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Charter - s.11(b) - Trial Delay - Complex Case Exceptional Circumstances (2). R. v. Blake
In R. v. Blake (Ont CA, 2023) the Court of Appeal considered a Charter s.11(b) trial delay appeal, here the issue being the 'complexity' of the cases:[2] In Ms. Blake’s s. 11(b) application, the application judge found that, although the net delay was moderately above 30 months, the complexity of the case justified the delay beyond the presumptive ceiling. The assessment of complexity for both matters is identical, as the appellants were co-accused. Jordan is clear that the assessment of complexity of a given case is a matter “well within the trial judge’s expertise” (at para. 79). Thus, the factual findings of the application judge are entitled to deference. We would not interfere with the finding of the application judge in Ms. Blake’s case that the complexity of the matter justified the additional delay. This finding is equally applicable to both appellants. . R. v. Anderson ['particularly complex']
In R. v. Anderson (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from sex assault convictions.
Here the court considers 'particularly complex' cases in the Charter s.11(b) trial delay regime:[30] The “exceptional circumstance” for “cases that are particularly complex” was described by the majority in R. v. Jordan, at paras. 77 and 79 in the following terms:Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.
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It bears reiterating that such determinations fall well within the trial judge’s expertise. And, of course, the trial judge will also want to consider 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. c. Auclair, 2014 SCC 6 (CanLII), [2014] 1 S.C.R. 83 (S.C.C.), 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. [Italics in the original]. [31] In R. v. Cody, at para. 64, the Court clarified that it is “the case as a whole” that must be “particularly complex”:Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable ( , at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79). [32] This court has emphasized one of the above points made in Jordan, namely, that determining the overall complexity of a case is “well within the trial judge’s expertise.” As a result, the trial judge’s findings in relation to this issue are “entitled to deference.” See: R. v. Blake, 2023 ONCA 847, at para. 2. The trial judge relied on the following aspects of the case that made it “particularly complex”:. there were “ten different complainants;”
. there were “multiple sets of criminal charges” covering a six-year period. They were laid on four separate dates, as the ongoing investigation proceeded;
. counsel “decided against severance” and agreed to a single trial. Counsel then worked “collaboratively to ensure this plethora of cases was kept on track”;
. the witnesses were “vulnerable” (and would presumably require careful preparation);
. there were two separate Charter applications, one relating to s. 8 and one relating to s. 11(b). Both applications took some time to prepare and complete;
. the Crown brought a similar fact application at the end of the case, seeking cross-count admissibility on three separate bases;
. the defence brought directed verdict applications at the end of the Crown case in relation to three of the 10 complainants;
. there was argument relating to the availability of lesser included offences that led to a written decision by the trial judge;
. the trial judge, the Crowns, and defence counsel were all brought in from outside Ottawa, as a result of the conflicts issue. This made the case “administratively complex” because of the existing schedules (and vacations) of these out of town parties (who all gave up vacation days in order to accommodate the trial). In addition, “the realities of conducting a trial in a different city” complicated “disclosure communications and litigation support.” . R. v. Singh
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here brought against a Charter s.11(b) ['trial delay'] large-scale drug offence stay.
The court considers the role of large-scale prosecutions (here for drug offences) in a Charter s.11(b) trial delay context:[1] Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. Courts must reconcile this fundamental right with two of the administration of justice’s most compelling imperatives: trying co-accused jointly and conducting large project prosecutions. The flexible framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, achieves this very goal. It recognizes that joint trials are ordinarily in the interests of justice and that complexity is sometimes unavoidable in project prosecutions, while holding the Crown to its duty to prevent and mitigate delay. Applying Jordan mechanically without meaningfully accounting for these interests risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions. Properly applied, Jordan prevents such outcomes while still safeguarding timely justice for the accused.
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[4] I would allow the Crown’s appeals and set aside the stays because the joint trial and the project’s scale justified the additional time taken. In my respectful view, the application judge did not meaningfully account for these vital interests. His preferred alternative to a joint trial, severance, was not a panacea. Rather, it would have undermined the very interests joint trials safeguard – advancing the search for truth, strengthening public confidence in the courts, and combatting systemic delay. By focusing narrowly on the relative simplicity of the individual charges, he overlooked the structural complexity of the project as a whole. The complexity of the case caused everything to take longer – even for the respondents – and easily justifies the remaining modest delay.
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C. ANALYSIS
[12] The Crown asks this court to set aside the stays of proceedings and remit the matters for trial, arguing that the application judge erred in his assessment of exceptional circumstances. It submits, first, that the application judge should have deducted the 107 days of joint-trial scheduling delay as a discrete exceptional circumstance. Second, it contends that the application judge failed to recognize that the complexity of the case justified the remaining delay in excess of the Jordan ceiling.
[13] I would allow the appeal. I agree with the Crown on both issues. Although findings regarding exceptional circumstances generally attract deference, a correctness standard applies here because the application judge misapplied the governing legal principles: R. v. Zahor, 2022 ONCA 449, at para. 79; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 28, leave to appeal refused, [2020] S.C.C.A. No. 53.
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(2) Case Complexity Justifies the Remaining Delay
[27] The next issue is whether the complexity of this case justifies the remaining delay above the ceiling – nine days for Mr. Singh and 68 days for Mr. Narang. In my view, it does. I begin by outlining the governing legal principles before turning to their application to the record.
(a) Case Complexity Can Accommodate Project Prosecutions
[28] To establish case complexity, the Crown must demonstrate two elements. First, it must show that the nature of the evidence or issues required an inordinate amount of preparation or trial time sufficient to justify the remaining delay above the ceiling. This threshold demands particular complexity – something beyond the baseline contemplated by Jordan’s ceilings. Once particular complexity is established, the degree of complexity required to justify delay is proportionate to the quantum of net delay: shorter net delays require less complexity, while longer delays require more. Second, the Crown must show that it implemented a concrete, reasonable plan to minimize delay: Jordan, at paras. 77-79; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 63-64; R. v. Chan, 2019 ABCA 82, 82 Alta. L.R. (6th) 1, at para. 24; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at paras. 64-69, leave to appeal refused, [2018] S.C.C.A. No. 135.
[29] Complexity is frequently invoked where the state advances a project prosecution involving expansive investigations, voluminous disclosure, and numerous accused persons. As Karakatsanis J.A. (as she then was) observed, such prosecutions “play an important role in the administration of justice” and serve as a “necessary response to the increasing sophistication of organized criminal activity”: R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at paras. 30, 82, leave to appeal refused, [2011] S.C.C.A. No. 195.
[30] Jordan’s accommodation of case complexity reflects the systemic importance of project prosecutions. The doctrine aims to make room for time-intensive proceedings – including organized crime cases – that cannot reasonably be completed within the presumptive ceilings. Although the focus is on complexity rather than offence gravity, large multi-accused organized crime trials are among the cases most likely to satisfy this threshold: Jordan, at paras. 77-78, 81; Nugent, at paras. 31-33; R. v. Pearce, 2021 NSCA 37, 405 C.C.C. (3d) 75, at para. 145.
[31] Jordan also directs courts to assess complexity holistically over the full life cycle of the case. Complexity should not be viewed in isolation at the trial stage. Early-stage complexity – arising from the breadth of disclosure and number of accused in large projects – may justify longer delay even for “minor players” whose individual trials appear more streamlined by the end: R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 37-40.
[32] As a result, courts must approach case complexity in a manner that is both purposive and realistic in the context of project prosecutions. As de Sa J. has explained, the sheer scale of such cases means they inevitably take longer to organize and advance. It would be unfair, and unrealistic, to expect them to proceed at the pace of ordinary prosecutions: “Understanding R. v. Jordan: A New Era for s. 11(b)” (2018) 66 Crim. L.Q. 93, at p. 97. The fact that a Crown plan anticipates exceeding the ceiling does not itself render the plan unreasonable: Nugent, at para. 39.
[33] At the same time, complexity cannot operate as a shield for Crown complacency. Jordan requires the Crown to move project cases forward as expeditiously as reasonably possible. Complexity is never presumed, even in large projects; the Crown must prove it on the record and must take reasonable steps to reduce delay. Not every prosecution within a project will be complex, and some may be completed within the ceiling even if others require more time. Moreover, complexity cannot justify unreasonable Crown decisions, ineffective planning, or choices that themselves generate delay: Jordan, at para. 79; Picard, at paras. 64-69.
(b) This Project Justified the Additional Time
[34] The complexity of this prosecution justified the modest net delay that remained above the ceiling. Unfortunately, this was overlooked by the application judge, resulting in a legal error.
[35] The application judge erred by failing to situate the respondents’ charges within the broader procedural context. He treated the case as uncomplicated because the allegations against these two accused were relatively focused. But that is not determinative. They were prosecuted as part of a large, multi-accused mega-project involving extensive investigative steps and enormous disclosure. Those structural features can render a proceeding complex even where individual accused – as here – face comparatively straightforward charges. His further suggestion that the lack of novel legal issues precluded complexity misstated the test: complexity arises from the nature and volume of the evidence, the scale of the investigation, and the organizational demands of a project prosecution – not solely from difficult questions of law.
[36] Viewed holistically, this was a particularly complex case. Project Cheetah was a cross-border, multi-agency investigation involving wide-ranging surveillance, wiretap authorizations, and dozens of warrants. The resulting disclosure was vast: over 300 gigabytes, which took more than a year to assemble and produce. As the application judge elsewhere recognized, these features created unavoidable delays because disclosure management was “time consuming and difficult” for both sides. This is precisely the paradigm of mega-project complexity contemplated in Jordan.
[37] The caution in Jordan and Cody that voluminous disclosure alone may be insufficient does not alter the analysis. Here, the volume of disclosure was intertwined with the project’s cross-border scope, the number of investigative techniques used, and the dozens of defendants implicated. This project was substantially larger than those in Cody or Jordan – the 86,000-plus files far exceeded the roughly 20,000 pages in Cody, and the number of implicated individuals was more than triple that in Jordan. Moreover, there was no evidence that this prosecution or others within the project could reasonably have proceeded within the ceiling.
[38] This overarching complexity readily justifies the relatively modest above-the-ceiling delay. While the respondents’ charges were not technically difficult, in the circumstances of this case that factor may only limit the complexity justification for longer periods of delay; it does not negate the need to accommodate the additional time warranted by a mega-project of this scale at its early stages.
[39] The record also demonstrates that the Crown implemented a concrete, reasonable plan to minimize delay. The application judge accepted that the Crown took the standard steps required in complex projects: assigning appropriate resources, devoting substantial time to disclosure management, organizing the many accused into tailored prosecution groups, and using case management tools to streamline the pre-trial and trial processes: R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 82, leave to appeal refused, [2019] S.C.C.A. No. 370 (Kompon), and [2019] S.C.C.A. No. 423 (Bulhosen).
[40] The application judge nevertheless faulted the Crown because disclosure remained time-consuming. That reasoning was incorrect. The standard is one of reasonableness, not perfect efficiency, and the Crown is not required to complete a complex project case within the ceiling or eliminate all delay: Nugent, at paras. 39, 44-45. Having found no unreasonableness in the Crown’s plan, the very factors the judge identified – the time required to prepare extensive disclosure and the defence’s ensuing requests for further disclosure and review – reinforce rather than undermine the conclusion that this was a complex prosecution. . R. v. J.H.
In R. v. J.H. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "10 counts of domestic violence-related offences", and grounded in Charter s.11(b) ['trial delay']..
This case illustrates some of the many aspects of delay that are relevant to s.11(b) assessments:[5] On appellate review of a s. 11(b) decision, deference is owed to a trial judge’s underlying findings of fact. Characterization 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; 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.
[6] In the absence of an error in the legal principles applied, a trial judge’s assessment of the complexity of a case, and whether the Crown used reasonably available tools to minimize delay, are “well within the trial judge’s expertise” and entitled to deference: Jordan, at paras. 77-79; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 35; R. v. Wookey, 2021 ONCA 68, 400 C.C.C. (3d) 290, at para. 88; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 103, leave to appeal refused, [2019] S.C.C.A. No. 423.
[7] The assessment of whether a case is particularly complex such that it can justify delay based on exceptional circumstances involves a qualitative, not a quantitative assessment: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64. The complexity assessment must focus on whether, because of the nature of the evidence or the nature of the issues, the case requires an inordinate amount of trial time or preparation time: Jordan, at paras. 77-79.
[8] The appellant’s argument that there were not sufficient hallmarks of complexity seeks to turn the qualitative analysis of whether a case is particularly complex into a counting exercise of the number of hallmarks of complexity. This is contrary to the approach in Jordan and Cody, which requires that complexity be assessed by looking at the case as a whole and emphasizes the expertise of trial judges to engage in this wholistic assessment of the complexity of a case.
[9] The trial judge assessed complexity using the correct framework from Jordan. He considered all of the circumstances and looked at the case as a whole, rather than parsing individual steps or factors, consistent with the approach in Cody, at para. 64. He gave particular weight to the following factors: the large number of charges; the nature of the charges; the period of time over which the charges took place; the significant number of pre-trial and mid-trial applications on procedural and evidentiary issues; the complexity of scheduling some of the pre-trial applications because it was necessary to schedule them separately from the trial dates so rulings could be provided and the parties could take next steps; and the length of the trial – 17 days of trial time – which he found was “exceptional” for the Ontario Court of Justice in Ottawa. The trial judge further found, following the analysis required by Jordan at paras. 69-70, that the Crown, with the cooperation of the defence, had taken reasonably available steps to minimize the delay.
[10] Given the deference accorded to trial judges in the assessment of complexity, we see no basis to interfere with the trial judge’s weighing of all the circumstances, nor with his conclusion that the case was sufficiently complex to justify the delay on the basis of exceptional circumstances.
[11] We also reject the appellant’s submission that the trial judge relied on the seriousness of the offence as a marker of complexity, which would be contrary to the direction in Jordan, at para. 81.
[12] At no point did the trial judge refer to the seriousness or gravity of the offences as a factor in his complexity analysis; rather, he referred to “the nature of the charges”. In our view, when one reads the passage of the reasons in which the trial judge refers to “the nature of the charges” in context, it is clear that he was not referring to the level of seriousness or gravity of the offences charged. Rather, he was referring to the procedural complexities that frequently accompany sexual assault charges. Although the appellant was ultimately acquitted of the two counts of sexual assault among the 24 counts against him, those counts contributed to the complexity of the prosecution. We see no basis to interfere with the trial judge’s finding that in the circumstances of this case, the nature of the charges contributed to the procedural complexity of the case.
[13] As a result of our conclusion that the trial judge did not err in his complexity analysis, it is not necessary to address the Crown’s argument, seeking to uphold the result on other grounds, that an additional time period ought to have been deducted as delay solely caused by the defence.
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