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Criminal - Trials - Complex. 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.
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