R. v. Toole, 2026 ONCA 99
[57] As I will explain, the decision to vacate the June trial dates to await the Supreme Court of Canada’s decision in J.J. does not constitute a discrete exceptional event. It follows that the ensuing delay ought not to be deducted from the total delay.
[58] The Crown has not discharged its burden of showing that the adjournment delay was reasonably unforeseen or reasonably unavoidable. As I will explain, it was not reasonable to halt the case’s progress until the Supreme Court released its judgment in a different matter. To avoid similar delays in the future, I will set out what is in my view the proper approach when considering whether to adjourn a trial to wait for appellate guidance.
[59] The Supreme Court of Canada has repeatedly instructed all actors in the justice system to be proactive in avoiding unnecessary delays: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36; Jordan, at para. 137; and R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9.
[60] Courts are to apply the law as it stands without regard to uncertain future changes. Delaying trials any time there is an appeal pending in a higher court involving a relevant legal issue would risk bringing the judicial system to a halt. Waiting for the final resolution of such issues is simply not a reasonable way to achieve timely and effective justice. The harm of delay is certain, but the benefit of delay is rarely more than speculative.
[61] This is not to say that, in fixing trial dates, the parties and the court would not take into account the potential impact of a pending decision on the conduct of the trial. Nor, once a trial date is set, could a judge never reasonably determine that awaiting guidance from a higher court justifies an adjournment. Adjournment decisions are discretionary and enable the trial judge to manage cases fairly and effectively: R. v. Ke, 2021 ONCA 179, at para. 57; R. v. Hazout (2005), 2005 CanLII 30050 (ON CA), 199 C.C.C. (3d) 474 (Ont. C.A.), at para. 31, leave to appeal refused, [2005] S.C.C.A. No. 412, and [2005] S.C.C.A. No. 501. Appellate courts thus owe deference to the case management choices made by trial judges: Jordan, at para. 139.
[62] I would think, however, that decisions to delay a case’s progress while awaiting the outcome of an appeal would be the exception. Each situation must be resolved on its particular facts, weighing factors such as the anticipated delay, the position taken by the parties, the significance of the issue to be resolved and the potential impact on the trial and the accused should the adjournment request not be granted. A judge considering whether a delay or adjournment is appropriate and warranted will also weigh the risk that the appellate court’s ruling will result in a miscarriage of justice, impairment to trial fairness or need for a retrial should the trial proceed as scheduled.
[63] A judge may, for example, consider it appropriate to grant an adjournment where a pending appellate decision is reasonably believed to be imminent, will likely impact whether a jury is properly constituted and all parties agree that a short delay is warranted. In such a case, the prospect of having to redo a trial depending on the outcome of the pending appeal will weigh heavily in the balance. Similar concerns may arise where the constitutionality of the very offence the accused is charged with is pending in the higher court.
[64] The present case, however, did not display any such extraordinary features and there was no consensus among the parties that an adjournment was warranted. At the time of the adjournment decision, the respondent’s constitutional challenge had been ruled on in at least nine different cases throughout the province. The court did so in those cases without waiting for definitive guidance from the Supreme Court of Canada. Indeed, if the trial proceeded based on a ruling contrary to the Supreme Court’s later decision in J.J., it is far from certain that it would require a retrial.[3]
[65] I am not persuaded that the lengthy adjournment which occurred in this case would have been appropriate even if the defence had offered to waive delay pending the appellate decision. Defence waiver would be only one factor for the judge to take into account. It would not and should not, standing alone, constitute a proper basis to adjourn a trial: Cody, at para. 37. While defence delay resulting from a waiver does not count towards the ceiling, timely trials engage interests beyond the accused’s s. 11(b) rights. All delay, deductible or not, still affects the courts, victims of crime and public confidence in the justice system: Jordan, at paras. 22-27. Had the expectation been that the Supreme Court’s decision in J.J. was imminent, a short adjournment with the parties’ agreement may have been reasonable. What occurred in this case, an adjournment of 5 months and 15 days decided almost one month before the trial was scheduled to start, is in my view unjustified. In fact, as it turns out, delaying the start of the trial by just one month, to July 13, 2022, would have been sufficient as the decision in J.J. was issued on June 30, 2022.
[66] To be clear, my conclusion that the adjournment delay to await guidance from the Supreme Court regarding the respondent’s constitutional challenge was not attributable to a discrete exceptional event does not solely depend on the reasonableness of the adjournment decision. Even in those rare cases where a decision to await guidance from a higher court is reasonably taken, I would not view the delay as falling within the discrete events category of exceptional circumstances. What the Supreme Court understood “events” to be is apparent from the examples given in Jordan, at paras. 72-73: illness, family emergencies, extradition, trial complications. In other words, events in the ordinary sense.
[67] By contrast, a constitutional question raised by a party is not an “event”. It is a legal issue to be addressed in the course of a trial process. Defence applications, such as the Charter challenge brought by the respondent, are procedural steps which the Supreme Court of Canada accounted for when setting the presumptive ceilings: Jordan at para. 65; see also R. v. Mengistu, 2024 ONCA 575, at paras. 28-29. Responding to the issues raised in such applications is part of the trial process.
[68] Adjourning a trial to await the guidance of a higher court is simply a way the court may respond to an application. It does not constitute a discrete exceptional event. The issues raised by the application will however be relevant in assessing a case’s complexity. In some cases, particularly complex issues will justify a net delay above the ceiling. That is because the case complexity category of exceptional circumstances involves, among other things, “novel or complicated legal issues”: Jordan, at para. 77. Therefore, the steps required to adjudicate a legitimate constitutional challenge brought by the defence are proper factors in assessing whether the case as a whole was “particularly complex”. This holds true whether the challenge is resolved by hearing and deciding the application or by an adjournment to await the higher court’s decision.
[69] Finally, I agree with the respondent that this court’s decision in Corner is of little assistance to the Crown. In Corner, a third party obtained leave to appeal to the Supreme Court of Canada from an interlocutory decision in that prosecution. This interlocutory appeal was a true discrete exceptional event. The pending Supreme Court decision unavoidably brought the proceedings to a halt because it was an appeal from a ruling in the case and would determine which evidence could be heard at trial. These were quite different circumstances than those in the present case. Here, the decision made was to wait for the Supreme Court’s decision in J.J., a totally different proceeding, in the expectation that it would obviate the need to rule on a constitutional issue raised in a defence application. As I have explained, such issues are not discrete events but rather factors to weigh in the assessment of case complexity.
[70] In this appeal, the Crown did not take the position that the case’s complexity rebuts the presumption of unreasonable delay. The application judge, for her part, noted there was “no question that this was not a complex case.” I see no reason to doubt her assessment.
[71] Before concluding, I would emphasize that it is not appropriate for the defence to delay applications as was done in the present case. I do not agree with the application judge’s statement that it was reasonable for the respondent to wait “as long as possible” before bringing his constitutional challenge. He had given no indication of his intention to challenge any legislative provisions and, as a result, the application was not accounted for in the pre-trial schedule. He served and filed the application close to 22 months after the information was laid, without providing the required 30-day notice. In the circumstances, this delay was not justified. Nevertheless, despite the short notice, the constitutional challenge could and should have been resolved without waiting for the Supreme Court of Canada to issue its ruling in J.J. This is what happened in other cases being prosecuted across the country and is what ought to have been done here.
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