Background
In November 2021, Elijah Jacques-Taylor and a co-accused were charged with indictable drug- and firearm-related offences following a routine R.I.D.E. program traffic stop, during which police found two loaded firearms — one on Jacques-Taylor’s person — and cannabis in plain view. Both accused elected trial before a provincial court judge, making Jordan’s 18-month presumptive ceiling applicable, with a ceiling date of May 18, 2023. The Crown did not sever the indictment.
The earliest available trial dates were August 8–10, 2023. Jacques-Taylor’s counsel was available in August, but co-accused’s counsel was not. When September dates were contemplated, Jacques-Taylor’s counsel was unavailable. The trial was ultimately scheduled for October 2–4, 2023, placing the anticipated end date at 22 months and 2 weeks from the date charges were laid — more than four months beyond the ceiling. Additionally, a case management judge had directed the parties to file any s. 11(b) applications within 120 days of a July 2022 hearing. Defence counsel verbally flagged a forthcoming application but did not file the notice until January 24, 2023, and did not complete the application until February 27, 2023 — nearly four months past the court-imposed deadline.
The case management judge deducted one month of defence delay (for Jacques-Taylor’s counsel’s September unavailability) and three months for the COVID-19 pandemic as a discrete exceptional circumstance, but declined to attribute the August delay — caused solely by the co-accused’s counsel’s unavailability — to Jacques-Taylor. The resulting net delay of 18 months and 2 weeks was found presumptively unreasonable and a stay of proceedings was granted. The Ontario Court of Appeal affirmed, holding that because the accused and co-accused had not proceeded as a collective, delay attributable solely to the co-accused could not be charged against Jacques-Taylor.
The Court’s Holding
In a 6–3 decision authored by Côté J. (Wagner C.J. and Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring), the Supreme Court allowed the Crown’s appeal, set aside the stay of proceedings, and remitted the matter for trial. The majority held that delays caused by a co-accused in the context of a joint trial can, in appropriate circumstances, amount to discrete exceptional circumstances under the Jordan framework — periods of delay that lie outside the Crown’s control, are reasonably unforeseen or unavoidable, and cannot reasonably be remedied by the Crown. The majority endorsed the four-factor test from the Ontario Court of Appeal’s decision in R. v. Tran, 2023 ONCA 532: (1) the joint trial is in the interests of justice; (2) the delay arose as a result of the joint trial; (3) the delay was unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated the delay. Applying those criteria, the August scheduling conflict caused by the co-accused’s counsel’s unavailability met all four requirements, and when deducted, the net delay fell below the 18-month ceiling and was therefore presumptively reasonable.
The majority also reinforced — and significantly strengthened — the obligation of all participants in the criminal justice system to proactively collaborate in moving cases to trial. Judges must use their broad case management powers to drive efficiency; Crown and defence must cooperate in good faith at every stage, including prompt disclosure, reasonable admissions, streamlined evidence, and swift resolution of pre-trial motions. Joint trials, the majority underscored, should be the norm rather than the exception — they reduce the overall number of trials, mitigate contradictory verdicts, conserve judicial resources, and protect s. 11(b) rights system-wide. The majority also found that defence counsel’s unexplained failure to meet the case management judge’s 120-day filing deadline was highly relevant to the overall reasonableness analysis, although, because the Crown had not sought a deduction for that period, it was not subtracted from the net delay in this case.
Karakatsanis J. dissented, joined by Martin and Moreau JJ. The dissent agreed that co-accused scheduling conflicts can constitute discrete exceptional circumstances, but would have dismissed the appeal on the ground that the Crown failed to carry its burden to take reasonable steps in response to the delay. The Crown was alerted to s. 11(b) concerns in July 2022 when trial dates were set beyond the ceiling, yet did not float alternative dates until approximately eight months later — two weeks after the formal application was filed — which was too late to demonstrate the proactive mitigation Jordan requires. The dissenters cautioned that attributing consequences to defence inaction effectively shifts the onus onto the accused and undermines the deliberate allocation of burdens in the Jordan framework.
Key Takeaways
- Delay caused by a co-accused’s counsel’s scheduling unavailability in a joint prosecution can qualify as a discrete exceptional circumstance, deductible from the net delay under Jordan, if the Crown satisfies the four Tran criteria: joint trial is in the interests of justice; delay arose from the joint proceedings; delay was unforeseen or unavoidable; and the Crown could not reasonably have remedied it.
- Joint trials are to be treated as the norm, not the exception — courts, Crown, and defence all bear an affirmative duty to proactively collaborate to achieve the systemic efficiencies joint proceedings provide, particularly given the strain on court resources and the s. 11(b) rights of accused across the system.
- Defence inaction — including failure to meet court-imposed case management deadlines for filing Charter applications — is relevant to assessing the overall reasonableness of delay; where defence conduct is unjustified and unexplained, courts should consider deductions for defence delay or find that the conduct amounts to a discrete exceptional circumstance.
- The Crown is held to a standard of reasonableness, not perfection; it cannot reasonably be expected to chase defence counsel who miss deadlines, though it must itself take reasonable and proactive steps to minimize delay.
Why It Matters
This decision resolves a question left open in R. v. Yusuf, 2021 SCC 2 — whether delays attributable to a co-accused can be deducted from the net delay of another accused as a discrete exceptional circumstance — and provides the first Supreme Court guidance on how the Jordan framework applies in joint prosecutions. By adopting the Tran criteria, the Court gives courts and counsel a workable test for navigating scheduling conflicts inherent in multi-accused proceedings, reducing the risk that stays of proceedings will be granted simply because co-counsel’s calendars cannot be reconciled within the presumptive ceiling.
More broadly, the decision sends a strong signal that s. 11(b) is a shared constitutional responsibility. The Court’s emphasis that all actors — judges, Crown, and defence — must proactively collaborate to move cases to trial efficiently reframes Jordan not merely as a Crown obligation but as a system-wide imperative. Criminal defence practitioners should be aware that unexplained delays in filing applications or advancing proceedings may be weighed against the accused, even if the Crown does not formally seek a deduction, and that courts are empowered and expected to use case management tools to hold all parties accountable.