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Charter - Section 11(b) - Trial Delay (4). R. v. Dos Santos
In R. v. Dos Santos (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from convictions for "sexual assault and extortion".
Here the court considered mistrials and their role in assessing Charter s.11(b) trial delay (ie. do they 'reset the clock?'):[1] This appeal calls for guidance concerning how mistrials affect an accused’s right to be tried within a reasonable time. I conclude that, unlike retrials following appeals, mistrials do not reset the clock. Rather, they should be assessed within the flexible and contextual framework provided by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Thus, unless the mistrial constitutes defence delay, the Crown must typically show that it is a discrete exceptional circumstance to justify above-the-ceiling delay resulting from it. This approach guards against complacency by incentivizing both the Crown and defence to prevent and reduce delay while also accounting for the wide range of circumstances that may cause a mistrial.
[2] In this case, the mistrial was a discrete exceptional circumstance. It was an unforeseeable result of a shared mistake of law which caused delay that the Crown could not reasonably remedy. The appellant was not only tried within a reasonable time, but also received a fair retrial with focused instructions that corrected the Crown’s prejudicial question.
[3] Accordingly, and for the reasons that follow, I would dismiss the appeal.
....
[20] I begin with the s. 11(b) ground of appeal. The appellant argues that the application judge erred in treating the mistrial as resetting the Jordan clock. The respondent Crown also concedes that this was an error. I agree. Unlike retrials following appeals, mistrials do not reset the clock. Instead, the Jordan framework continues to apply. However, this error does not affect the outcome because the application judge found that the mistrial constituted a discrete exceptional circumstance. I will first set out the applicable legal principles before turning to the facts.
(1) Legal Framework for Mistrial Delay
[21] The application judge addressed two legal questions: (1) whether a mistrial resets the Jordan clock, and (2) if not, how the Jordan framework applies. She analogized mistrials to appellate-ordered retrials and concluded that mistrials always amount to discrete exceptional circumstances.
[22] With respect, both conclusions are incorrect. A mistrial does not reset the Jordan clock. Instead, the delay that follows must be assessed under Jordan. A mistrial is not automatically an exceptional circumstance either. Instead, the Crown must show that it was reasonably unforeseeable or unavoidable and that the resulting delay could not reasonably be mitigated as Jordan requires. This is a fact-specific inquiry.
(a) Mistrials Do Not Reset the Jordan Clock
[23] In J.F., the Supreme Court held that retrials ordered on appeal reset the Jordan clock because the original trial has concluded, and the accused is no longer a person “charged with an offence” for the purposes of s. 11(b). The accused loses that status once the appeal is filed and only regains it, along with a reset Jordan clock, once the appellate court orders a retrial: at paras. 23-24, 55, 60.
[24] Both parties correctly acknowledge that J.F. does not govern this case. That decision addressed retrials ordered on appeal – not mistrials. Moreover, in R. v. Way, 2022 ABCA 1, 408 C.C.C. (3d) 506, leave to appeal refused, [2022] S.C.C.A. No. 44, the Court of Appeal of Alberta expressly contemplated and rejected the analogy between mistrials and appellate retrials.
[25] I agree with Way that mistrials are fundamentally different. Unlike an appeal, a mistrial does not end trial proceedings or remove the accused’s charged status. Rather, it is a disruption that triggers the need for a new trial within the same process. Thus, the matter remains governed by Jordan ceilings, not by a reset clock: Way, at paras. 19-22, 30.
[26] As well, the one-size-fits-all approach of resetting the clock is a poor fit for the diverse circumstances which trigger mistrials. “[M]istrials come in many flavours” and cover a wide “spectrum of situations”: R. v. Clifford, 2022 ABQB 509, 55 Alta. L.R. (7th) 135, at paras. 25-26. They are often unanticipated results of developments that are neither party’s fault — arising from issues like inadmissible evidence inadvertently provided to a jury, the discharge of a jury member, inadmissible and prejudicial communications between a witness and a juror, the need for counsel to withdraw, or bias discovered after a verdict: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 73-77; R. v. Melvin, 2017 NSSC 149, at paras. 2, 87. But they also sometimes stem from the conduct of the Crown and/or defence — for example, through improper jury addresses, disclosure breaches, or prejudicial or misleading trial strategy: see e.g., R. v. J.H.T., 2016 BCSC 2382, at paras. 155-74; R. v. Mack, 2007 ABQB 182, 458 A.R. 52, at paras. 77-80; Clifford, at paras. 26-29. This calls for more flexible approaches rather than a blanket response.
[27] Finally, resetting the clock after a mistrial would make it nearly impossible for an accused to establish unreasonable delay, since the accused would have to wait for the ceiling to be exceeded a second time: Way, at para. 25. That concern is present here: the application judge found the delay was “well within” the ceiling even though it was approximately half a year over Jordan’s default timeline. This approach risks fostering a culture of complacency and weakening the Crown’s longstanding obligation to prevent further delay following a mistrial: Way, at paras. 24, 27-30.
[28] In contrast, applying Jordan to mistrials is appropriate for two reasons.
[29] First, it allows courts to evaluate delay flexibly and contextually, based on the parties’ conduct and the circumstances of the case. While the Crown may still meet the burden of proving an exceptional circumstance, Jordan permits a nuanced, case-specific assessment that remains available to the accused.
[30] Second, it incentivizes both parties to act appropriately and to prevent and mitigate delay. It reinforces the Crown’s obligation to actively manage delay following a mistrial and avoid complacency: Jordan, at paras. 40, 75. Although some post-mistrial delay is inevitable, the Crown must take all reasonable steps to minimize it – for example, by promptly rescheduling the retrial: R. v. Brace, 2010 ONCA 689, 104 O.R. (3d) 32, at para. 14. This ensures that the passage of time does not prejudice trial fairness: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1220. At the same time, applying Jordan encourages the defence to act legitimately and move promptly to schedule a retrial, thereby avoiding deductions for defence delay: Way, at para. 41.
(b) Applying the Jordan Framework to Mistrials
[31] Because Jordan governs, I turn to how it applies to mistrial delay.
[32] The Jordan framework involves four steps:. Calculate the total time from the laying of the charge to the anticipated or actual end of trial;
. Subtract any defence delay to determine net delay;
. Assess whether the net delay exceeds the presumptive ceiling; and,
. If so, determine whether the Crown has rebutted the presumption of unreasonableness by proving exceptional circumstances.
See Zahor, at paras. 60–75. [33] Defence delay must be deducted. Accordingly, mistrials resulting solely or directly from illegitimate defence actions, post-mistrial delay arising solely or directly from defence unavailability, or mistrial delay that is waived by the defence may be deducted: Jordan, at paras. 60-66; Way, at paras. 33, 41; Mallozzi, at para. 42.
[34] If the net delay exceeds the ceiling, the Crown must prove exceptional circumstances. For mistrial delay, this requires showing that (1) the mistrial was reasonably unforeseeable or unavoidable, and (2) the resulting delay could not reasonably have been mitigated: Way, at para. 35, citing Jordan, at para. 69.
[35] While mistrials may often fall within the category of discrete exceptional circumstances – unforeseeable or unavoidable developments that derail a trial – this is not automatic: Way, at para. 36, quoting Jordan, at para. 73. Contrary to the application judge’s conclusion, mistrials are not presumed to be discrete exceptional circumstances. Such a presumption would encourage complacency. Rather, as the Court of Appeal of Alberta correctly held in Way, the Crown must always discharge its burden of proving exceptional circumstances under Jordan: Way, at paras. 33, 39. Mallozzi, which the application judge relied on, does not support a different approach. In that case, the Crown satisfied its burden because the jury selection issues were unforeseeable and addressed promptly: Mallozzi, at paras. 41-43.
[36] Thus, a contextual, fact-driven assessment is required. A mistrial may constitute an exceptional circumstance where it arises despite reasonable diligence by the Crown: Mallozzi, at para. 41. However, the Crown is unlikely to benefit from this exception if the mistrial was its fault. Likewise, the defence risks deductions for defence delay where its illegitimate conduct solely or directly produced the mistrial: Way, at para. 33, citing R. v. J.T., 2021 ONSC 365, at paras. 29-30.
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