Background
Kalib Rahi was convicted of human trafficking-related offences following a jury trial before Justice Nakatsuru of the Ontario Superior Court of Justice, with convictions entered on December 8, 2022. Prior to trial, Rahi brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, arguing that the delay between his charge and trial exceeded the 30-month presumptive ceiling established by the Supreme Court of Canada in R. v. Jordan, and that a stay of proceedings was warranted.
The application judge, Ducharme J., calculated total delay at over 48 months. He deducted over 13 months as defence delay and a further 24 months as exceptional circumstances attributable to the COVID-19 pandemic — specifically, the period during which jury trials were suspended in Ontario — bringing the net delay below the 30-month ceiling. He dismissed the s. 11(b) application and declined to order a stay. Rahi appealed solely on the s. 11(b) ruling.
The Court’s Holding
The Court of Appeal dismissed the appeal. The court accepted the Crown’s concession that the application judge had double-counted by applying a defence delay deduction to an adjournment period that overlapped with the COVID deduction — an error of approximately five months. However, the court found this error immaterial: even excluding the double-counted portion, total net delay remained well below the 30-month presumptive ceiling once the 24-month COVID deduction was properly applied.
The court affirmed that the application judge’s finding — that Rahi consistently requested a jury trial throughout the proceedings — was open to him on the record and disclosed no error. The 24-month deduction for the pandemic-related suspension of jury trials was likewise upheld as a reasonable exercise of the application judge’s discretion to identify exceptional circumstances beyond the Crown’s control. The court also affirmed the refusal to stay proceedings as a discretionary remedy, noting the application judge’s findings that the Crown made efforts to advance the matter and that the case did not take markedly longer than it reasonably should have.
Key Takeaways
- The full duration of Ontario’s jury-trial suspension during the COVID-19 pandemic can be deducted as an exceptional circumstance beyond the Crown’s control when calculating net delay under the Jordan framework.
- A minor double-counting error by an application judge will not vitiate a s. 11(b) ruling if the corrected calculation still places total delay below the presumptive ceiling.
- A finding that an accused consistently insisted on a jury trial is a factual determination entitled to deference on appeal.
- Even where net delay falls below the 30-month ceiling, a court may consider whether a stay is appropriate; a finding that the Crown diligently advanced the proceedings will support declining that remedy.
Why It Matters
This decision reinforces the appellate consensus that pandemic-era court closures constitute genuine exceptional circumstances capable of substantially reducing net delay in Jordan calculations. Defence counsel challenging convictions in cases where COVID caused prolonged court shutdowns face a high bar in arguing those delays should be attributed to the Crown.
The ruling also illustrates the limited weight appellate courts will place on calculation errors by application judges when the bottom-line result remains unchanged after correction — a practical reminder that s. 11(b) appeals must identify errors that actually affect the outcome rather than technical miscalculations that leave the net delay figure comfortably below the ceiling.