Fourteen months after being charged, you may have been to court eight or nine times and spoken for perhaps a total of two minutes. The file gets adjourned for disclosure, then for a Crown pretrial, then for a judicial pretrial, then to set a date. When the trial coordinator finally offers a date, it is most of a year away. Your employer is asking questions, your conditions still apply, and you wonder whether there is any limit to how long this can go on.
There is a limit, and it comes from the Charter. Section 11(b) says anyone charged with an offence has the right to be tried within a reasonable time. In 2016, in R. v. Jordan, the Supreme Court of Canada replaced an older and looser approach with fixed time ceilings. A decade of case law has since filled in the details, and Parliament has now changed what can happen when the ceiling is broken, at least for some offences.
This article is general information about how delay works in Ontario criminal cases. It isn’t legal advice. Delay calculations turn on the exact history of a file, and two cases with the same total length can come out very differently.
The Two Numbers Everyone Quotes
Jordan set presumptive ceilings of 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice. A Superior Court case includes jury trials and judge-alone trials in that court. It also applies the 30-month figure to a provincial court trial that follows a preliminary inquiry.
The clock starts when you are charged, which generally means when the information is sworn. Time police spent investigating before that doesn’t count, even if you knew you were a suspect. It stops at the actual or anticipated end of the trial. People are often surprised by that endpoint. The question is not when the trial starts, but when evidence and argument are expected to wrap up. If a trial is scheduled to begin at month 17 and needs five days spread across three months, the case may well be past the ceiling.
Young people are covered too. The Supreme Court held in R. v. K.J.M. that the same ceilings apply in youth court, though the youth of the accused can be considered in deciding whether a delay below the ceiling is unreasonable.
In Brampton, both levels of court sit in the same building at 7755 Hurontario Street, so the location of your case tells you nothing about which ceiling applies. Your election and the type of offence decide that. A hybrid charge the Crown proceeds with summarily stays in the Ontario Court of Justice. An indictable charge where you elect a judge and jury goes up.
Doing the Arithmetic
The total number of months is only the first step. The calculation runs in stages.
- Calculate the total delay from the charge to the anticipated end of trial.
- Subtract defence delay. What remains is called net delay.
- Compare net delay with the ceiling.
- If net delay is above the ceiling, it is presumed unreasonable, and the Crown has to justify it through exceptional circumstances.
- If net delay is below the ceiling, the burden stays with the defence, and the application is much harder.
Most contested hearings are really arguments about steps two and four. Every adjournment on the record may become a small debate about who should wear those weeks.
Time That Gets Charged to the Defence
Defence delay comes in two types. The first is waiver, where the accused clearly and with knowledge of the right gives up reliance on a period of time. A waiver may be explicit, or it can be implied from conduct, but it must be clear. Agreeing to a date because it is the only one offered is not automatically a waiver.
The second type is delay caused solely by the defence. The clearest examples are tactics designed to slow things down, such as frivolous applications. The Supreme Court added an important category in Jordan and in the follow-up decision, R. v. Cody: if the Crown and the court are ready to proceed and the defence isn’t, the resulting time usually falls on the defence. So when the court offers dates in June and your lawyer’s first opening is in October, those months may be subtracted.
That doesn’t mean all defence activity counts against you. Time legitimately needed to prepare and respond to the charge, including reasonable applications, isn’t deducted just because the defence took a step. Asking for outstanding disclosure is not stalling. Neither is taking reasonable time to retain a lawyer. But changing lawyers on the eve of trial, or missing a court date, can produce a deduction.
Here is a hypothetical. Suppose a person charged in Peel has a trial set to end at month 20 in the Ontario Court of Justice. Early on, their lawyer asked for a three-month adjournment because of a personal scheduling conflict, even though the Crown and the court had earlier dates available. If those three months are deducted, net delay is 17 months, which falls under the ceiling. The same 20 months, with no such adjournment, would be presumptively unreasonable. That single entry in the transcript might decide the entire application.
Exceptional Circumstances
When net delay exceeds the ceiling, the Crown can rebut the presumption only by showing exceptional circumstances. These must be reasonably unforeseen or unavoidable, and the Crown must have been unable to reasonably remedy the delay they caused. There are two broad kinds.
The first is discrete events. A key witness falling seriously ill, a judge becoming unavailable, or a trial going unexpectedly long despite good planning may qualify. The Supreme Court also recognized in Cody and in Jordan that the period of delay from a discrete event gets subtracted, but only the portion that couldn’t reasonably have been avoided. The system is expected to respond, and if the Crown could have prioritized the case or changed course, some of that time remains on the clock.
The second is a particularly complex case, one where the nature of the evidence or the issues demands an unusual amount of time. Long wiretap investigations, a large number of accused, and voluminous disclosure may support the claim. Calling a case serious is not enough, and neither is pointing to a generally busy courthouse. Institutional delay and backlogs aren’t exceptional circumstances in themselves. Courts in Ontario have also had to consider the effect of the COVID-19 suspension of court operations, and time connected with it has been treated in many cases as a discrete event. How much applies to a specific file depends on the facts.
The Supreme Court confirmed the ceilings again in R. v. Hanan, a short 2023 decision that stressed that the framework must be applied as it was written. Trial judges may not create extra categories of excused delay to soften it.
When You Are Under the Ceiling
An accused can still bring a section 11(b) application if the net delay is under the ceiling. Jordan says such applications should succeed only in clear cases. The defence must show two things: that it took meaningful, sustained steps to move the case along, and that the case took markedly longer than it reasonably should have.
This is the reason why a defence lawyer may repeatedly put on the record that they want earlier dates, that they’re available, and that disclosure is outstanding. A paper trail of diligence is needed for this route. Quiet acceptance of every adjournment makes the argument nearly impossible.
The Remedy, and the Change for Later Offences
For years, a finding of unreasonable delay meant only one thing: a stay of proceedings. The charges came to an end with no finding of guilt or innocence. The Ontario Court of Appeal rejected a Crown argument for softer remedies in R. v. Charity, repeating that once delay becomes unreasonable there must be finality.
Parliament has since acted. The Protecting Victims Act added a Part to the Criminal Code on unreasonable delay. It applies to offences committed on or after July 18, 2026. For those offences:
- A court may stay the case for unreasonable delay only if no other remedy would be appropriate and just in the circumstances.
- In making that choice, the judge must consider the stage of the proceedings when delay became unreasonable, the likely effect of a stay on any victim, the prejudice to the accused, public confidence in the justice system, and society’s interest in a decision on the merits.
- Courts must also consider a list of factors about complexity, with particular attention to pretrial and mid-trial applications, and certain late-filed applications in sexual offence cases can be excluded from the count.
- Prosecutors must take reasonable steps to inform victims that an application has been filed and when it is decided.
The ceilings were not repealed. What the legislation doesn’t do is list the other remedies, and defence organizations have argued that it is inconsistent with long-standing Supreme Court authority on section 11(b). Expect constitutional challenges and evolving case law. For anyone charged with an offence alleged before that date, the earlier law on stays should continue to govern, but the date of the alleged offence is something to confirm with a lawyer at the start, particularly where an allegation spans a period of time.
What You Can Do While the Clock Runs
You don’t manage the calculation yourself, but what you do affects it.
Keep a simple log. Note each court date, what happened, who asked for the adjournment, and why. Transcripts are the official record, and your notes help your lawyer decide which ones to order.
Show up, and keep your lawyer reachable. A missed appearance can cost months and possibly lead to a warrant. Time lost because of an accused’s own absence is a textbook deduction. If you have to change counsel, do it early.
Move on legal aid or retainer issues quickly. Courts allow reasonable time, but a long unexplained gap while you decide whether to hire someone can be a problem.
Follow up on disclosure. If something was promised and hasn’t appeared, have your lawyer request it in writing and raise it in court. Our overview of criminal law services describes the sort of matters where this comes up.
Be realistic about trial estimates. An honest estimate helps the court book enough time. Underestimating can produce the very continuation dates that push a case over the ceiling, and the responsibility for that may be argued later.
Consider whether to raise it early. An application is usually brought before trial, on a schedule set by the court, with transcripts and a chronology. It generally shouldn’t wait until the last moment. A court may also expect the defence to speak up as the ceiling approaches.
What a Stay or Other Remedy Actually Means
Where a stay is entered, the charge doesn’t technically end in an acquittal, but the case is over and the Crown can’t simply restart it. There is no verdict and no criminal conviction. A police record of the charge may still exist, and you might need to take separate steps about fingerprints and records. The Crown can appeal the ruling.
Should the application fail, the trial goes ahead, and a delay argument may be raised on appeal if you’re later convicted. It’s also worth remembering that delay is not a shortcut around a weak or strong case. Many accused people want their name cleared on the evidence. Sometimes the most sensible plan is to push for the earliest possible trial instead of hoping the clock runs out. Hoping for delay as a strategy can backfire, because the same behaviour that slows a case is what gets deducted.
If your matter is before the Brampton courts and the timeline concerns you, a lawyer can review the transcripts and chronology and tell you where it really stands. You can contact the firm to arrange a consultation. Bring every piece of paper with a date on it.