We often hear that Canadian courts are severely busy and backlogged, which has only been further amplified by the COVID-19 pandemic. Some clients have waited many weeks or even months to have their matters resolved. This can cause feelings of stress and anxiety, as some clients are under certain conditions or restrictions that can affect their job, their mobility, their families, amongst other things, while waiting for their trial or hearing. But how much time is considered “too much time”? According to section 11(b) of the Charter, any person charged with an offence has the right to be tried within a reasonable time[1].
Many judges, jurists and scholars have tried to define what is a “reasonable time”. In the leading decision of R v Jordan, 2016 SCC 27, the Supreme court of Canada has set out the required framework for applying section 11(b) of the Charter. A delay is generally considered unreasonable when it exceeds the presumptive ceiling of 18 months for cases tried in provincial court or 30 months for cases tried in superior court[2]. The timeframe is calculated from the date the charge has been laid to the actual or anticipated end of trial. This is what the Supreme court calls the “gross delay”[1]. It is to be noted that any delay that is attributed to the defense, must be subtracted from the gross delay. What is considered defence delay? Defence delays are any periods of time that have been waived by the defence or when the defence has caused the delay[1]. For example, this could include when the defence requests an adjournment for a change of counsel, when defence counsel is unavailable at a certain date for a hearing/trial, etc. After these time periods are subtracted, this is then called the “net delay”[2] The Crown can only justify a delay that goes past the ceiling if there are exceptional circumstances. These fall under two categories: discrete exceptional circumstances and particularly complex cases[3].
Even after a decade, this framework has still been applied by the courts. In two recent cases from the Supreme court, R v Jacques-Taylor and R v Vrbanic, the court has shed some light on the two categories of exceptional circumstances that the Crown must satisfy to justify the delay. In R v Jacques-Taylor, 2026 SCC 20, the court focused on the category of discrete exceptional circumstances. In this case, two accused were scheduled for the same trial. The presumptive unreasonable delay would have been May 2023; only dates in August were available for trial. One accused’s counsel was not available in August and the other in September. An important question before the court was whether a delay caused by a co-accused in a joint trial can be a discrete exceptional circumstance. The Court concluded, by applying the four factors set out in Tran, that the scheduling conflict in a joint trial can be a discrete exceptional circumstance. In short, the joint trial was in the interests of justice, the delay resulted from proceeding jointly, the delay was unavoidable and the Crown could not have reasonably prevented it[1].
After the calculation, the delay then fell below the Jordan ceiling. As such, a new trial was ordered. In R v Vrbanic, 2026 SCC 19, the court focused on the particularly complex cases category. This case involved 18 accused in a large drug trafficking investigation[2]. The investigation involved more than 10,000 audio files, 1,000 surveillance reports and 2,200 surveillance photos and videos. The particularly complex cases category must proceed in two stages:
1)The threshold stage: The Crown must prove that the case is particularly complex in light of the evidence and the Crown has taken steps to reduce the delay[3]
2)The justification stage: The Crown must prove the overall complexity of the case justifies the amount of net delay[4].
The court concluded that the respondents’ prosecution was particularly complex as there were multiple accused, many pre-trial motions and extensive disclosure, the defence was also being uncooperative at times[5]. The Crown had taken all necessary steps in order to reasonably reduce delays such as case management and dividing the 18 accused into 10 groups. As such, the accused’s right was not violated even though the trial did exceed the Jordan delay by four days; in essence it was justified due to the exceptional circumstances[6]. In short, as per Justice Côté, “justice delayed is justice denied”[7]. At J Donovan Law Group, our team is experienced in criminal matters in courts all over the province. If you believe your rights have not been respected and justice has been denied, please contact our firm for legal advice.
