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Charter - Section 11(b) Trial Delay - Discrete Exceptional Circumstances. 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 considers the Charter s.11(b) role of delays caused by a co-accused in a joint prosecution context, here as a 'discrete exceptional circumstance':D. Delays Caused by a Co‑Accused Can Amount to Discrete Exceptional Circumstances
[57] On the other hand, of course, it must not be forgotten that an accused’s s. 11(b) right cannot simply be sacrificed on the altar of efficiency (Jordan, at para. 79; Vassell, at paras. 4‑5). At its core, the right enshrined in s. 11(b) is one that is reserved for an individual accused of a crime: “Any person charged with an offence has the right . . . to be tried within a reasonable time”. This right is constitutionally guaranteed and cannot be subordinated to considerations of pure expediency. The “reasonable time” referred to in this provision means one that adheres to the Jordan framework.
[58] That said, although the ceilings are not aspirational targets, they do remain presumptive. The presumption can be rebutted by invoking either or both of the two exceptional circumstances identified in Jordan, and there is no reason why these exceptions cannot be applied to delays resulting from proceeding jointly. As Fairburn J. (as she then was) remarked in R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512, at para. 47, “the concept of ‘reasonable time’ within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.”
[59] The Court of Appeal for Ontario has already held that delays resulting from joint trials can be considered exceptional circumstances. In R. v. Tran, 2023 ONCA 532, 429 C.C.C. (3d) 55, the accused and two other persons were jointly charged in the course of a large‑scale drug investigation. Delays were occasioned by a change of counsel for the two co‑accused. When replacement dates were sought, none were available to Mr. Tran’s counsel inside the period of reasonable delay. The net delay exceeded the 18‑month ceiling by nine days. As a result, Mr. Tran filed a s. 11(b) application. The application was dismissed, and he was subsequently convicted. Mr. Tran’s appeal was dismissed. Paciocco J.A., writing for the court, noted that the Crown can rebut the presumption of unreasonable delay by establishing that the delay flowing from proceeding jointly amounts to a discrete exceptional circumstance that must be deducted. The Crown needs to satisfy the following four criteria: (1) the joint trial is in the interests of justice; (2) the delay has arisen as a result of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay.
[60] More recently, in R. v. Singh, 2025 ONCA 843, Tulloch C.J.O. reaffirmed Tran’s holdings on this question and underscored the importance of reconciling an accused person’s right under s. 11(b) of the Charter with society’s interest in joint trials. He noted that “[a]pplying Jordan mechanically without meaningfully accounting for [society’s interest in conducting joint trials] risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions” (para. 1).
[61] The Court of Appeal for Ontario is not alone in this regard. Identical criteria have also been adopted by the British Columbia Court of Appeal. In R. v. Singh, 2016 BCCA 427, 344 C.C.C. (3d) 516, the Court of Appeal held that delays occasioned by scheduling conflicts in a joint trial can amount to exceptional circumstances. In a way largely analogous to what later transpired in Tran, a co‑accused sought multiple adjournments that pushed the net delay beyond the presumptive ceiling. The Court of Appeal held that delays caused by a co‑accused can amount to exceptional circumstances that are deductible from another co‑accused’s net delay (paras. 80 and 83). The court went on to note that while severance may be appropriate under certain circumstances, it is not a panacea, and the interests of justice “may dictate otherwise” (para. 81). The scheduling conflict that resulted from the adjournment in question was held to be both reasonably unforeseen and reasonably unavoidable. Moreover, the Crown had taken reasonable steps to expedite the proceedings once the delay had crystallized. Given that the trial judge had concluded that proceeding jointly was in the interests of justice and had twice rejected severance, it would have been unreasonable to require that the Crown unilaterally sever the proceedings by preferring a separate indictment against the co‑accused. Accordingly, the delay occasioned by the adjournment sought by the co‑accused constituted a discrete exceptional circumstance (paras. 82‑83).
[62] While Singh is distinguishable from Tran on the facts — insofar as the trial judge twice rejected the Crown’s request for severance in Singh — the British Columbia Court of Appeal has subsequently held in at least one decision that scheduling conflicts between defence counsel can amount to a discrete exceptional circumstance that can be deducted from the net delay for the co‑accused (R. v. Rai, 2019 BCCA 377, 381 C.C.C. (3d) 1, at paras. 153‑63; see also R. v. Eheler, 2021 BCCA 316, 74 C.R. (7th) 29, at para. 74).
[63] Finally, at least one other intermediate appellate court has recognized the general principle that delays resulting from a co‑accused’s conduct may be deducted from the net delay of the accused as a discrete exceptional circumstance (Klassen, at paras. 88 and 94‑95).
[64] I agree with the approach to exceptional circumstances arising from joint trials that was outlined by Paciocco J.A. in Tran. It is entirely consistent with the Jordan framework, and I adopt the four criteria that he outlines therein.
[65] Firstly, the Crown must demonstrate that proceeding jointly is in the interests of justice. When determining whether the Crown has satisfied its onus at this threshold stage, judges should turn their minds to traditionally relevant criteria, such as, but not limited to, the following elements:.... the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co‑accused persons . . ..
(Last, at para. 18) [66] Given that the analysis takes place in the context of adjudicating s. 11(b) applications, judges should also give significant consideration to the gains in efficiency that will be generated throughout the system by proceeding jointly, as well as the likely negative knock‑on effects that will occur if severance is ordered. Equally, judges must keep in mind that the presumption in favour of joint trials is strong and that, in most cases, it will not be difficult for the Crown to satisfy the evidentiary burden at this threshold stage. Even in cases where additional delay is caused by proceeding jointly, the presumption in favour of proceeding jointly will not easily be displaced. This is because “delay caused by proceeding against multiple co‑accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial” (Vassell, para. 6).
[67] That presumption is not absolute, however. In this regard, Vassell provides a useful illustration of circumstances where a joint prosecution may cease to be in the interests of justice: for instance, where a co‑accused repeatedly waylays the proceedings and, in doing so, prevents his co‑accused from moving the case forward expeditiously. A judge may conclude that, under such circumstances, proceeding jointly is no longer in the interests of justice (Vassell, at paras. 5‑7). I note, parenthetically, that it is not necessary for the accused to seek severance in order to demonstrate that a joint trial is not in the interests of justice.
[68] Secondly, the Crown must demonstrate that the delay arises as a direct result of the joint proceedings. To take the example of Tran, the change of counsel for the two co‑accused would not have affected Mr. Tran’s trial had it not been for the Crown’s decision to jointly indict all of the co‑accused. Even if the Crown fails to demonstrate that the delay flows directly from proceeding jointly against the co‑accused, this does not foreclose the possibility of proving that the period of delay still amounts to a discrete exceptional circumstance. However, the Crown will need to allege reasons other than proceeding jointly.
[69] Thirdly, and in line with this Court’s holdings in Jordan, the Crown must demonstrate that the exceptional circumstance was either (a) reasonably unforeseen or (b) reasonably unavoidable. In making this assessment, judges must keep in mind that “delay caused by proceeding against multiple co‑accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial” (Vassell, at para. 6; see also Jordan, at para. 77). In other words, such delay may not be unforeseen, but sometimes it is unavoidable.
[70] Fourthly and finally, the Crown must show that it could not have ameliorated the delay stemming from the decision to proceed jointly. The Crown will need to demonstrate that it took reasonable steps in an attempt to minimize the delay that resulted from proceeding jointly. Here, it should be emphasized once more that, as the Court noted in Jordan, this does not require the Crown to take every measure imaginable or to show that these measures were successful. Rather, it must show that the steps it took were reasonable ones in light of the circumstances (para. 70).
[71] Should the Crown satisfy these four criteria, the period of delay that results from proceeding jointly will be deducted as a discrete exceptional circumstance. Finally, before turning to the application of the framework to the case at bar, I note that my colleague Justice Karakatsanis takes issue with the first two criteria laid out in Tran. In her view, it would serve no useful purpose for the Crown to routinely demonstrate that the trial is in the interests of justice, given that there is a presumption in favour of joint proceedings (para. 124). She also holds that there is no need to inquire as to whether the delay stems from the joint nature of the trial, given that the question is always “whether the delay was reasonably unforeseen or reasonably unavoidable, and whether the Crown could reasonably have done anything about it” (para. 125).
[72] As my colleague rightly notes, joint trials are presumed to be in the interests of justice. Where the Crown demonstrates that the co‑accused are “charged with offences arising out of the same event or series of events”, it will be entitled to rely upon this presumption (Chow, at para. 47, quoting Crawford, at para. 30). Accordingly, the Crown’s evidentiary burden will, in this respect, be minimal in most cases. However, it is important not to lose sight of the fact that the notion of reasonable conduct permeates the Jordan framework (see, e.g., paras. 69‑70). Where proceeding jointly is not in the interests of justice, the Crown’s conduct will not be reasonable, and it will be unable to invoke discrete exceptional circumstances. Therefore, the first criterion is not redundant. Even if, in practice, the Crown can routinely rely upon this presumption, it nevertheless remains one that the defence can rebut by showing that the joint prosecution is not in the interests of justice (see, e.g., the non‑exhaustive list of factors identified in Last, at paras. 16‑18).
[73] Moreover, and with respect for the opposing view, showing that the delay is caused by proceeding jointly is a necessary part of the Crown’s demonstration. Causality is not a new criterion in the Jordan framework. Whenever discrete exceptional circumstances are alleged, the delay that the Crown wishes to have deducted must flow from the discrete event. Often, the causality between the discrete event and the delay that is produced will be self‑evident. Sometimes less so. Either way, causality must logically be established between the two in some way. Hence, when Paciocco J.A. described the second criterion in Tran, he was simply making explicit that which had always been implicit in the Jordan framework, and nothing more. I turn now to the application of the framework to the case at bar. At paras 74-84, the court considers the issue of 'discrete exceptional circumstances' in this case.
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