Ten years after Jordan, the Supreme Court course-corrects

I — The Stop

A modified automatic handgun, a prohibited magazine, and four passengers

On November 18, 2021, Ontario police officers pull over a vehicle as part of the R.I.D.E. program — a routine roadside sobriety check. As they approach the car, they spot cannabis in plain view, within reach of the driver. The search that follows reveals two loaded firearms inside the vehicle.

One of them is allegedly in the possession of Elijah Jacques-Taylor. It is an automatic handgun, illegally modified, fitted with a prohibited high-capacity magazine capable of holding thirty rounds.

That same day, police charge all four occupants of the vehicle with offences relating to drugs and firearms. Under the eighteen-month ceiling set by R. v. Jordan in 2016, the delay would be presumed unreasonable as of May 18, 2023.

Along the way, two of the four accused drop out of the file. By the time the pre-trial conference is held in July 2022, only Jacques-Taylor and one remaining co-accused are still going to trial. Both elect to be tried by a provincial court judge. The Crown decides not to sever the counts: this will be a joint trial. Nobody at the time suspects that this routine decision — the norm in nearly every concerted prosecution — will end up before the country's highest court.

II — The Calendar That Slipped

Two weeks past the eighteen-month ceiling

On July 6, 2022, at a pre-trial conference, the coordinator offers the earliest available dates: August 8 to 10, 2023. Jacques-Taylor's lawyer is available. The co-accused's lawyer, however, is not available for any of August.

The coordinator then offers September 2023. This time, it is Jacques-Taylor's lawyer who is unavailable. The parties ultimately settle on dates of October 2 to 4, 2023.

Gross calculation: 22 months and 2 weeks from the laying of charges. Well past the Jordan ceiling of eighteen months — but the final net delay will only be calculated after the deductions provided for by Jordan.

That same day, the case management judge sets a clear deadline: any party wishing to file a stay-of-proceedings application under s. 11(b) must do so within 120 days. Two weeks later, Jacques-Taylor's lawyer indicates that such an application will be filed at the September 26, 2022, hearing.

It is not filed on September 26. Nor by November 3, the deadline set by the judge. Nor in December. The notice of application reaches the court on January 24, 2023 — nearly three months after the deadline. The full application itself will not be filed until February 27.

In response, the Crown proposes earlier trial dates — April, May or July 2023. But scheduling conflicts between defence counsel make these new dates unworkable.

On June 8, 2023, Justice Prutschi of the Ontario Court of Justice grants the stay of proceedings. After deducting four months (one month for defence counsel's unavailability in September, three months for the pandemic), he concludes that the net delay is 18 months and 2 weeks. The Ontario Court of Appeal confirms the ruling in 2024. The modified automatic handgun, the thirty-round magazine: none of it will ever be tried on the merits.

The Crown takes the matter to the Supreme Court.

III — What the Supreme Court Ruled

Delays caused by a co-accused can now be deducted

To understand what the Court has ruled, a brief recap of how Jordan works is in order.

The 2016 Jordan ruling set two presumptive ceilings: eighteen months for trials in provincial court, thirty months for trials in superior court or in provincial court following a preliminary inquiry. Above those thresholds, the delay is presumed unreasonable, and the default remedy is a stay of proceedings — unless the Crown succeeds in rebutting the presumption.

There are essentially two ways to rebut: demonstrate that the case is particularly complex, or demonstrate that part of the delay falls under discrete exceptional circumstances. The COVID-19 pandemic was long the textbook example. The question before the Court in Jacques-Taylor: can the unavailability of a co-accused's lawyer also constitute such an exceptional circumstance?

The majority, writing through Justice Côté, answers yes. It adopts the four-criteria test developed by the Ontario Court of Appeal in 2023 in R. v. Tran:

If the Crown satisfies the four criteria, the delay caused by the joint trial is deducted. In Jacques-Taylor's case: the three weeks of August 2023 lost to the co-accused's lawyer's unavailability are subtracted. The net delay falls below the eighteen-month ceiling. The stay of proceedings is overturned. The case goes back to trial.

But the ruling does not stop there. The majority takes the opportunity to clarify two misconceptions that have settled into the case law over the past ten years.

First clarification: rarity is not required. Several judges had interpreted the word exceptional as requiring a rare or unusual event. The majority says no.

What makes a circumstance exceptional is not its rarity, but the fact that it lies outside the prosecution's control — reasonably unforeseen or reasonably unavoidable, with no reasonable remedy available. Medical emergencies, trials running longer than expected, scheduling conflicts in joint trials: none of these is rare, and all can now qualify.

Second clarification: separate trials are not the solution. Several judges, faced with the difficulty of coordinating defence counsel's schedules in a joint trial, had suggested that the Crown should simply have moved to sever the counts. The majority closes off that route. Joint trials, it writes, are the rule rather than the exception. They reduce costs, prevent inconsistent verdicts, and spare witnesses from having to testify twice. Severing them to avoid a delay for one accused mechanically creates delays elsewhere — for other accused. And they too are entitled to a trial within a reasonable time.

IV — A Stern Reminder to the Defence

"The Crown cannot be expected to chase after defence counsel"

One of the most unexpected passages in the ruling is not the modification of the Tran test. It is the severity with which Justice Côté treats the conduct of Jacques-Taylor's counsel.

The case management judge had set a clear deadline: 120 days to file any application under s. 11(b). Defence counsel did not respect it. She missed it by nearly three months, without notifying either the Crown or the court. During oral argument before the Supreme Court, asked about the reasons for that delay, she admitted that the application had been filed at a moment "convenient to them."

That admission clearly did not sit well with the majority.

Justice Côté specifies that case management powers are a powerful tool that must bind the parties. Decisions of the case management judge are not invitations. When a lawyer cannot meet a deadline, they have an obligation to notify the court quickly so a solution can be found. Otherwise, their inaction can be attributed to the defence as deductible delay — or, in some cases, constitute a discrete exceptional circumstance in itself.

For the record, the Crown did not ask the Court to deduct that period as defence delay. Justice Côté notes the omission in passing. She therefore will not deduct the period, but she makes it abundantly clear that she could have.

For the Quebec defence bar, the message is unmistakable: strategic inaction now comes at a price.

V — The Karakatsanis Dissent

Three justices defending the original spirit of Jordan

Justice Karakatsanis, joined by Justices Martin and Moreau, signs a 47-paragraph dissent that deserves to be read in full by anyone interested in Canadian criminal law.

She does not dispute the principle that a co-accused's counsel's unavailability can constitute an exceptional circumstance. On that specific point, the minority agrees with the majority. The disagreement lies elsewhere: on the Crown's obligation to take reasonable steps to mitigate the delay once the circumstance has arisen.

Karakatsanis acknowledges from the outset the social cost of a stay of proceedings. The accused is not cleared. Victims are denied justice. Public confidence erodes. But, she immediately adds, the public also does not tolerate institutional violations of Charter rights. And Jordan specifically set out to place the burden on the Crown in order to break with a culture of complacency.

In Jacques-Taylor's file, the dissent writes, the Crown did nothing for eight months. When the trial dates were set in July 2022, they already exceeded the Jordan ceiling by more than four months. The Crown did not react. When Jacques-Taylor's counsel signalled that she would be filing an s. 11(b) application — less than three weeks later — the Crown still did nothing. When the formal notice of application arrived in January 2023, again nothing. It was only in March 2023, two weeks after the full application was filed, that the Crown finally proposed other trial dates.

Too late, Karakatsanis concludes. The Crown cannot use the defence's inaction to excuse its own passivity. The fact that counsel missed the 120-day deadline could have grounded a deduction as defence delay — but the motions judge concluded that the lateness had caused no delay in the proceedings, and the Crown did not even ask for the deduction.

The dissent also criticizes two of the four Tran criteria. Requiring them systematically, Karakatsanis writes, is pointless. Joint trials are already presumed to be in the interests of justice. And the question of whether the delay flows directly from the joint nature of the trial is artificial: what matters is only whether the delay was reasonably unavoidable and whether the Crown could have remedied it.

It is, in sum, a return to fundamentals: Jordan placed the burden on the Crown. The majority, without saying so openly, shifts part of that burden onto the defence. For the three dissenting justices, that betrays the spirit of the 2016 framework.

VI — What This Changes in Quebec

The DPCP was an intervener. Here's why that matters.

When a case before the Supreme Court touches the practices of the entire Canadian criminal justice system, provincial directors of public prosecutions intervene to advance their perspectives. In Jacques-Taylor, the Quebec Director of Criminal and Penal Prosecutions was represented by Daphné Godin-Garito.

The intervention is not insignificant. Jordan has profoundly marked Quebec over the past ten years. The province has seen more than its share of stays of proceedings in cases of varying gravity — including some that caused public outcry. The culture of complacency that Jordan denounced existed in Montreal, in Quebec City and in regional judicial districts as well. The DPCP's efforts to respect the new ceilings have mobilized considerable resources.

Three practical consequences for Quebec.

First consequence. Any stay-of-proceedings application currently pending in Quebec in the context of a joint trial must now be re-evaluated in light of the Tran test adopted by the Supreme Court. Scheduling conflicts between defence counsel are no longer an inevitable path to a stay of proceedings once the ceiling is crossed.

Second consequence. Case management decisions made by Quebec judges — often perceived as soft in practice — gain in authority. The Supreme Court confirms that they bind the parties, and that failing to respect them can justify deductions from the delay.

Third consequence. The notion of discrete exceptional circumstances expands considerably. The COVID-19 pandemic will sooner or later cease to be invoked. But other events — scheduling conflicts, a lawyer's medical leave, complications obtaining transcripts, administrative problems — can now qualify, without having to demonstrate that they are rare or unusual.

For Quebec litigants, the message is mixed. Section 11(b) protection remains constitutional, untouchable. But it is now read within a framework where defence obligations are more demanding, where joint trials are strongly favoured, and where the "exceptional" character of a circumstance is assessed more generously in the Crown's favour.