Supreme Court clarifies complex-case exception to Jordan trial-delay limits

The Supreme Court of Canada has clarified when a particularly complex prosecution can proceed beyond the Jordan trial-delay limits, explaining its unanimous decision to lift a stay in an Ontario drug case without creating a grace period for cases that narrowly exceed the ceiling.

In R. v. Vrbanic, 2026 SCC 19, Chief Justice Wagner set out a two-stage analysis requiring the Crown to establish both exceptional complexity and reasonable efforts to manage it, then justify the actual net delay. Wagner wrote for an eight-judge majority. Justice Rowe agreed with the result and the complexity framework, but would also have given judges a broader discretion to find delay reasonable.

The written reasons were released May 29, 2026, following an oral judgment on December 4, 2025. At that hearing, the court allowed the Crown’s appeal, set aside the stay affecting Robert Vrbanic and Sarah Josipovic and returned the matter for trial.

A scheduling mistake in a large prosecution

The case arose from a drug-trafficking investigation that led to charges against 18 people. The investigation generated about 68 gigabytes of electronic disclosure, including more than 10,000 audio intercepts. The Crown sought case management and divided the charges into 10 overlapping prosecution groups.

Vrbanic belonged to two groups, while Josipovic belonged to one. Some accused intended to participate in a joint pre-trial Garofoli application. The Crown scheduled those cases beyond the 18-month Jordan ceiling for provincial court trials and gave earlier dates to accused who did not intend to participate.

The Crown mistakenly treated the charges at issue against Vrbanic and Josipovic as dependent on that application. Their counsel did not correct the misunderstanding or object to the later dates, instead saying the earliest dates offered had been accepted. The application judge stayed those charges, and a majority of the Ontario Court of Appeal upheld that decision.

The Supreme Court identified errors in both the assessment of the Crown’s conduct and the delay calculation. The correct period from the charge to the anticipated end of trial was 21 months and four days. After a three-month deduction for pandemic-related exceptional circumstances, the net delay was 18 months and four days.

Complexity must justify the whole delay

Jordan generally makes delay presumptively unreasonable after 18 months in provincial court, or 30 months in superior court and provincial court cases following a preliminary inquiry, once defence delay is deducted. The Crown must then establish exceptional circumstances. Ordinary institutional delay cannot justify exceeding those limits.

The clarified complexity test begins with two requirements: the Crown must show that the case is particularly complex and that it took reasonable proactive steps to reduce the resulting delay. Large volumes of disclosure, numerous accused or pre-trial applications, expert evidence and difficult legal issues may support complexity, but none is an automatic exemption. Their connection to the time needed to prepare or try the case must be demonstrated.

Courts must examine the prosecution as a whole. A case can demand extensive work at an early stage and become simpler by trial without losing its character as a particularly complex case. In a large project prosecution, related proceedings and the work required to organize them can matter even if an individual accused is not involved in every application.

The Crown must also have developed and followed a concrete plan to minimize delay; reactive steps alone are insufficient. Its conduct is judged for reasonableness, not perfection. Where a plan fails, the judge must ask why, including whether defence action or inaction frustrated reasonable efforts to move the case forward.

Only after both threshold requirements are met does the court ask whether the complexity justifies the total net delay. The question is not simply whether the Crown can explain the few days or months beyond the ceiling. A complex case may justify some additional time without justifying the entire delay that actually occurred.

Wagner emphasized that reasonable prosecution efforts are necessary but not sufficient. The constitutional right is to a trial within a reasonable time, not merely to the Crown’s best efforts. Underfunded courts and prosecution offices cannot transfer the burden of institutional delay to accused people.

No four-day grace period

Applied to this prosecution, the volume of disclosure, connected proceedings and scheduling demands established particular complexity. The Crown’s early case-management efforts and tailored prosecution groups were reasonable ways to reduce delay, the court found.

Although the scheduling plan failed for these two accused, Wagner said their counsel had not met the standard of reasonable collaboration by remaining silent when the misunderstanding could have been corrected. That conduct was relevant to whether the Crown’s efforts remained reasonable, rather than being treated as a waiver of the delay limit. Time taken by legitimate defence actions is not deducted as defence delay. The court concluded that the significant complexity justified the net delay of 18 months and four days.

The short overrun was not, by itself, a reason to refuse a stay. Wagner stressed that even a single day beyond the ceiling must be justified by exceptional circumstances. The seriousness of a charge or an absence of prejudice to an accused cannot independently excuse excessive delay under Jordan.

Rowe wanted broader discretion

The eight-judge majority rejected the Crown’s proposed residual discretion to decline to find a Charter breach after unjustified delay beyond the ceiling. Wagner said a final balancing of societal interests against an accused’s right would undermine Jordan’s predictable limits and encourage litigation over excuses for delay rather than its prevention.

Rowe took a different view. He argued that developments in evidence law and criminal procedure had made even routine cases longer and that the existing framework was producing too many stays of serious charges. He also cautioned that defence lawyers’ duty to advocate for their clients can be in tension with expectations that they help bring prosecutions to trial.

His proposed discretion would consider the seriousness of the charges, how predictable and measurable the delay was when important decisions were made, and how far the case exceeded the ceiling. Those considerations would still have to be balanced against the accused’s primary interest in a timely trial, with no single factor controlling the result. That proposal did not command a majority.

Wagner acknowledged that the rule requiring a stay once an unreasonable-delay breach is established might warrant reconsideration in a future case. But the issue had not been fully argued, and the existing complexity exception resolved this appeal. The court changed neither the Jordan ceilings nor the mandatory-stay remedy for an established breach.

Source: R. v. Vrbanic, 2026 SCC 19.