Court of Appeal for Ontario: Mistrials do not reset the Jordan clock

Great work from Cassandra DeMelo and Jolene Hansell in R v Dos Santos, 2025 ONCA 598. Mistrials do not reset the Jordan clock. To deduct delay flowing from a mistrial, the Crown must meet exceptional circumstances test. In other words, the Crown must prove both that the mistrial was beyond their control and that they acted appropriately after it was granted. While often a mistrial will qualify, “the Crown is unlikely to benefit from this exception if the mistrial was its fault”: see para 36.


My view is that the battleground in most Dos Santos-type cases will be the first branch of the test. The Crown almost always responds quickly after a mistrial to get new dates. The question will be whether the mistrial is the Crown’s fault. If so, they will not be able to deduct the delay.

Counsel seeking mistrials should govern themselves accordingly. Where the Crown has made an inflammatory submission, tendered inadmissible evidence, or asked an improper question, counsel should clearly identify that as the cause of the mistrial. Sometimes the Crown or court will say “it’s up to you”—reject that line of thinking in strong terms. If it were up to you, the Crown conduct requiring a mistrial would not have happened at all. You are forced to ask for this serious remedy because nothing else will cure the prejudice to your client.


Link to the decision here: https://coadecisions.ontariocourts.ca/coa/coa/en/item/23527/index.do