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Charter - Section 11(b) - Trial Delay (5). 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. Toole
In R. v. Toole (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal from a Charter s.11b stay of proceedings.
Here the court considered whether the trial judge was functus officio wrt trial delay application after a trial and a finding of guilt, but before sentencing:[3] Prior to the hearing of the appeal, the parties were asked for submissions on the question of whether the application judge had jurisdiction to stay the proceedings following a jury verdict of guilt, or whether the application judge was, at that point, functus officio.
[4] As I will explain, I am of the view that the application judge was not functus officio and committed no error in entering the stay. ....
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1. The application judge was not functus officio
[30] The first issue requires the court to consider whether two of its prior decisions are binding precedents in the context of s. 11(b) applications: R. v. Gostick (1991), 1991 CanLII 11749 (ON CA), 62 C.C.C. (3d) 276 (Ont. C.A.); R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 12. After setting out the parties’ joint position and summarizing Gostick and Henderson, I explain why neither decision holds that a trial judge is functus officio following the jury’s verdict for purposes of a s. 11(b) application. Prior to sentencing, trial judges are not functus officio to hear and decide such applications.
Position of the parties
[31] In response to this court’s request for submissions, both the Crown and the respondent took the position that the application judge was not functus officio. They argued that Gostick and Henderson are distinguishable. Gostick and Henderson held that the trial judge was functus officio following the jury’s verdict, but these decisions involved stay applications outside the s. 11(b) context. In these cases, had the applications been heard before the jury’s verdict, the court would have been able to consider remedies short of a stay.
[32] In the parties’ submission, s. 11(b) applications are different from the situations addressed in Gostick and Henderson because the only remedy available for a breach of s. 11(b) is a stay.
[33] In support of their position, the parties referenced the Quebec Court of Appeal’s decision in Drouin c. R., 2020 QCCA 1378, leave to appeal refused, [2020] S.C.C.A. No. 465 (Lafortune), and [2020] S.C.C.A. No. 468 (Amato). In that case, the court held that infringement of s. 11(b) is a matter entirely independent of the jury’s verdict. The court therefore found that the trial judge was not functus officio in respect of a s. 11(b) application filed after the jury’s guilty verdict, but prior to sentencing.
Gostick
[34] Gostick was an appeal from a stay of proceedings issued after the jury’s verdict of guilt. The defence had argued that courtroom conditions amounted to an abuse of process. Letters from the jury attested that unbearable heat impaired its ability to judge the case. The jury also said that it was at times difficult to hear witnesses because of noise from the fans. The trial judge determined that despite the jury having rendered its verdict, a stay of proceedings was warranted.
[35] This court allowed the appeal. It distinguished the situation before it from the procedure adopted where entrapment is alleged. In entrapment cases, the decision as to whether a stay ought to be granted is made after the jury’s finding of guilt. This procedure is meant to protect the right of the accused to an acquittal if the Crown fails to prove the essential elements of the offence before the issue of entrapment is considered: R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, at p. 972. The court in Gostick explained, at p. 284, that the abuse of process application at issue was different:There is no reason for an issue of this nature to await the jury’s determination of the accused’s guilt or innocence. If it is alleged that conditions in the courtroom are so oppressive as to prevent the jury from properly performing its function and thereby denying the respondent a fair trial … the jury ought not to be charged and called on to assess the respondent’s guilt or innocence. [36] It followed, therefore, that the trial judge “was not empowered … to reopen the trial proceedings and, by staying the charges, effectively quash the jury’s verdict”: at p. 284. After the verdict, the abuse of process claim could only be properly raised on appeal.
Henderson
[37] Henderson was a Crown appeal from a mistrial order. The defence had applied for a stay after the jury’s verdict because the Crown had failed to preserve and disclose records that had been requested before the trial commenced. The trial judge concluded he had jurisdiction to consider the application, either based on s. 7 of the Charter or the doctrine of abuse of process. He determined that the appropriate remedy was a mistrial.
[38] This court allowed the appeal holding that, after a jury’s verdict, trial judges have an extremely limited jurisdiction to alter the verdict, order a stay, or declare a mistrial. It cited two limited exceptions: (i) cases in which the jury does not render the verdict it intended: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, and (ii) entrapment: Mack.
[39] The court, relying on Burke and Gostick, held that following the recording of a jury’s verdict of guilt, the trial judge did not have jurisdiction to declare a mistrial “for pre-trial non-disclosure by the Crown which was known to the defence”: at para. 35. The court emphasized that the Crown’s failure to disclose was a live issue before the start of the trial. The court therefore determined, at para. 46, that “counsel cannot save such motions to be brought only if the accused is convicted. Once the jury has delivered its verdict, matters that involve the conduct of the trial and that could have affected the jury’s verdict can only be raised on appeal”.
Analysis
[40] I agree with the parties’ submission. The jury’s verdict of guilty does not render a trial judge functus officio for purposes of a s. 11(b) application. I reach this conclusion for two reasons.
[41] First, it is settled law that the right “to be tried within a reasonable time” extends beyond the determination of guilt or innocence “up to and including the date upon which sentence is imposed”: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 3. It follows that an accused person can claim a breach of s. 11(b) at any point before sentencing. The jury’s verdict of guilt does not terminate the trial judge’s jurisdiction to hear such an application. It makes no difference that the s. 11(b) application in this case was filed on the eve of the trial and not after the verdict. Either way, it is only at the end of sentencing that the trial judge becomes functus officio for purposes of a s. 11(b) application: R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185, at para. 91, leave to appeal refused, [2020] S.C.C.A. No. 58. This conclusion aligns with the temporal scope of s. 11(b).
[42] Second, properly interpreted, the doctrine of functus officio has no application where, as here, the application and remedy sought are unrelated to the jury’s verdict and deliberations. As explained in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, at para. 33, the doctrine of functus officio “indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision” (emphasis added). As a result, in determining whether the trial judge was functus officio in the present case, the question to ask is whether a s. 11(b) application seeks to “reconsider” the jury’s verdict of guilt. Clearly, it does not.
[43] Seeking a stay as a remedy for a s. 11(b) breach is unrelated to the merits of the prosecution. It neither seeks to reconsider nor alter a jury’s finding of guilt. A s. 11(b) application, whatever its timing, could never lead to a remedy capable of affecting the outcome of a jury’s deliberations. As a result, with respect to such applications, the trial judge will become functus officio only at the end of the trial which, in this context, is the end of sentencing: K.G.K., at para. 27, citing R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 19.
[44] This court’s rulings in Gostick and Henderson can thus be distinguished from the present context. In both cases, the post-verdict stay applications involved matters that could have had an impact on the jury’s decision. Unlike s. 11(b) applications, the courtroom conditions in Gostick and the disclosure issue in Henderson pertained to the conduct of the trial. On these facts, our court properly concluded that the trial judges were functus officio and lacked jurisdiction to cast a cloud over the verdict of guilt by remedying a trial fairness issue after the fact. The post-verdict applications sought, in effect, to “reconsider” the jury’s final decision. Such reconsideration would violate the doctrine of functus officio as defined in Canadian Broadcasting.
[45] My conclusion that Gostick and Henderson are distinguishable is also consistent with the view expressed by the Quebec Court of Appeal in Drouin. There, the court held that the trial judge erred in declining to rule on a s. 11(b) application brought after the jury’s verdict. Citing Henderson, among other authorities, the trial judge had found she was functus officio. The Quebec Court of Appeal disagreed and, for reasons similar to those set out herein, distinguished Henderson. As that court explained, the jury’s verdict does not exhaust the trial judge’s jurisdiction in respect of “une question totalement indépendante du verdict prononcé par le jury” [unofficial translation: “a matter entirely independent of the verdict delivered by the jury”]: Drouin, at para. 318.
[46] However, I should not be taken as condoning what occurred in this case. Once trial dates are set, any s. 11(b) application an accused person may wish to bring should be brought and decided on a timely basis. In Superior Court proceedings, subject to the trial judge’s discretion, such applications must be scheduled at the latest 60 days before the first day of trial, as required by Part VI of the Consolidated Provincial Practice Direction Regarding Criminal Proceedings.[2] In this case, compliance with the practice direction would likely have resulted in the application being decided well before the scheduled trial dates, thereby obviating the need for a trial.
[47] Instead, an unnecessary six-day trial was held because the application was filed late, on the eve of the trial, and the trial judge decided that she would nonetheless hear it, but only after the trial was completed. In my view, this outcome is contrary to the efficiencies required by Jordan: see e.g., at paras. 40-43, 45, 116-117. The result was a complainant having to testify and undergo cross-examination unnecessarily, in this case for a second time, and a jury being required to hear and come to a difficult decision of guilt only to see the case stayed by the later ruling. Court time as well as the witnesses’ and jury’s time were, in effect, wasted. Such an outcome does not put the justice system in the best light. It was avoidable and should have been avoided.
[48] In sum, this court’s rulings in Gostick and Henderson have no bearing on the post-verdict jurisdiction of trial judges to hear and decide s. 11(b) applications. Having concluded that the application judge in this case was not functus officio, I now turn to the ground of appeal raised by the Crown. . R. v. Qureshi
In R. v. Qureshi (Ont CA, 2026) the Ontario Court of Appeal allowed a Charter s.11(b) ['trial delay'] criminal appeal, this brought against convictions for "multiple firearm offences involving the possession of a handgun and ammunition".
Here the court focusses on defence delay:[3] This appeal turns on whether the trial judge erred in his characterization of the 144-day period between March 13 and August 4, 2023 as defence delay alone. The appellant argues that the trial judge ignored other relevant circumstances in assessing whether the defence was the sole cause of the delay, thus failing to follow the approach set out in R. v. Hanan, 2023 SCC 12, 170 O.R. (3d) 240. The appellant submits that the net delay in this case remains above the 18-month ceiling.
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a. Foundational Principles and Standard of Review
[27] The framework for assessing unreasonable delay post-Jordan is well established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [28] The trial judge’s findings of fact are owed deference, but his legal analysis, including his determination that the 144-day period in question was entirely defence delay, is assessed on a correctness standard: 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, at para 2.
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[31] As I will explain, the trial judge erred in determining that all 144 days from March 13 to August 4, 2023 constituted defence delay. Although, as noted above, he referred to Hanan in his second s. 11(b) decision, he erred in applying Hanan [SS: R. v. Hanan (SCC, 2023)].
[32] First, the trial judge erred by stating that any Crown delay in offering new dates was irrelevant to the “particular issue” (i.e., assessing whether the 144 days should be deducted as defence delay). The Supreme Court of Canada declined to endorse a bright-line rule in assessing the unavailability of defence counsel and any ensuing delays in Hanan, at para. 9:Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136). [Emphasis added.] . 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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