Background
On August 19, 2020, two mass shootings occurred in Toronto within an hour and a half of each other. In the first, seven masked and hooded men fired at least 36 rounds at residents of a housing complex. In the second, five masked and hooded men fired at least 50 rounds at residents of a nearby community. Following investigation, J.D. — a young person whose identity is protected by a publication ban under the Youth Criminal Justice Act — was charged with firearm offences on the basis that he participated in both shootings. He was convicted after a trial before Justice Joseph Callaghan of the Ontario Court of Justice on March 2, 2023.
At trial, the Crown relied on Leaney identification evidence — lay opinion evidence from witnesses who, having reviewed surveillance video, identified J.D. as one of the shooters. Police officers familiar with J.D. also identified him on the footage. This evidence was corroborated by a witness, J.A., who confirmed he had lent his car to J.D. and two other men on the day of the shootings, and that the vehicle shown in the videos resembled the car he lent. The trial judge found an overwhelming case that J.D. was one of the shooters in both incidents and entered findings of guilt.
J.D. appealed on three grounds: (1) the trial judge erred in permitting the Crown’s late and inadequate Leaney application to proceed; (2) the trial judge erred in dismissing his application under s. 11(b) of the Canadian Charter of Rights and Freedoms for trial within a reasonable time; and (3) the trial judge’s reasons on identity were insufficient to support the findings of guilt.
The Court’s Holding
The Court of Appeal for Ontario, per Huscroft, Thorburn, and Dawe JJ.A., dismissed the appeal on all three grounds. On the Leaney application, the court held that while the Crown’s application was undeniably late — filed only four days before the scheduled trial start — the trial judge acted within his discretion under r. 5.3 of the Criminal Rules of the Ontario Court of Justice by addressing it on the merits. The trial judge appropriately remedied any prejudice by granting an adjournment, allowing the Crown to supplement its disclosure and the defence to review all materials, and by waiving the requirement for a written defence response. The court found no basis to interfere with that discretionary decision.
On the s. 11(b) application, the court upheld the trial judge’s calculation of a net delay of 17.1 months (519 days), below the 18-month presumptive ceiling for provincial court cases established in R. v. Jordan, 2016 SCC 27. The court affirmed each of three contested deductions: 98 days attributed to defence delay due to counsel’s unavailability for dates offered by the trial coordinator; 20 days as a discrete exceptional circumstance reflecting both parties’ underestimation of the time needed to review surveillance video; and 60 days for pandemic-related delay, which the trial judge was entitled to assess based on his knowledge of local court conditions and evidence of how COVID-19 slowed the disclosure process.
On the sufficiency of reasons for the identity finding, the court found no error. The trial judge had acknowledged the defence position, engaged with the evidence connecting J.D. to the vehicles and the other participants in the shootings, noted physical similarities between J.D. and one of the shooters visible on video, and found the cumulative case overwhelming. The reasons adequately explained why the findings of guilt were entered.
Key Takeaways
- A trial judge retains discretion to hear a late Crown application on the merits where the resulting prejudice can be remedied — for example, through an adjournment and waiver of procedural requirements — without a stay or dismissal of the application.
- Where defence counsel is unavailable for continuation dates offered by the court and Crown after a Crown-caused adjournment, the resulting delay may properly be attributed to the defence for Jordan purposes; a prior ruling holding the Crown responsible for initial delay does not automatically extend to all subsequent scheduling gaps.
- A global deduction for pandemic delay in a Jordan analysis is permissible where the trial judge identifies a link between COVID-19 conditions and specific delays in the case, even without a precise day-by-day accounting, provided it is grounded in evidence and the judge’s knowledge of local court conditions.
- Leaney identification evidence from lay witnesses familiar with the accused, corroborated by police officer identification and independent witness testimony, can support a finding of guilt beyond a reasonable doubt on the issue of identity.
Why It Matters
This decision reinforces the scope of trial judge discretion in managing procedural irregularities by the Crown, confirming that a late application need not be dismissed outright if the court can fashion a remedy that cures any resulting prejudice. For practitioners, it underscores that both parties bear responsibility for timely disclosure and case management — a defence obligation to follow up on known deficiencies can factor into how courts apportion blame for delay.
On the s. 11(b) front, the case adds to the growing body of post-pandemic Ontario appellate authority — including R. v. K.D., 2025 ONCA 639 — confirming that COVID-19-related deductions remain available under Jordan where trial judges can articulate a sufficient causal connection to delay, even where the link is based partly on institutional knowledge rather than granular documentary proof.