Supreme Court sets conditions for excluding joint-trial scheduling delays under Jordan

The Supreme Court of Canada has ruled that scheduling conflicts in a joint criminal trial can justify excluding delay from the Jordan calculation, even when the accused seeking a stay was not responsible for the conflict. But prosecutors must satisfy four conditions, including showing that they could not reasonably have reduced the resulting delay.

In R. v. Jacques-Taylor, 2026 SCC 20, the court divided 6–3 on whether those requirements were met. The May 29 judgment allowed the Crown’s appeal, set aside the stay of proceedings against Elijah Jacques-Taylor and sent the matter back for trial. It did not decide his guilt.

Justice Suzanne Côté, writing for six judges, treated three weeks arising from a co-accused’s lawyer’s unavailability as a discrete exceptional circumstance. Justice Andromache Karakatsanis, joined by Justices Sheilah Martin and Mary Moreau, agreed that joint-trial scheduling difficulties could qualify for the exception, but concluded that the Crown had not taken timely steps to mitigate them here.

A scheduling conflict pushed the case past the ceiling

Jacques-Taylor and others were charged with drug- and firearm-related offences following a traffic stop in November 2021. By a July 2022 pre-trial conference, only Jacques-Taylor and one co-accused were expected to proceed to a trial estimated to last three days.

The earliest available trial dates were August 8 to 10, 2023. Jacques-Taylor’s lawyer was available, but the co-accused’s lawyer was not. Jacques-Taylor’s lawyer was unavailable in September, and the trial was scheduled for October 2 to 4, 2023, about 22 months and two weeks after the charges were laid.

The case management judge deducted one month for Jacques-Taylor’s own lawyer’s unavailability and three months for COVID-19-related delay. That left 18 months and two weeks, above the applicable 18-month Jordan ceiling. The judge declined to deduct the delay attributable to the co-accused’s lawyer and stayed the prosecution. The Ontario Court of Appeal upheld that decision.

The Supreme Court majority deducted a further three weeks, August 11 to 31, as a discrete exceptional circumstance. That brought the delay below 18 months. Jacques-Taylor had not argued that the remaining, presumptively reasonable delay was nevertheless unreasonable. The deduction reflected a specific scheduling conflict, not a grace period for cases narrowly exceeding the ceiling.

Four conditions for the joint-trial exception

The majority adopted the approach in the Ontario Court of Appeal’s Tran decision. The Crown must establish that the joint trial is in the interests of justice; that the delay resulted from proceeding jointly; that it was reasonably unforeseen or reasonably unavoidable; and that the Crown could not reasonably have reduced it. Satisfying all four permits the resulting period to be deducted as a discrete exceptional circumstance.

Côté emphasized the strong preference for trying people together when they are accused of offences arising from the same events. Joint trials can reduce repeated testimony, conserve judicial resources and limit inconsistent verdicts. Those benefits, she said, matter to the timely administration of justice across the system, not just to the particular prosecution.

That preference is not absolute. The majority said a joint prosecution may cease to serve the interests of justice when one accused repeatedly impedes the proceedings and prevents another from moving the case forward. An accused does not have to apply for severance to demonstrate that proceeding jointly is inappropriate.

Nor does a scheduling problem have to be rare to qualify as exceptional. The question is whether it was reasonably unforeseen or reasonably unavoidable, and whether the Crown could reasonably address the resulting delay. Prosecutors need not take every conceivable step or prove that their efforts succeeded, but they must demonstrate reasonable efforts in the circumstances.

Applying the test, the majority found that the charges arose from the same traffic stop and that proceeding jointly was appropriate. The August conflict resulted directly from the joint trial, and the Crown had no control over defence counsel’s schedules. Côté also concluded that the Crown’s eventual efforts to secure earlier dates were reasonable in the context of the defence’s handling of its delay application.

Late filing divided the court

The case management judge had ordered any Charter delay application to be filed within 120 days of the July 2022 hearing. Although the defence indicated that an application was coming, it did not file its notice until January 2023 and its completed application until late February. The Crown subsequently sought earlier trial dates in April or May, or July, but the lawyers’ availability again did not align.

For the majority, the unjustified failure to meet the filing deadline and communicate about it was relevant to assessing the Crown’s response. Côté said the Crown should have sought new trial dates when the January notice arrived, but considered it reasonable for prosecutors to have believed before then that the application had been abandoned. The standard was reasonable conduct, not perfection.

The majority nevertheless recognized that genuine difficulties can prevent compliance with a deadline despite diligent efforts. Counsel should promptly alert the court and seek an extension or another solution. Côté also said unreasonable defence conduct cannot, by itself, satisfy the Crown’s obligation to take reasonable steps.

Importantly, the majority did not deduct the period of late filing as defence delay. The Crown expressly declined to seek that deduction. The three weeks excluded from the calculation were instead the scheduling delay arising from the joint prosecution.

Dissent said the Crown had notice and time to act

Karakatsanis rejected the suggestion that the Crown could wait for a completed delay application before responding to an obvious risk of exceeding the ceiling. The defence had announced its intention less than three weeks after trial dates were set. In her view, the Crown’s eventual search for alternatives, close to eight months after that warning, came too late.

The dissent emphasized the application judge’s finding that the missed filing deadline had not delayed the proceedings. Missing that deadline was not a clear and unequivocal waiver of the right to trial within a reasonable time. Although accused people must cooperate and comply with court orders, Karakatsanis said the burden of justifying delay above the ceiling remains with the Crown.

The dissent also considered Tran’s separate requirements concerning the interests of justice and the connection to the joint trial unnecessary additions to Jordan’s existing exceptional-circumstances test. Even so, it accepted that scheduling multiple counsel can produce reasonably unavoidable delay and that routinely requiring separate trials would generally be unreasonable. The decisive disagreement was whether the Crown had done enough to address this delay.

The ruling leaves Jordan’s presumptive ceilings in place and does not automatically exclude time associated with a co-accused. The majority did not decide a separate question the Crown raised about how delay should be apportioned between the prosecution and defence under the Boulanger and Hanan decisions.

Read the Supreme Court of Canada’s reasons in R. v. Jacques-Taylor, 2026 SCC 20.