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Charter - Section 11(b) Trial Delay - Crown Delay. R. v. Jacques-Taylor [joint duty to ensure timelines met]
In R. v. Jacques-Taylor (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against an Ontario Court of Appeal ruling that upheld an Ontario Court of Justice Charter s.11(b) ['trial delay'] stay of proceedings.
Here the court considered the joint duty of the parties and the court to ensure that their Charter s.11(b) timelines are met:B. The Duty to Ensure That Cases Proceed to Trial Quickly
[40] As I noted at the outset of these reasons, in Jordan the Court took aim at the culture of complacency that had become deeply engrained in our criminal justice system. Faced with this dire problem, and recognizing the unworkability of the Morin framework, the Court devised a new s. 11(b) framework characterized by two presumptive ceilings (Jordan, at paras. 37‑38 and 46; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771). These ceilings were not merely intended to be aspirational targets, but rather were the points at which delays become presumptively unreasonable (para. 56). Indeed, the Court noted, Canadians rightly expect the criminal justice system to bring accused persons to trial expeditiously (para. 27). Justice delayed is justice denied. This is true not only for the presumptively innocent accused — who is forced to live with the sword of Damocles hanging precariously over his or her head — but also for victims and society as a whole, who are denied the certainty of closure that a judgment on the merits brings (paras. 2 and 19).
[41] In order to tackle this rampant culture of complacency, the Court charted a new course: Jordan. Under the new framework, the Court emphasized the duty of every actor in the criminal justice system to take personal responsibility for expediting criminal proceedings and complying with the new ceilings. This was not merely an invitation. Rather, it is a duty that is incumbent upon all: Crown counsel, defence counsel, and courts.
[42] Of course, given the unique quasi‑judicial status of Crown counsel as “ministers of justice”, they play a central role in bringing the accused to trial within a reasonable time and, in doing so, seeing that justice is done (Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23‑24; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 37). However, Crown counsel’s unique position in the criminal justice system should not be misunderstood as somehow requiring them to shoulder this burden alone.
[43] The defence, too, must ensure that proceedings move forward quickly and efficiently. The Court’s holdings in Jordan could not have made this any clearer: “This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives” (para. 5 (emphasis added); see also paras. 45 and 116‑17).
[44] In practice, this requires proactive good faith cooperation on the part of the defence when dealing with the Crown and the court. In order to ensure compliance with this duty, illegitimate or unjustifiable defence conduct that results in delays must give rise to deductions for those delays (J.F., at para. 32; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11; Cody, at para. 28). It cannot be stressed enough that the accused must be proactive in resolving issues promptly when they arise. Where the accused cannot adequately explain inaction, tardiness, or a lack of cooperation, courts should not hesitate to make deductions for defence delay or, in certain cases, find that defence conduct amounts to a discrete exceptional circumstance (J.F., at para. 33; Cody, at para. 33). Lest it be forgotten, s. 11(b) was always intended to be a shield, and not a sword with which to frustrate the ends of justice (Jordan, at para. 21; Morin, at pp. 801‑2; Askov, at p. 1222).
[45] The duty to proactively collaborate becomes particularly heightened where the procedural or legal complexities of the prosecution require increased coordination to avoid needlessly delaying proceedings. For instance, in cases where many pre‑trial motions are envisaged, the parties must — together and with the help of the case management judge — build a concrete plan that will allow them to expedite the proceedings. The parties should not hesitate to make admissions and resolve issues before they arise wherever this is reasonably possible. Moreover, procedural mechanisms that enhance trial efficiency should also be favoured. For example, the use of a blended voir dire may, depending on the particularities of the case, be a powerful mechanism for reducing the amount of time needed at trial (Jean v. R., 2020 QCCA 1455, at paras. 30 and 35; R. v. Cochrane, 2018 ABCA 80, 359 C.C.C. (3d) 210, at para. 5; R. v. Furlong, 2012 NLCA 29, 323 Nfld. & P.E.I.R. 77, at para. 28). The parties and the court should ask themselves whether issues can be decided in advance, or the proceedings shortened, by reliance on written rather than oral submissions (R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 57; R. v. Haevischer, 2023 SCC 11, [2023] 1 S.C.R. 416, at para. 102). Crown counsel should also consider whether the indictment contains essentially duplicative or superfluous counts that will serve only to complicate and prolong the proceedings (R. v. Di Paola, 2025 SCC 31, at para. 52; R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 78; R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 32). . R. v. Jacques-Taylor
In R. v. Jacques-Taylor (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against an Ontario Court of Appeal ruling that upheld an Ontario Court of Justice Charter s.11(b) ['trial delay'] stay of proceedings.
Here the court considered a 'defence delay' issue, and how it can impact on the assessment of Crown behaviour:[76] .... the case management judge’s conclusion that the issue of non‑compliance with his 120‑day case management deadline had “no application” to the case before him evinces legal error. Defence inaction was in fact highly relevant to the analysis of the reasonableness of the Crown’s overall conduct. Consequently, failure to consider this factor taints the analysis, amounting to an error of law (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 73; Sinclair v. Venezia Turismo, 2025 SCC 27, at para. 42).
....
(2) The Respondent’s Failure to Adhere to Case Management Deadlines Is Relevant to the Assessment of the Crown’s Overall Conduct
[85] I have already concluded that the scheduling conflict amounted to a discrete exceptional circumstance and that the ceiling was not exceeded. However, in light of the particular facts of this case, I nonetheless believe it necessary to highlight (1) the critical role that case management plays in protecting an accused’s s. 11(b) right and (2) the way in which defence conduct may inform the analysis of the reasonableness of the steps taken by the Crown to mitigate delays.
[86] In the present case, the failure of counsel for the respondent to respect the judge’s 120‑day case management deadline for filing the s. 11(b) application was unjustified and unreasonable. At the risk of repeating myself, Jordan was an unequivocal call to action to tackle the rampant culture of complacency. It was addressed to all actors within the criminal justice system, including the defence. While there is undoubtedly no judicial magic bullet for the problem of systemic delays, there are nonetheless a raft of measures that, taken together, serve to better protect the accused’s right to a trial within a reasonable time.
[87] One of the measures explicitly and repeatedly adverted to by the Court in Jordan and its progeny is case management. Case management decisions play an essential role in ensuring compliance with the Jordan ceilings (R. v. Morton, 2020 ABCA 250, 391 C.C.C. (3d) 288, at para. 61; R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185, at para. 16; R. v. Anderson, 2025 ONCA 172, 446 C.C.C. (3d) 476, at para. 17). They help the parties focus their attention on possible or likely sources of delay. This, in turn, better equips all involved with the means to anticipate and to mitigate delays, thereby expediting the proceedings (Jordan, at paras. 70 and 114). Accordingly, case management powers represent a powerful tool that trial judges must actively employ in order to minimize delays (Cody, at para. 38; Haevischer, at para. 76).
[88] Evidently, for case management decisions to be of any use in achieving this goal, they cannot merely be an invitation to the parties. Rather, they must be binding upon them (R. v. Oliver (2005), 2005 CanLII 3582 (ON CA), 194 O.A.C. 284 (C.A.), at para. 29; Anderson (C.A.), at para. 25). As Doherty J.A. underscored in Kazman, “[n]o one . . . can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts” (para. 16 (emphasis added)). Here, the case management judge made judicious use of that power by imposing a 120‑day deadline for the filing of any s. 11(b) applications.
[89] That is not to say that a party necessarily acts unreasonably in every case where it cannot respect a deadline. Genuine difficulties can and do arise. Parties may be frustrated in their attempts to meet deadlines despite diligent and good faith efforts to do so. If a valid excuse is provided, the court should accept it. Recall, however, that the protection under s. 11(b) is that of a shield, and not of a sword. Thus, for an excuse to be valid, reasonable measures need to have been taken. When a party becomes aware that it will be unable to respect a deadline, it is incumbent upon counsel to promptly bring this matter to the court’s attention so that alternative solutions may be found or extensions sought (Oliver, at para. 29). The parties are not held to a standard of perfection. Instead, they must show that their conduct is reasonable under the circumstances.
[90] In her reasons, my colleague asserts that the “Crown’s obligation to take reasonable steps does not depend on the accused’s failure to promptly assert their s. 11(b) right” (para. 131). I recognize that this may be true in the strictest sense. However, the jurisprudence of our Court is also clear that the parties “have a responsibility to take proactive measures to prevent [the presumptive ceilings] from being exceeded” and that this responsibility “lies upon both the Crown and the defence” (J.F., at para. 56 (emphasis added)). In other words, an accused is not allowed to simply lie in the weeds, whatever the intent may be. This is even more important when a case management judge has imposed a clear deadline on the parties. Even if one accepts, in abstracto, that there is no legal obligation to assert one’s s. 11(b) right, the accused is not entitled to “do nothing when they believe that their s. 11(b) right is not being or will not be respected” (J.F., at para. 58 (emphasis added)). Inaction, where it is unreasonable or motivated by an otherwise illegitimate purpose, may lead to periods of delay that can be attributed to the defence. But that is not all. It may also be relevant to the analysis of the reasonableness of the steps taken by the Crown to mitigate delay. That is not to say that the unreasonable conduct of an accused can, on its own, satisfy the Crown’s obligation to take reasonable steps. However, it may be highly relevant to the analysis, as it is here.
[91] In the instant case, counsel for the respondent indicated in July 2022 that the s. 11(b) application would be filed at a subsequent hearing that was to be held on September 26, 2022. She failed to follow through on this undertaking. She then proceeded to ignore the deadline of November 3, 2022, by several months. At no time did she believe it necessary to advise either the Crown or the court. It was reasonable for the Crown to believe that the respondent had abandoned his application. Moreover, when the respondent filed his notice of application, the Crown sought to move the s. 11(b) hearing up to early February 2023. However, the respondent still was not ready to plead his application roughly seven months after having given verbal notice of his intent to bring it. The Crown also sought earlier trial dates in April/May or July 2023.
[92] The conduct of the respondent during the pre‑trial proceedings, COVID‑19, and the joint nature of the proceedings are important contextual factors that cannot be ignored when analyzing the reasonableness of the steps taken by the Crown and the moment those steps were taken. As the Court noted in K.G.K., “[r]easonableness under s. 11(b) has always accounted for the reality that ‘[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources’” (para. 61, quoting R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 92 O.A.C. 345, at para. 27). The Crown cannot reasonably be expected to chase after defence counsel where they fail to meet deadlines set by the case management judge and agreed to by the parties. Under those circumstances, devoting additional time and resources that could be spent elsewhere would not be judicious. Of course, had the Crown remained passive in the face of proactive defence conduct, the conclusion concerning the reasonableness of the steps taken by the Crown may have been very different. But that is not the case here. The lateness of the application necessarily informs the analysis of the reasonableness of the Crown’s conduct. My colleague notes that s. 11(b) applications “should generally be heard well in advance of scheduled trial dates” so that the appropriate remedies can be ordered and breaches avoided (para. 143). I wholeheartedly agree. But if remedies are to be ordered at the appropriate time, then an application must actually be filed with the court, and said filing must be done in a timely manner.
[93] During oral submissions before us, counsel for the respondent was asked why the deadline was not adhered to and why neither the Crown nor the case management judge was informed of the reasons for the failure to file a s. 11(b) application before the deadline and of the respondent’s intention to still file one. Some of the reasons provided by counsel as to why the deadline had not been respected appear legitimate (for instance, time had been required to get prior approval from legal aid and then to prepare the application). On the other hand, counsel’s admission that the application had been brought at a time “that was convenient for them” cannot be construed as a legitimate reason (transcript, at p. 48). As has already been noted, case management deadlines are not mere invitations. Ignoring them for the sake of convenience or for tactical considerations is not a legitimate reason.
[94] Counsel’s statement stands in stark contrast to her own comments regarding the importance of case management decisions in protecting the right to a trial within a reasonable time. As she stated in oral submissions before us, “in terms of the Crown’s duty to provide an accused a trial within a reasonable time, perhaps one of the tools that the Crown has in order to do that is to resort to prompt case management” (transcript, at p. 69). This statement is perplexing given the respondent’s conduct at the pre‑trial stage. Case management was precisely the tool that the Crown employed here — and the case management judge’s directive was ignored.
[95] Finally, as an aside, I note that the Crown did not ask the Court to deduct the period resulting from the respondent’s inaction as defence delay (transcript, at pp. 113‑14). I acknowledge that this was not a case where the two co‑accused proceeded as a collective. Had that been the case, the delay caused by one would necessarily have also been attributable to the other as defence delay (R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, at para. 195; R. v. Potter, 2020 NSCA 9, 385 C.C.C. (3d) 1, at paras. 361‑63; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 38). However, even where two co‑accused do not proceed collectively, defence delays caused by one may still also be attributed to the other. This will be the case where the other accused fails to act reasonably in the face of the delay. In such a case, the accused would not be held accountable for the delay caused by his or her co‑accused, but rather the accused would be held accountable for his or her own action (or inaction) in the face the delay.
[96] This approach is hardly novel. In Ste‑Marie, the Court held that the inaction of an accused in the face of delay caused by his co‑accused could be characterized as defence delay: “Although the conflict of interest did not directly involve him, he never expressed concern about the delays caused by his co‑accused. Moreover, the prosecution offered him his own preliminary inquiry several times, but he always refused” (para. 10). This approach is entirely consistent with the individualized approach under Jordan. It accords with the duty that is incumbent on the accused, and all parties, to take proactive steps to ensure that the case proceeds quickly to trial. The defence “should not be allowed to benefit from its own delay‑causing conduct or from its tactics aimed at causing delay” (Ste‑Marie, at para. 11 (emphasis added)).
[97] In the instant case, notice of a forthcoming s. 11(b) Charter application was given verbally in July 2022. However, counsel for the respondent waited until late January 2023 to file a notice of application and did not file the completed application until the end of February. This complete absence of communication, coupled with the failure to adhere to a clear case management deadline, was unjustified and unreasonable. As Cromwell J. (dissenting, but not on this point) remarked in Jordan, “[u]nreasonable actions by the accused may take diverse forms, such as . . . failure to attend court appearances or to give timely notice of intended Charter applications” (para. 193 (emphasis added)). However, given that the Crown explicitly declined to ask that this period be subtracted as defence delay, I will abstain from doing so.
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