S.A.’s trial for the charges of assault and sexual assault, was scheduled to commence on April 17, 2023. He elected to be tried by judge and jury. On the trial date, a judge was unavailable to preside, so the trial did not commence. A subsequent trial date was scheduled for February 12, 2024. The defence brought an 11(b) application. The 11(b) application judge stayed the proceedings, and held that even though the delay was below the presumptive 30-month ceiling set out in Jordan, the delay was unreasonable. The judge reasoned that unfilled judicial vacancies was an important factor that should be taken into account when assessing the delay. The Crown appealed. 

The Ontario Court of Appeal agreed with the Crown and found that the application judge made an error in concluding that delay from laying the charge to the anticipated end of the trial, approximately 26.5 months, was unreasonable delay. The Court of Appeal held that although the application judge stated the law correctly, the application of the lawwas in error. The Court of Appeal emphasized that when assessing delay the analysis must include a holistic approach, and cited the following factors for granting the Crown’s appeal, and setting aside the stay of proceedings:

1. The net delay in this case was well below the Jordan ceiling;

2. Both the Crown and Defence had both acted with haste and diligence to move the case forward;

3. There was an increase in complex cases in the Toronto region;

4. The Toronto region was still experiencing the backlog of cases as a result of thepandemic;

5. The appellant was not in custody and was out on bail;

6. Nothing novel in this case warranted a sense of urgency (such as a young complainant, or this matter being a re-trial); and

7. Had the first trial date had gone ahead, this two-week jury trial would have been completed in less than 17 months, which even falls below the ceiling for a trial proceeding only in the Ontario Court of Justice.