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| John L. Hill |
Adam Dos Santos was charged in September 2019 with sexual assault, extortion, child luring and child pornography offences related to incidents between 2014 and 2017. The complainant, who was a teenager at the time, alleged that Dos Santos coerced her into sex by threatening to publish her intimate photos online. Dos Santos asserted that the relationship was consensual.
He chose a trial by jury on the sexual assault and extortion charges, later admitting guilt to distributing intimate images; the Crown withdrew the other charges. His first jury trial started in May 2022, within the adjusted Jordan ceiling of 32 months (to account for COVID-19 delays).
During that trial, the complainant testified that the events took place before the dates specified in the
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A retrial was scheduled for Oct. 31, 2022, a date beyond the modified Jordan limit. Dos Santos filed an application under s. 11(b) of the Charter to stay proceedings due to unreasonable delay. The trial judge dismissed the motion, ruling that (1) the mistrial reset the Jordan clock, citing R. v. J.F., 2022 SCC 17, and (2) alternatively, the mistrial was an exceptional circumstance because it resulted from an unforeseen, shared legal misunderstanding.
The jury convicted the appellant on Nov. 4, 2022, of sexual assault and extortion. He received a combined sentence of four years’ imprisonment. Dos Santos appealed (R. v. Dos Santos, 2025 ONCA 598). The main issue before the Appeal Court was whether the application judge erred in dismissing the s. 11(b) application. While the court addressed another potential ground for appeal, it had to determine if mistrials require resetting the Jordan clock.
The Appeal Court held that R. v. J.F. had been misinterpreted. The Supreme Court held that retrial orders on appeal reset the clock because the first trial had concluded and the accused was temporarily no longer “a person charged with an offence.” However, this reasoning does not apply to mistrials, which happen within the same trial process rather than after its completion.
Citing R. v. Way, 2022 ABCA 1, the court highlighted that a mistrial is simply a procedural interruption, not the conclusion of the trial. Therefore, it remains subject to the existing Jordan timeline. Resetting the clock would be inappropriate because mistrials can occur for various reasons, including inadvertent errors, jury issues or misconduct by the Crown or the defence. Applying a single rule for all cases would fail to recognize this variety.
Furthermore, restarting the clock would make it nearly impossible for an accused to demonstrate unreasonable delay, encouraging complacency and undermining the Crown’s obligation to manage time effectively after a mistrial.
Applying Jordan to mistrials instead guarantees two things:
Flexibility and fairness: courts can assess delay contextually and determine whether any post-mistrial delay qualifies as an exceptional circumstance and
Accountability: both Crown and defence remain motivated to act promptly; the Crown must take all reasonable steps to reschedule the retrial without delay, while the defence must avoid tactics that cause unnecessary postponement.
Accountability: both Crown and defence remain motivated to act promptly; the Crown must take all reasonable steps to reschedule the retrial without delay, while the defence must avoid tactics that cause unnecessary postponement.
In short, mistrials cause a pause but do not reset the Jordan clock. Delay continues to accrue, subject to case-specific analysis.
Because Jordan governs delay after mistrials, the court applied its four-step framework: calculate total delay from the laying of charges to the end of trial; subtract defence delay to find the net delay; determine whether the net delay exceeds the Jordan ceiling (30 months for Superior Court trials); and if it does, decide whether the Crown has proven an exceptional circumstance that justifies the delay.
For Dos Santos, the total delay was 36 months and 20 days. After deducting 108 days of defence delay (26 days conceded and 82 days waived when agreeing to the adjusted Jordan date), the net delay was 33 months and three days, which exceeded the 30-month limit. However, the court determined that the mistrial was a distinct exceptional circumstance. It resulted from a shared, good faith misunderstanding of the law regarding the indictment dates, rather than from bad faith or negligence. Neither the Crown nor the defence was at fault; both acted reasonably once the error was identified. The Crown promptly suggested corrective measures and quickly rescheduled the retrial. The five-month interval before the retrial was considered reasonable, considering the defence’s availability.
After deductions and recognizing the mistrial as an exceptional circumstance, the final net delay was 28 months and two days, which is well below the Jordan ceiling. Therefore, the delay was not excessive. There was no need to reset the Jordan clock. Dos Santos’s appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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