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Charter - Section 11(b) Trial Delay - Joint Prosecutions. 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.
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.
. R. v. Jacques-Taylor [joint prosecutions]
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) issue of "how the Jordan framework is to be applied to cases involving co‑accused in a joint prosecution":[19] Firstly, it asks how the Jordan framework is to be applied to cases involving co‑accused in a joint prosecution. More precisely, it asks that we resolve a question that the Court intentionally left unanswered in R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5: whether delays caused by one accused can be deducted from the net delay of his or her co‑accused as a discrete exceptional circumstance. The Crown contends that they can be. By contrast, the respondent argues that an individualized approach must be favoured and that the defence is not an amorphous, singular entity. Consequently, where an accused is not directly or indirectly responsible for the delay, it should not be deducted.
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C. The Role of Joint Trials in Ensuring an Efficient Criminal Justice System
[47] Joint trials, it cannot be overstated, play a crucial role in attaining the objective of efficient criminal justice. The strong preference for joint trials in our criminal justice system therefore closely aligns with Jordan’s purpose.
[48] It has long been recognized that where two or more accused are alleged to have committed a crime together, they should be jointly charged and jointly tried (Phillips v. The Queen, 1983 CanLII 161 (SCC), [1983] 2 S.C.R. 161, at p. 169; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 10; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 50). The presumption in favour of joint trials is strong. So strong, in fact, that severance will not be ordered unless proceeding jointly will work an injustice to one of the accused (R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at para. 31; Chow, at para. 47). Accordingly, joint trials are the rule, while severance is the exception (Sciascia, at para. 33; Chow, at paras. 10 and 47).
[49] This preference for joint trials is entirely unsurprising. Proceeding jointly promotes the proper and efficient administration of justice, which is a compelling policy consideration (Sciascia, at para. 33). Joint trials promote the proper and efficient administration of justice in several ways.
[50] Firstly, joint trials ensure that already scarce judicial resources are used as efficiently as possible. Proceeding jointly means that fewer judges and fewer Crown prosecutors are needed to try the charges. Likewise, fewer juries need be empanelled, and the disruption occasioned to witnesses is lessened. Hence, proceeding jointly limits costs not only to the criminal justice system, but also to society more broadly. That is not all, however. In addition, procedural matters and similar or identical evidentiary issues can be streamlined and dealt with conclusively in a single trial, rather than repeatedly and inefficiently across multiple trials. This has the added advantage of diminishing the possibility of contradictory verdicts. Moreover, the more efficient distribution of resources throughout the system in turn enables the judiciary to serve a greater number of worthy litigants and to do so more quickly. In this respect, one must not lose sight of the fact that the interests of justice encompass not only the rights of the accused to a fair trial, but also “society’s interest in seeing that justice is done in a reasonably efficient and cost‑effective manner” (R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16; see also R. v. Cowan, 2021 SCC 45, [2021] 3 S.C.R. 323, at para. 63).
[51] Secondly, joint trials better serve the court’s truth‑seeking function. When several persons are accused of an offence, particularly where it is alleged that they conspired or engaged in a joint criminal enterprise, “it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion” (Crawford, at para. 30, citing D. W. Elliott, “Cut Throat Tactics: the freedom of an accused to prejudice a co‑accused”, [1991] Crim. L. Rev. 5, at p. 17; see also R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at paras. 155‑56). The same can be said in respect of witness and complainant testimony. Memories are fallible. Over time, details become blurry, are forgotten, or are even misremembered. Requiring witnesses to testify repeatedly increases the risk that testimony will be less consistent with the truth, even in the case of a witness who endeavours to testify as truthfully as possible.
[52] Thirdly, joint trials safeguard public confidence in the judicial process. Joint trials reduce delays, which makes a stay of proceedings less likely. Ensuring that justice is done quickly and in accordance with the Charter can only increase confidence in the justice system. Furthermore, by reducing the number of proceedings, joint trials help to alleviate the various burdens that are placed on all of the actors involved in prosecutions, thereby bolstering public confidence in the criminal justice system. The legal costs associated with being forced to participate in multiple criminal proceedings are often ruinous for the ordinary person. For witnesses and complainants, being continually forced to relive highly traumatic events, while also being subjected to the rigours of cross‑examination, can be a shattering experience. Trying multiple accused jointly limits these side effects.
[53] To summarize, joint trials ensure systemic efficiency. They reduce trial delays across the board, reduce costs, enhance the truth‑seeking function of criminal trials, and limit the burdens that are borne by complainants, witnesses, and, importantly, accused persons. Therefore, joint trials play an important role in safeguarding public confidence in the administration of justice. Of course, I hasten to note that proceeding jointly is not always appropriate (R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 10). This was noted by the Court in Jordan, where it highlighted that severance may be desirable under limited circumstances (para. 129). Notwithstanding, in the vast majority of cases, proceeding jointly will be in the interests of justice and, accordingly, severance will not be appropriate.
[54] It is an unfortunate but unavoidable fact of the trial process that jointly prosecuting multiple co‑accused may lead to proceedings that are lengthier than would normally be the case for a person who is tried individually. However, perfect solutions do not exist and, as with anything, there are necessary trade‑offs. Even though a given prosecution may be prolonged as a result of the joint trial, major systemic efficiencies are nonetheless created elsewhere. These gains in efficiency ensure better protection of the s. 11(b) right throughout the criminal justice system.
[55] Section 11(b) also encompasses a broader societal interest in speedy trials. An individual’s trial does not take place in a vacuum. In some jurisdictions, hundreds of people may be tried weekly. Severance cannot be ordered simply to gain a few days or weeks here or there, all the while creating a series of knock‑on effects that cause worse delays elsewhere. Courts cannot simply order severance in the name of protecting one accused’s s. 11(b) right without accounting for the delays that such an order would occasion elsewhere. At the very least, severance entails assigning a new judge and new Crown counsel, and attempting to allocate a new set of trial dates that, evidently, cannot be used for other trials. Someone else will have to bear these delays: other accused persons. But they, too, have the right to be tried within a reasonable time.
[56] Endorsing an approach that, in effect, raises the bar for joint trials would run counter to Jordan’s spirit and fail to strike the appropriate balance between the competing rights of accused persons across the criminal justice system. Building a more efficient criminal justice system ensures better outcomes for everyone. We must therefore avoid solutions that merely contribute to systemic delays. Requiring the Crown to consider severance as a routine (or even occasional) means of protecting an accused’s right to a trial within a reasonable time would put undue strain on the system by simply creating delays elsewhere. This cannot be the solution. Rather, the Jordan framework must be able to account for the clear advantages that are conferred by joint trials and the need to balance the s. 11(b) right of multiple accused persons throughout the criminal justice system (Crawford, at paras. 33‑34; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877). . R. v. Tran
In R. v. Tran (Ont CA, 2023) the Court of Appeal held that delay stemming from a joint trial is a 'exceptional circumstances', excusing Charter s.11(b) trial delay:[33] I would deny Mr. Tran’s appeal of the trial judge’s s. 11(b) ruling, as well. I accept that the net delay exceeded the 18-month presumptive ceiling for trials in the Ontario Court of Justice by nine days, but this was a joint trial. As I will explain, if the Crown establishes that a joint trial is being undertaken in the interests of justice, and delay has arisen because of that joint trial that the Crown could not reasonably have prevented or ameliorated, the Crown will have established an “exceptional circumstance” justifying a prima facie unreasonable delay, within the meaning of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In my view, the Crown established these things, thereby justifying the prima facie unreasonable delay. I would therefore dismiss this ground of appeal. I will begin by reviewing the material facts.
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[39] To be sure, where a trial is being conducted jointly, delay caused by a co‑accused is not “defence delay” by the accused that counts against the accused. Therefore, the delay caused by Mr. Nguyen and Ms. Vu’s change of counsel continues to form part of the period of prima facie delay in Mr. Tran’s trial. As Gillese J.A., recognized for the majority in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 128, 136, an individualized approach must be taken in calculating delay. The trial judge fully appreciated that. The delay in Mr. Tran’s trial was therefore in prima facie breach of s. 11(b).
[40] However, the majority in Gopie also accepted that delay caused to the accused by the conduct of a joint trial can qualify as an “exceptional circumstance” that may permit delay in excess of the prima facie unreasonable delay period: Gopie, at paras. 142, 170. For delay caused by a joint trial to qualify as an exceptional circumstance it must first be in the interests of justice to conduct a joint trial: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, leave to appeal denied, [2017] S.C.C.A. No. 37322. To qualify as an exceptional circumstance in any context, the delay must arise from “circumstances [that] lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in the original): Jordan, at para. 69. Therefore, to rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay. . R. v. Singh [joint trial]
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here brought against a Charter s.11(b) ['trial delay'] large-scale drug offence stay.
The court considers the role of joint trials in a Charter s.11(b) context:[1] Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. Courts must reconcile this fundamental right with two of the administration of justice’s most compelling imperatives: trying co-accused jointly and conducting large project prosecutions. The flexible framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, achieves this very goal. It recognizes that joint trials are ordinarily in the interests of justice and that complexity is sometimes unavoidable in project prosecutions, while holding the Crown to its duty to prevent and mitigate delay. Applying Jordan mechanically without meaningfully accounting for these interests risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions. Properly applied, Jordan prevents such outcomes while still safeguarding timely justice for the accused.
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[4] I would allow the Crown’s appeals and set aside the stays because the joint trial and the project’s scale justified the additional time taken. In my respectful view, the application judge did not meaningfully account for these vital interests. His preferred alternative to a joint trial, severance, was not a panacea. Rather, it would have undermined the very interests joint trials safeguard – advancing the search for truth, strengthening public confidence in the courts, and combatting systemic delay. By focusing narrowly on the relative simplicity of the individual charges, he overlooked the structural complexity of the project as a whole. The complexity of the case caused everything to take longer – even for the respondents – and easily justifies the remaining modest delay.
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C. ANALYSIS
[12] The Crown asks this court to set aside the stays of proceedings and remit the matters for trial, arguing that the application judge erred in his assessment of exceptional circumstances. It submits, first, that the application judge should have deducted the 107 days of joint-trial scheduling delay as a discrete exceptional circumstance. Second, it contends that the application judge failed to recognize that the complexity of the case justified the remaining delay in excess of the Jordan ceiling.
[13] I would allow the appeal. I agree with the Crown on both issues. Although findings regarding exceptional circumstances generally attract deference, a correctness standard applies here because the application judge misapplied the governing legal principles: R. v. Zahor, 2022 ONCA 449, at para. 79; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 28, leave to appeal refused, [2020] S.C.C.A. No. 53.
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(1) The Joint Trial Delay Should Be Deducted
[14] On the first issue, I accept the Crown’s position that the application judge should have treated the 107 days arising from joint-trial scheduling difficulties as a discrete exceptional circumstance and deducted them accordingly. I begin by reviewing the applicable legal principles before turning to their application on the record.
(a) Jordan Accommodates Joint Trials
[15] Courts have consistently emphasized that joint trials are strongly preferred over separate trials because they promote the proper administration of justice. Trying co-accused together – particularly in conspiracy cases or where the charges arise from a common series of events – advances the truth-seeking function in a way that separate trials may undermine. Joint trials also safeguard public confidence by reducing the burdens multiple proceedings impose on witnesses, jurors, and the community, and by avoiding the risk of inconsistent verdicts that may erode trust in the justice system. In addition, they achieve significant systemic efficiencies by preventing duplicative proceedings that would increase costs, strain judicial resources, and exacerbate delay. Accordingly, joint trials are the presumptive rule and severance the exception: R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 30-32; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at paras. 47-48; R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-18; R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485 (C.A.), at para. 59; R. v. Rai, 2019 BCCA 377, 381 C.C.C. (3d) 1, at para. 154.
[16] Jordan accommodates these compelling policy considerations. The Supreme Court has recognized that joint trials may require additional time and may, in appropriate cases, justify delay in excess of the ceiling. Delay resulting from a joint trial that serves the interests of justice should, therefore, be deducted as a discrete exceptional circumstance where it was unforeseen or reasonably unavoidable and where the Crown acted reasonably to mitigate it: Jordan, at para. 77; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6; R. v. Tran, 2023 ONCA 532, 429 C.C.C. (3d) 55, at para. 40.
[17] At the same time, Jordan reconciles this strong policy preference with an accused’s right to be tried within a reasonable time. The “interests of justice” analysis accommodates both considerations, and the Crown remains obliged to take reasonable steps to move the case forward and to mitigate joint-trial delay. In some circumstances, this may require severance – particularly where a joint trial unduly complicates the proceeding, causes substantial delay, or effectively holds an accused who wishes to proceed promptly hostage to the delays of co-accused: Jordan, at paras. 77, 79; R. v. Manasseri, 2016 ONCA 703, 429 C.C.C. (3d) 55, at paras. 323, 367-75, leave to appeal refused, [2016] S.C.C.A. No. 513; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 138-42, 171.
[18] However, the Crown is not required to forgo the systemic benefits of joint trials by severing proceedings as a matter of routine whenever a case approaches the ceiling. Severance is not invariably a solution, particularly where its benefit to the accused’s interest in a timely trial is marginal. Overuse of severance risks fragmenting complex project cases and other multi-accused proceedings into numerous separate trials, thereby compounding demands on already strained courts. This would undermine the truth-seeking function, erode public confidence, frustrate Jordan’s objective of systemic reform, and perpetuate the very systemic delay that Jordan sought to address: Rai, at paras. 153-54.
[19] To avoid this systemic spiral, courts must give meaningful effect to the strong policy favouring joint trials. That policy will frequently justify modest scheduling delays – an inherent feature of joint trials that Jordan expressly contemplates: Tran, at paras. 43-44; Gopie, at paras. 166, 169-70, 174.
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