic institutional delay. While the 18- and 30-month ceilings define the starting points for when delay becomes presumptively unreasonable, once the threshold stage for case complexity is met, the analysis is holistic.
[65] For example, a case proceeding in provincial court may be sufficiently complex, having regard to its particular complexity and the Crown’s reasonable efforts to proactively mitigate delay, to justify a total of 20 months between the laying of the charge and the end of the trial. The same case proceeding in superior court would not offend the Jordan ceiling. If the case’s inherent complexity can justify those 20 months, there is no principled reason why it should be stayed in provincial court when it would not be stayed in superior court.
[66] The point, then, is not that application judges ought to “modulate” the degree of complexity required to justify delay under the two different ceilings. Rather, where the complexity of a case, wherever it has proceeded, justifies the amount of time it took from start to finish, delay over the Jordan ceiling is not unreasonable and s. 11(b) is not breached. This approach ensures that the complexity analysis remains logically consonant with the rationale for the discrete ceilings in provincial and superior courts and remains responsive to developments in the law since Jordan.
[67] Approaching the analysis in this manner should also reduce the incentive for accused persons to strategically elect to proceed in provincial court so as to benefit from the lower Jordan ceiling. This trend is detrimental to the administration of justice, risking the inefficient allocation of scarce judicial resources by increasing the burden on provincial courts while underutilizing superior courts. While accused persons are entitled to make whatever election is open to them, courts must be alert to any improper strategic incentives that undermine the shared goal of timely justice. Again, the purpose of s. 11(b) is to ensure that trials are conducted within a reasonable time; this purpose is not furthered when accused persons flock to provincial courts in the hope of securing stays under the lower Jordan ceiling.
[68] Finally, I want to emphasize that the justification analysis under the case complexity exception is not an exercise in balancing net delay over the ceiling against the reasonableness of Crown attempts to mitigate delay. The intervener the Attorney General of Ontario submits that “if the state has acted reasonably, there should be no finding of unreasonable delay” (I.F., at paras. 2 and 19). In my view, this submission improperly conflates the obligation of Crown counsel to act reasonably with the obligation of the state more broadly to minimize chronic institutional delay.
[69] The Attorney General of Ontario’s submission would reduce s. 11(b) to a right to have the Crown make all reasonable efforts to proceed to trial quickly. This is inconsistent with the language of the Charter. Reasonable Crown efforts to proactively mitigate delay occasioned by complexity are necessary to justify net delay in excess of the Jordan ceiling: absent such efforts, the second element of the threshold stage is not satisfied and delay over the ceiling cannot be justified. But the right to trial within a reasonable time is more than a right to the Crown’s best efforts. If the Crown cannot, by making reasonable efforts, bring cases to trial within a reasonable time, then the state must step in and increase funding to the justice system. In effect, even where the Crown makes all reasonable efforts to proactively mitigate the delay occasioned by a particularly complex case, the presence of significant institutional delay will still result in a breach of s. 11(b). If the amount of net delay cannot be justified by the complexity of the case, it is irrelevant how many mitigating measures the Crown may have implemented to proactively address delay.
[70] Ultimately, the Charter prevents laying the burdens of underfunded courts and Crown offices at the feet of the accused. Where the amount of net delay exceeds what can reasonably be justified by the case’s complexity, there will be a s. 11(b) breach and the proceedings will be stayed.
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VI. Conclusion
[100] In summary, the case complexity analysis under Jordan proceeds in two stages. At the threshold stage, the Crown must prove that the case is particularly complex in light of the nature of the issues, evidence, and proceedings and also that it has taken reasonable proactive steps to mitigate delay. If the threshold stage is met, at the justification stage, the Crown must then prove that the overall complexity of the case justifies the amount of net delay. Here, the significant complexity of the case justified the net delay of 18 months and four days. . 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 - usefully - the Supreme Court, having decided it was appropriate to do so, conducts it's own trial level Charter s.11(b) 'complex case' trial delay assessment:(3) Considered Afresh, the Net Delay Was Justified by the Complexity of the Case
(a) Threshold Stage: The Case Was Particularly Complex, and the Crown Reasonably Managed the Corresponding Delay
(i) The Case Was Particularly Complex
[91] The respondents’ case arose in the context of a complex project prosecution involving voluminous disclosure, multiple connected proceedings, and numerous pre-trial applications. Eighteen individuals were charged with offences arising from the same drug trafficking operation the investigation of which generated significant disclosure, including more than 10,000 audio intercepts. The Crown divided the charges against the 18 individuals into 10 overlapping prosecution groups; some of these groups intended to rely on the outcome of the group Garofoli application, while some did not. Considerable complexity arose from the scheduling of the pre-trial and trial proceedings in respect of these groups.
[92] The voluminous disclosure, multiplicity of pre-trial proceedings, and joint nature of the prosecution are all hallmarks of complexity that can satisfy the first element of the threshold stage of the analysis. Indeed, in a related s. 11(b) proceeding arising from the same project prosecution, the application judge recognized that the case was particularly complex (Ivarone, at paras. 25-27). In my view, these observations applied equally to the respondents’ proceedings, regardless of the fact that they did not intend to rely on the outcome of the group Garofoli application. As I noted above, particular complexity is assessed having regard to any related proceedings and to the complexity and scale of the prosecution as a whole.
[93] I have no hesitation in concluding that the respondents’ prosecution was particularly complex.
(ii) The Crown Took Reasonable Steps to Proactively Mitigate the Delay Occasioned by Complexity
[94] Further, the record makes it clear that the Crown took proactive steps in this case to mitigate the delay occasioned by this complexity. Shortly after bringing the charges, the Crown sought case management and split the accused into 10 tailored prosecution groups, aiming to proceed as quickly as possible with those accused whose cases did not depend on the outcome of the group Garofoli application. The Crown’s proactive efforts to mitigate delay were commendable and exemplify the approach to ensuring timely justice that the Jordan framework seeks to incentivize.
[95] In the respondents’ case, the Crown’s implementation of this plan failed. The Crown erroneously scheduled the respondents’ trial dates as though they intended to rely on the outcome of the group Garofoli application, when in fact they did not. The reason for the Crown’s mistake can be readily discerned from the record before the application judge. Given the complexity of scheduling multiple trials and proceedings for 18 individuals, the Crown reasonably relied on the cooperation of defence counsel to assist in coordinating measures aimed at mitigating delay.
[96] During the case conference discussion on April 8, 2022, counsel for other accused in circumstances similar to those of the respondents clarified, without prompting, that their clients did not intend to rely on the outcome of the Garofoli application. These accused were given trial dates well within the Jordan limits. Defence counsel who spoke up to clarify their clients’ situations acted appropriately and in accordance with their shared responsibility to ensure timely justice. By contrast, the respondents’ counsel stayed silent, making no attempt to correct the Crown’s mistake even after it became evident from the trial dates they received. The conduct of the respondents’ counsel did not meet the standard of reasonable collaboration that the Crown was entitled to expect from the defence.
[97] To summarize, then, the Crown made reasonable proactive efforts to mitigate delay given the complexity of the project prosecution. While these efforts failed in fact to provide the respondents with trial dates within the Jordan ceiling, this is at least partially attributable to defence counsel’s failure to cooperate reasonably with Crown efforts to mitigate delay. Under these circumstances, the Crown’s mistake did not undermine the reasonableness of its efforts. The threshold is therefore met.
(b) Justification Stage: The Degree of Complexity Reasonably Justified the Amount of Net Delay
[98] The justification analysis will always depend on the facts of the particular case. Even one day of net delay over the ceiling will constitute a breach of s. 11(b) of the Charter if there are no exceptional circumstances capable of justifying exceeding the Jordan ceiling. However, once the threshold stage of the case complexity analysis is met — that is, once the Crown has established that the case is particularly complex and that it has taken reasonable proactive measures to mitigate the delay occasioned by that complexity — the amount of delay is relevant to its reasonableness. It will obviously be easier for the Crown to justify a net delay just a few days or weeks over the ceiling than to justify a net delay of months over the ceiling.
[99] In this case, on a proper calculation, the net delay was 18 months and four days. In my view, it is clear that the significant complexity of the case easily justifies this amount of net delay. The respondents’ s. 11(b) rights were accordingly not breached. . 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).
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