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Charter - Section 11(b) Trial Delay - Court Delay. R. v. Anderson [case management]
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 Charter s.11(b) trial delay:[25] In two forceful decisions that are relevant to this issue, the Court of Appeal has emphasized the importance of setting a schedule for motions, complying with that schedule, and bringing “difficulties to the attention of the court” in order to allow for “proactive case management.” In both cases, motions were summarily dismissed when they were not brought in accordance with the schedule that had been set. The two decisions were authored by Doherty J.A. In the first case, R. v. Oliver and Morrison (2005), 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 (Ont. C.A.), at para. 29, he stated:Trial judges are charged with the responsibility of ensuring the orderly administration of criminal justice. This obligation includes setting schedules for the conduct of criminal trials. Counsel are expected to comply with the schedules set by the court. This is no less true in criminal matters than in civil matters. When, as some times happens, difficulties develop in meeting schedules, counsel are expected to bring those difficulties to the attention of the court and opposing counsel as soon as possible so that the court may amend the schedule, if deemed appropriate. [Emphasis added]. Fifteen years later, in R. v. Kazman et al, 2020 ONCA 22, at para. 16, Doherty J.A. again stated:The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31 (CanLII), [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139. [Emphasis added]. . R. v. Jacques-Taylor [joint duty to ensure timelines met]
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 considered the joint duty of the parties and the court to ensure that their Charter s.11(b) timelines are met:B. The Duty to Ensure That Cases Proceed to Trial Quickly
[40] As I noted at the outset of these reasons, in Jordan the Court took aim at the culture of complacency that had become deeply engrained in our criminal justice system. Faced with this dire problem, and recognizing the unworkability of the Morin framework, the Court devised a new s. 11(b) framework characterized by two presumptive ceilings (Jordan, at paras. 37‑38 and 46; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771). These ceilings were not merely intended to be aspirational targets, but rather were the points at which delays become presumptively unreasonable (para. 56). Indeed, the Court noted, Canadians rightly expect the criminal justice system to bring accused persons to trial expeditiously (para. 27). Justice delayed is justice denied. This is true not only for the presumptively innocent accused — who is forced to live with the sword of Damocles hanging precariously over his or her head — but also for victims and society as a whole, who are denied the certainty of closure that a judgment on the merits brings (paras. 2 and 19).
[41] In order to tackle this rampant culture of complacency, the Court charted a new course: Jordan. Under the new framework, the Court emphasized the duty of every actor in the criminal justice system to take personal responsibility for expediting criminal proceedings and complying with the new ceilings. This was not merely an invitation. Rather, it is a duty that is incumbent upon all: Crown counsel, defence counsel, and courts.
[42] Of course, given the unique quasi‑judicial status of Crown counsel as “ministers of justice”, they play a central role in bringing the accused to trial within a reasonable time and, in doing so, seeing that justice is done (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23‑24; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 37). However, Crown counsel’s unique position in the criminal justice system should not be misunderstood as somehow requiring them to shoulder this burden alone.
[43] The defence, too, must ensure that proceedings move forward quickly and efficiently. The Court’s holdings in Jordan could not have made this any clearer: “This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives” (para. 5 (emphasis added); see also paras. 45 and 116‑17).
[44] In practice, this requires proactive good faith cooperation on the part of the defence when dealing with the Crown and the court. In order to ensure compliance with this duty, illegitimate or unjustifiable defence conduct that results in delays must give rise to deductions for those delays (J.F., at para. 32; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11; Cody, at para. 28). It cannot be stressed enough that the accused must be proactive in resolving issues promptly when they arise. Where the accused cannot adequately explain inaction, tardiness, or a lack of cooperation, courts should not hesitate to make deductions for defence delay or, in certain cases, find that defence conduct amounts to a discrete exceptional circumstance (J.F., at para. 33; Cody, at para. 33). Lest it be forgotten, s. 11(b) was always intended to be a shield, and not a sword with which to frustrate the ends of justice (Jordan, at para. 21; Morin, at pp. 801‑2; Askov, at p. 1222).
[45] The duty to proactively collaborate becomes particularly heightened where the procedural or legal complexities of the prosecution require increased coordination to avoid needlessly delaying proceedings. For instance, in cases where many pre‑trial motions are envisaged, the parties must — together and with the help of the case management judge — build a concrete plan that will allow them to expedite the proceedings. The parties should not hesitate to make admissions and resolve issues before they arise wherever this is reasonably possible. Moreover, procedural mechanisms that enhance trial efficiency should also be favoured. For example, the use of a blended voir dire may, depending on the particularities of the case, be a powerful mechanism for reducing the amount of time needed at trial (Jean v. R., 2020 QCCA 1455, at paras. 30 and 35; R. v. Cochrane, 2018 ABCA 80, 359 C.C.C. (3d) 210, at para. 5; R. v. Furlong, 2012 NLCA 29, 323 Nfld. & P.E.I.R. 77, at para. 28). The parties and the court should ask themselves whether issues can be decided in advance, or the proceedings shortened, by reliance on written rather than oral submissions (R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 57; R. v. Haevischer, 2023 SCC 11, [2023] 1 S.C.R. 416, at para. 102). Crown counsel should also consider whether the indictment contains essentially duplicative or superfluous counts that will serve only to complicate and prolong the proceedings (R. v. Di Paola, 2025 SCC 31, at para. 52; R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 78; R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 32). . R. v. S.A.
In R. v. S.A. (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal, here regarding Charter s.11(b) ['unreasonable trial delay'] issues - and involving a useful practical discussion of unfulfilled judicial vacancies and their effect:[1] This is a Crown appeal from a stay of proceedings following a finding of unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The application judge found that the delay in this case was unreasonable even though it fell below the applicable ceiling under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which in this case was 30 months. In her view, a factor that contributed to the delay was unfilled judicial vacancies. In assessing the reasonableness of the delay, she considered what would be typical for a comparable case in the jurisdiction if the court were not under-resourced. She found that the case had taken six to ten months longer than “what should be typical” (emphasis in original). Ultimately, she concluded that this was one of the “rare and clear” cases where a stay of proceedings was warranted.
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[18] The application judge’s findings of fact are owed deference on appeal, but her legal analysis, including her determination that the delay is unreasonable for purposes of s. 11(b), must be correct: 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; 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.
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(1) The Jordan framework
[20] In order to explain where the application judge went off track, it is necessary to briefly review the well-known Jordan framework.
(a) The presumptive ceiling
[21] Central to the Jordan framework is the “ceiling beyond which delay is presumptively unreasonable”: Jordan, at para. 49. This ceiling – 30 months in the Superior Court of Justice and 18 months in the Ontario Court of Justice – is the “most important feature” of the new framework: Jordan, at para. 49.
[22] Ceilings are intended to provide “meaningful direction” to those working within the administration of justice about their s. 11(b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: Jordan, at paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108.
[23] In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates and well aware that “resource issues are rarely far below the surface of most s. 11(b) applications”: Jordan, at para. 117. To this end, the ceilings set in Jordan were said to “reflect[] the realities we currently face”: Jordan, at para. 57.
(b) Cases below the ceiling
[24] The majority signalled that stays of proceedings under the ceiling will occur only in rare cases where there is clearly unreasonable delay: Jordan, at para. 48. By remarking upon the anticipated rarity of staying cases under the ceiling, the majority made specific note of three factors that had been considered in calibrating the ceilings of 30 months for cases in the Superior Court of Justice and 18 months for cases in the provincial court: the increased complexity of cases, their inherent needs, and a certain “tolerance for reasonable institutional delay”: Jordan, at para. 83.
[25] As explained above, the defence may establish unreasonable delay below the ceiling only if the defence can establish two things, that: “(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” (emphasis in original): Jordan, at para. 82; see also R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at paras. 4, 70, 104. In determining whether a case took markedly longer than it should have, case-specific factors will inform how to characterize the delay: Jordan, at para. 51; K.J.M., at para. 75. Those factors will include the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.
[26] As for local conditions, trial judges “should ... 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”: Jordan, at para. 89. At the end of the day, trial judges assessing whether the case has taken markedly longer than what was reasonably required are advised to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[27] I also note that, as for the Crown’s role in the matter, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded if the Crown has done its part to ensure that the matter proceed expeditiously: Jordan, at paras. 90, 112.
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[34] The application judge raises a valid practical concern about judicial resources. As she noted, it is one that is shared by Canada’s judicial leaders, who have publicly expressed the concern that delays in filling judicial vacancies have a detrimental effect on the administration of justice and the functioning of the courts. Here, however, the problem is that the application judge allowed her practical concern to cloud her legal analysis. In my view, there are several problems with the application judge’s approach.
[35] First, the focus was erroneously placed upon whether this and other cases could have been heard more quickly if all judicial vacancies had been filled. But the legal question was not whether the case could have or should have taken less time if there had been more judicial resources. As the Supreme Court explained in K.J.M., at para. 107, “the issue is not whether the case should reasonably have been completed in less time.” Rather, the issue is “whether the case took markedly longer than it reasonably should have”: K.J.M., at para. 107 (emphasis in original). In answering that question, the application judge should not have started from the position that the state acted unreasonably in failing to fill every judicial vacancy. Instead, she should have started from the position that the state brought the respondent to trial within a presumptively reasonable time, and, from that starting point, should have asked whether the respondent had rebutted the presumption of reasonableness.
[36] Second, the application judge found that the “failure to provide adequate judicial resources is unreasonable.” To be sure, judicial vacancies should be filled in a timely manner. About that, there is no question. But the reasonableness inquiry under s. 11(b) engages with a very specific legal framework. Although delays in filling judicial vacancies may be understandably described as “unreasonable” in a colloquial sense, it is not unreasonable, in and of itself, within the meaning of s. 11(b) of the Charter. Conflating those uses of the term unreasonable constitutes error.
[37] Third, the application judge found that, if all vacancies were filled, “it would be highly unusual for cases not to be heard when scheduled.” Again, that is not the legal question. The command of Jordan is not to ask whether the case could be heard when first scheduled, but whether it took markedly longer than it reasonably should have.
[38] As a practical matter, I would note that some jurisdictions in Ontario, including Toronto, schedule on the basis that not all trials will go ahead on their trial dates, especially first trial dates. As this court noted, “[t]he practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial” and “given the pressures on the parties to set dates in order to keep the case moving forward, ... a first trial date may be more aspirational as to timing than it is realistic”: R. v. Campbell, 2022 ONCA 223, 412 C.C.C. (3d) 510, at para. 24. Other reasons a case may not go ahead as scheduled include last-minute resolutions, sickness and so on.
[39] Whatever the reason, those trials that do not proceed on their trial dates fall within the “collapse rate”, something that has “always existed in the criminal courts”: R. v. Lui, 2024 ONSC 2022, at para. 26. As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or “stack” trial lists. Code J. noted this reality in the Toronto region: “[t]here are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably ‘collapse’, either on the trial date, shortly before the trial date, or shortly after the trial date”: Liu, at para. 27.
[40] A judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials. Done properly, stacking will generally reduce trial delays. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.
[41] In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 92 O.A.C. 345 (C.A.), at para. 27, aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.
[42] Fourth, the basis of some of the statements in the decision under review appear speculative. For instance, it is said that trials being set in 2022 “were set with the expectation that the court would have a full complement of judges at the time of the trials.” Similarly, it is said that cases were “scheduled with the expectation” that the court would have “adequate judicial resources”, an expectation that was not met because of unfilled judicial vacancies.
[43] Although those responsible for filling judicial vacancies must work with all diligence, the aspirational goal of a full complement of judges is not always realistic. As recognized in R. v. Als, 2024 ONSC 1428, at para. 45, “[o]ut of a complement of approximately 90 judges in the Toronto region, there will always be a certain degree of turnover that cannot be accurately forecast and there isn’t really a practical capacity to appoint judges on stand-by in excess of the statutory limits to await such un-forecast vacancies.” Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times,[1] but that is not the constitutional yardstick for determining whether there is unreasonable delay below the ceiling. Quite simply, if the accused was brought to trial within a reasonable time, it does not matter how many judicial vacancies there were and, conversely, if the accused is not brought to trial within a reasonable time, the fact there was a full complement of judges will not necessarily save the prosecution. . R. v. Mengistu
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'].
Here the court considers whether 'judicial deliberation time' for interlocutory rulings should count as s.11(b) trial delay time:[23] Moreover, there are conflicting decisions from lower courts in Ontario on whether judicial deliberation time should be counted within the Jordan framework.[1] While this court is yet to pronounce on the issue,[2] appellate courts in other Canadian jurisdictions have taken divergent approaches on the matter of judicial deliberation time for interlocutory applications.[3] Meanwhile, in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, the Supreme Court of Canada determined that deliberation time for a final verdict following the completion of a trial should not be included in the Jordan ceiling, but did not address the issue of whether judicial deliberation time for interlocutory rulings should similarly be excluded. Since the matter has arisen in a number of different contexts and has potentially broad application, it is desirable and in the interests of justice that this court provide guidance and clarity for Ontario courts on the matter.
(b) As a general rule, judicial deliberation time for an interlocutory matter is included within the Jordan presumptive ceilings and is not deducted when calculating the period of actual delay
[24] As noted above, in KGK, the Supreme Court held that the time taken by a trial judge to render a decision after the evidence and closing arguments in a trial have been completed is not included in the presumptive ceilings established in Jordan. Moldaver J. noted that the Jordan ceilings were a specific solution designed to address the culture of complacency in bringing accused persons to trial. There was no suggestion in Jordan that verdict deliberation time formed part of the culture of complacency or that it contributed to the delays in bringing accused persons to trial. Further, including this time in the presumptive Jordan ceilings would make the adjudication of s. 11(b) motions speculative, since there would be no way of knowing how much time would be needed to render a verdict and thus no way to determine in advance the expiry of the Jordan presumptive ceilings.
[25] The Crown urges us to apply the same rule to judicial deliberation time required to render interlocutory decisions. The Crown argues that the judicial deliberation process should not be rushed, truncated, or eliminated because a judge is concerned about the Jordan ceiling. Moreover, the Crown has no ability to control the amount of time taken by a judge to render an interlocutory decision. Thus, to respect judicial independence and promote trial fairness, such deliberation time should not be considered as time included in the Jordan presumptive ceilings.
[26] In contrast, Mr. Mengistu argues that regular or normal interlocutory steps, like a ruling on committal after a preliminary hearing, are already accounted for in the Jordan ceilings. The Crown is, in effect, seeking to expand the presumptive Jordan ceilings above the existing 18- and 30-month limits. Moreover, temporarily pausing the Jordan clock for interlocutory decisions would run counter to the Supreme Court’s emphasis in both Jordan and KGK on promoting certainty and predictability in assessing delay for purposes of s. 11(b).
[27] I agree with Mr. Mengistu that judicial deliberation time for interlocutory decisions should generally be considered as already included within the existing Jordan ceilings. I do so for three reasons.
[28] First, the time needed for judges to render interlocutory decisions, although not expressly addressed in Jordan, is, in my view, implicitly accounted for in the presumptive ceilings established by the court. As noted in Jordan, there is little reason to be satisfied with presumptive ceilings on trial delay set at 18 or 30 months since, “[t]his is a long time to wait for justice”. Nevertheless, these relatively generous time limits reflect “the realities we currently face” (at para. 57). These “realities” include the “inherent time requirements of the case and the increased complexity of criminal cases” as well as “the significant role that process now plays in our criminal justice system” (at para. 53).
[29] Jordan further states, at para. 65, that, in setting the presumptive ceilings, the court had already taken into account procedural requirements such as interlocutory defence applications.
[30] Such interlocutory proceedings necessarily involve, not simply the time needed for counsel to prepare and make submissions, but for the judge to rule on them. So, too, with respect to the time needed to complete a preliminary inquiry, which involves not simply the evidence and arguments of counsel but also the committal decision by the judge. In my view, there is no principled basis upon which to bifurcate the evidence and argument phase from the judicial deliberation phase of such interlocutory proceedings for purposes of the Jordan analysis.
[31] Second, excluding judicial deliberation time from the presumptive Jordan ceilings would run counter to Jordan’s emphasis on certainty and predictability as a means to counter the culture of complacency towards delay in the criminal justice system. The Jordan framework provides clear presumptive time limits that can be calculated from the outset of a criminal proceeding. It significantly reduces the need to engage in complicated micro-counting. This clarity focuses all those involved in the criminal justice system on proactive, preventative, delay-reducing problem-solving, and promotes accountability.
[32] A new rule creating “time outs” during which the Jordan clock would cease to run would reintroduce the very uncertainty that Jordan sought to reduce. Because it would be impossible to know in advance how often or how long these time outs would occur, the predictability and accountability that Jordan sought to promote would be undermined.
[33] Third, I see no reason why including judicial deliberation time for interlocutory matters in the Jordan ceilings would undermine judicial independence. As Jordan emphasized, the presumptive time limits are intended to promote accountability on the part of all participants in the criminal justice system, including the courts themselves. Judges are well aware that they are required to deal with interlocutory proceedings in a fair, but also a timely and efficient manner, and have done so without any apparent difficulty in the eight years since Jordan’s presumptive ceilings have been in place. I see no reason to doubt that this will continue in the future.
[34] Nor is this inconsistent with KGK, which merely affirmed that the presumptive Jordan limits apply only up until the actual or anticipated end of the evidence and argument at trial, and do not include time needed for the judge to render a verdict following trial. As pointed out in KGK, the Jordan framework was designed so that it could be applied in a straightforward manner, thereby promoting predictability and accountability. These goals would be undermined if judicial deliberation time after evidence and argument at trial were included within the framework, since it would be impossible to know in advance the end date of the presumptive Jordan ceilings. Conversely, as explained above, excluding judicial deliberation time required to render interlocutory rulings from the Jordan framework would produce the same uncertainty that KGK indicated ought to be avoided. Thus, in my view, KGK supports, rather than contradicts, the inclusion of judicial deliberation time associated with interlocutory rulings within the Jordan presumptive ceilings.
[35] I therefore conclude that judicial deliberation time required to deal with interlocutory matters is generally included within the presumptive Jordan ceilings. .... . R. v. Omiwole
In R. v. Omiwole (Ont CA, 2025) the Ontario Court of Appeal considered 'administrative error' as an 'exceptional circumstance', and thus it's non-counting against either side for Charter s.11(b) purposes:[10] As for the second issue, the appeal judge’s mistake of fact in relation to the Administrative Error does not amount to a question of law alone nor is its resolution a matter essential to the public interest. The appeal judge’s finding that the Administrative Error was an exceptional circumstance did not rest solely on her factual misapprehension. She found that the issuance of the notice to the wrong address was an administrative error for which the Crown should not be held responsible. As the appeal judge noted, this error is one of those which the Supreme Court of Canada described in R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 100, as “simply one of those unforeseeable and unavoidable hiccups that sometimes occur in the life of a trial”. The Crown plays no role in matters such as the Administrative Error and had no control or ability to remedy that error: K.J.M., at paras. 98-99. Further, I do not view the Administrative Error as a failure of natural justice. There is no suggestion in the record that the Moving Party was denied procedural fairness. The appeal judge properly deducted the delay occasioned by the Administrative Error as an exceptional circumstance.
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