Background
Robert Vrbanic and Sarah Josipovic were charged with drug trafficking offences arising from a large-scale investigative project that resulted in charges against 18 individuals — a so-called “project prosecution.” The investigation generated approximately 68 gigabytes of electronic disclosure, including over 10,000 audio intercepts, 1,000 surveillance reports, and thousands of surveillance photographs and videos. The Crown proactively sought case management and organized the 18 accused into 10 prosecution groups. Vrbanic appeared in two groups (groups 5 and 8), while Josipovic was in group 5 only.
A central feature of the prosecution was a group Garofoli application — a challenge to wiretap authorizations — that several accused in group 8 intended to bring. Believing the respondents also intended to participate in the Garofoli application with respect to their group 5 charges, the Crown scheduled their trial dates beyond the 18-month presumptive ceiling established in R. v. Jordan, 2016 SCC 27. In fact, the respondents had no intention of relying on the application for the group 5 charges, and their counsel raised no concern about the later dates, simply accepting the earliest ones offered.
Vrbanic and Josipovic applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. The application judge granted the stay, finding the net delay — ultimately calculated at 18 months and 4 days over the ceiling — was not justified by the case-complexity exception under Jordan because the respondents were not participating in the Garofoli application and therefore lacked the interconnection of pre-trial applications that had made a related prosecution in the same project complex. A majority of the Ontario Court of Appeal dismissed the Crown’s appeal, deferring to the application judge’s complexity assessment. The dissenting judge would have allowed the appeal on the basis that the Crown’s scheduling mistake was reasonable given the scale of the prosecution.
The Court’s Holding
The Supreme Court of Canada allowed the Crown’s appeal unanimously (judgment rendered at hearing on December 4, 2025; reasons delivered May 29, 2026), set aside the stay of proceedings, and remitted the matter for trial. Writing for eight judges, Chief Justice Wagner held that the application judge committed two errors warranting appellate intervention: he failed to engage with the reasonableness of the Crown’s conduct in all the circumstances when assessing the second element of the threshold stage of the case-complexity analysis, and he miscalculated the net delay. Assessed afresh, the complexity of the prosecution plainly justified the four-day overage above the Jordan ceiling.
The majority clarified the two-stage structure of the case-complexity exception. At the threshold stage, the Crown must prove (1) that the case is particularly complex — assessed holistically by reference to hallmarks such as voluminous disclosure, a multiplicity of pre-trial applications, or large joint proceedings — and (2) that the Crown took reasonable steps to proactively mitigate the delay caused by that complexity. On the second element, where the Crown’s plan failed due to defence non-cooperation, that failure does not undermine the Crown’s proactive efforts. If the threshold is met, the court proceeds to the justification stage and weighs whether the actual net delay is justified by the degree of complexity, avoiding undue emphasis on the precise quantum of overage. Here, the voluminous disclosure, multiplicity of pre-trial proceedings, and joint nature of the prosecution satisfied the threshold, and the Crown’s use of case management and prosecution groups constituted reasonable mitigation steps despite the scheduling error that was at least partly attributable to defence counsel’s failure to clarify the respondents’ position on the Garofoli application.
The majority declined the Crown’s invitation to graft a residual judicial discretion onto the Jordan framework — a discretion that would permit judges to decline to find a s. 11(b) breach even where net delay exceeds the ceiling. Such a discretion would restore the unpredictable interest-balancing approach that Jordan replaced and is unnecessary given the flexibility already built into the case-complexity analysis. Justice Rowe concurred in the result but wrote separately to argue that Jordan should be developed to include a structured residual discretion — weighing charge seriousness, the predictability of delay when key decisions were made, and the extent of the overage — to address the growing number of stays in serious prosecutions and better reflect contemporary realities of criminal litigation.
Key Takeaways
- The case-complexity exception under Jordan has two stages: a threshold stage requiring proof of particular complexity and reasonable Crown mitigation steps, and a justification stage asking whether the net delay is proportionate to the degree of complexity — courts must not focus disproportionately on the precise amount of overage.
- Where Crown scheduling errors occur in a complex multi-accused prosecution, the reasonableness of the Crown’s conduct must be assessed in all the circumstances, including any failure by defence counsel to cooperate or to flag misunderstandings in scheduling; silence or passive acceptance by defence can weigh against a stay.
- The majority rejected adding a residual judicial discretion to decline to find a s. 11(b) breach, holding the existing Jordan framework is sufficiently flexible through the case-complexity exception and case management powers; Justice Rowe’s concurrence signals ongoing pressure for that question to be revisited.
- Timely justice is a shared responsibility — Crown, defence, courts, and legislatures all bear obligations to combat delay; defence counsel’s duty to their client does not absolve them of a responsibility to cooperate reasonably in advancing proceedings.
Why It Matters
This decision is the Supreme Court’s most detailed elaboration of the Jordan case-complexity exception since that framework was introduced in 2016, and it arrives against a backdrop of significant public concern about the volume of serious criminal charges being stayed. By articulating a structured two-stage analysis and making clear that a court must consider the reasonableness of all parties’ conduct — not just the Crown’s — the majority provides lower courts with clearer tools to evaluate s. 11(b) applications in large, multi-accused prosecutions without reflexively granting stays for modest ceiling overages attributable to the genuine complexity of the case.
Justice Rowe’s concurrence, though not binding, is a significant signal. Six of the nine judges expressly declined to introduce a residual discretion, but Rowe J.’s detailed critique of Jordan‘s fit with modern criminal litigation — pointing to legislative and jurisprudential changes since 2016 that have lengthened trials — places that question squarely on the table for a future case. Prosecutors, defence counsel, and trial judges managing large project prosecutions should pay particular attention to the Court’s guidance on proactive mitigation, case management, and the obligation of defence to clarify their positions early in the scheduling process.