Jordan is here to stay: Supreme Court recalibrates—but does not rewrite—the trial-within-a-reasonable-time framework

Ten years after R. v. Jordan, 2016 SCC 27 [Jordan], the Supreme Court has used two companion cases—R v. Vrbanic, 2026 SCC 19 [Vrbanic] and R v. Jacques-Taylor, 2026 SCC 20 [Jacques-Taylor]—to clarify how the “trial within a reasonable time” framework operates in Canada.

The bottom line

Somewhat unusually, the most significant takeaway from Vrbanic and Jacques-Taylor lies in what the Court did not do: It did not rewrite the Jordan framework to disturb the presumptive ceilings of 18 and 30 months.

However, the Court’s clarifications to the framework send a clear message that all justice system participants “must be proactive in ensuring that proceedings move forward efficiently and quickly”.^[1] In practice, defence counsel and Crown alike can expect to be held to a higher standard and required to collaborate proactively to move cases through the system efficiently. Defence counsel who are seen to be passive or uncooperative now risk having delay counted against them.^[2] Likewise, Crown will be unable to rely on the “case complexity” exception to go beyond the ceilings unless they can show they’ve taken reasonable steps to proactively mitigate delay.^[3] Trial judges, as well, are encouraged to use their broad case management powers to simplify and streamline proceedings under the clarified framework.^[4]

For most accused in most cases, the resulting framework is not a watered down version of Jordan, but the same black and white analysis as always: An accused who is proactive and cooperative can expect, as usual, that “[e]ven one day of net delay over the ceiling will constitute a breach of s. 11(b)” (absent exceptional circumstances).^[5] However, the clarified framework introduces more grey for complex cases, which invite a “holistic” assessment that places less focus on the ceilings. The clarified framework also arguably invites application of the “exceptional circumstances” criteria to a wider range of cases than before by making it clear that such circumstances will not necessarily be rare or infrequent.

Background: What changed and what stayed the same

Applying the Jordan framework, delay remains presumptively unreasonable where the time between the laying of a criminal charge and the actual or anticipated end of the trial exceeds 18 months (for provincial court trials) or 30 months (for superior court trials), after any defence delay has been identified and subtracted. Above the ceilings, the burden shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating “exceptional circumstances”—either (a) discrete exceptional circumstances, or (b) particular complexity. If it cannot do so, there is a s. 11(b) breach. A stay of proceedings continues to follow automatically from the breach (at least for now). The Jordan ceilings are universal: The same ceilings apply to both corporate^[6] and individual accused, regardless of whether the charged offence is criminal, quasi-criminal or regulatory in nature.^[7]

Jordan has generated many headlines in recent years, as a “troubling”^[8] number of serious charges have been stayed for unreasonable delay—with some exceeding the ceilings by mere days. This led the Crown in Vrbanic to ask the Court to reconsider Jordan by introducing a judicial discretion to refuse a stay even where the net delay exceeds the presumptive ceiling. However, the Court refused the invitation, holding that the Jordan framework, with clarifications, was flexible enough to address the Crown’s concerns without the need for a residual discretion.

Therefore, both Vrbanic and Jacques-Taylor operate within the existing Jordan framework. These cases clarify the two broad categories of exceptional circumstances that Crown can rely on to rebut the presumption of unreasonable delay beyond the ceilings—namely:

1. by demonstrating that certain periods of delay constitute “discrete exceptional circumstances” that must be deducted from the net delay, thus rendering the delay presumptively reasonable once again (Jacques-Taylor); or
2. by demonstrating that the case is “particularly complex”, such that a delay greater than 18 or 30 months may nonetheless be reasonable (Vrbanic).

When can joint trial delay be deducted as a discrete exceptional event? (Jacques-Taylor)

The Court in Jacques-Taylor considered when the delay of a co-accused can be deducted against accused who did not cause it. The majority made two important points: First, “discrete exceptional events” can and do arise regularly, and they need not be rare or infrequent.^[9] They must only be (a) reasonably unforeseen or (b) reasonably unavoidable.^[10] Second, Jordan must achieve a balancing of individual s. 11(b) rights with the s. 11(b) rights of all justice system users, which requires it to account for the clear systemic efficiencies of joint trials. Therefore, Jordan cannot require the Crown to consider severance as a routine (or even occasional) way of protecting individual s. 11(b) rights, where it puts undue strain on the system by creating delays elsewhere.^[11]  

Adopting R v. Tran, 2023 ONCA 532, the majority set four criteria that must be met before joint-trial delay is deducted as a discrete exceptional circumstance:^[12]

1. the joint trial is in the interest 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 (i.e., that it took reasonable steps to attempt to minimize the delay resulting from proceeding jointly).

While the controversial ceilings survived mostly unscathed, Vrbanic or Jacques-Taylor may not be the last word on Jordan: While the issue was not properly before the court in either case, the Supreme Court left the door open to reconsidering in a future case whether stays of proceedings should continue to be the automatic remedy for every s. 11(b) breach.^[13]

When can complexity justify exceeding the ceilings? (Vrbanic)

In Vrbanic, the majority established a three-part test to determine when complexity can justify delay beyond the Jordan ceilings. The test requires the Crown to establish that:

1. the case is particularly complex such that delay beyond the ceiling is prima facie justifiable;^[14]
2. the Crown took reasonable steps to proactively mitigate the delay occasioned by the case’s particular complexity;^[15] and
3. the specific delay is justified in light of the degree of complexity of the case.^[16]

Part one and two of the test serve as a threshold test that the Crown must establish before the justification evaluation in part three.

First, as a threshold analysis, the application judge must determine whether the case is particularly complex such that delay beyond the ceiling is prima facie justifiable. The majority clarified that a complex case must be “inordinate” or “exceptional”, but that it need not be “rare”.^[17] Indeed, given recent developments in the law, “more cases may be capable of engaging the case complexity exception”.^[18] Application judges are instructed to consider the following, non-exhaustive hallmarks of complexity: ^[19]

• voluminous disclosure;
• large number of witnesses;
• significant requirements for expert evidence;
• charges covering a long period of time;
• large number of charges;
• large number of pre-trial applications or motions requiring separate court dates and/or judicial reasons;
• novel or complex legal issues;
• large number of significant issues in dispute; and
• joint proceedings against multiple co-accused.

Where complexity is established, the application judge goes on to consider, as a second threshold requirement, whether the Crown has taken reasonable steps to mitigate the delay occasioned by the case’s particular complexity. The focus at this stage is on the Crown’s efforts, rather than their outcome: Where “defence action or inaction has frustrated the Crown’s reasonable efforts”, the Crown may be able to establish proactive mitigation notwithstanding the failure of its efforts to actually mitigate delay.^[20] While the Crown is not held to a standard of perfection, it must act reasonably—for example, by “assign[ing] sufficient resources to the prosecution, devot[ing] adequate time to disclosure management, promptly resort[ing] to case management processes to streamline the proceedings, and, where appropriate, organiz[ing] co-accused into tailored prosecution groups”.^[21]

If the two-part threshold test is met, the application judge proceeds to consider the third and final requirement of “justification”, where they must ask whether the case’s complexity justified the delay.^[22] At this stage, the application judge considers whether the actual net delay is justified in light of the degree of complexity in the case. The inquiry at this stage is not whether delay “over the ceiling”^[23] is justified, but whether “the complexity of a case, wherever it has proceeded, justifies the amount of time it took from start to finish”.^[24] Once the threshold requirements are met, application judges are instructed to engage in a “holistic”^[25] analysis, rather than to “modulate”^[26] the degree of complexity required to justify delay under the two different ceilings. With this clarification, the majority removed strategic incentives for accused persons facing complex trials to “flock to provincial courts in the hope of securing stays under the lower Jordan ceiling”.^[27]

^[1] R v. Jacques-Taylor, 2026 SCC 20, at para 2.

^[2] R v. Jacques-Taylor, 2026 SCC 20, at para 44.

^[3] R v. Vrbanic, 2026 SCC 19 at para 53.

^[4] R v. Vrbanic, 2026 SCC 19 at para 78.

^[5] R v. Vrbanic, 2026 SCC 19 at para 98.

^[6] See R. v Elite Farm Services Ltd., 2021 BCSC 1996 at para 20.

^[7] R. v. Wigglesworth, 1987 CanLII 41 (SCC).

^[8] R v. Vrbanic, 2026 SCC 19 at para 73.

^[9] R v. Jacques-Taylor, 2026 SCC 20, at para 38.

^[10] R v. Jacques-Taylor, 2026 SCC 20, at para 38.

^[11] R v. Jacques-Taylor, 2026 SCC 20, at para 56.

^[12] R v. Tran, 2023 ONCA 532, at para 40.

^[13] See R v. Vrbanic, 2026 SCC 19 at paras 80-82.

^[14] R v. Vrbanic, 2026 SCC 19 at paras 39 - 40.

^[15] R v. Vrbanic, 2026 SCC 19 at paras 39 - 40.

^[16] R v. Vrbanic, 2026 SCC 19, at para 58.

^[17] R v. Vrbanic, 2026 SCC 19, at paras 41-42.

^[18] R v. Vrbanic, 2026 SCC 19, at para 43.

^[19] R v. Vrbanic, 2026 SCC 19, at para 45.

^[20] R v. Vrbanic, 2026 SCC 19, at para 57.

^[21] R v. Vrbanic, 2026 SCC 19, at para 54.

^[22] R v. Vrbanic, 2026 SCC 19, at para 58.

^[23] R v. Vrbanic, 2026 SCC 19, at para 63.

^[24] R v. Vrbanic, 2026 SCC 19, at para 66 [emphasis added].

^[25] R v. Vrbanic, 2026 SCC 19, at para 64.

^[26] R v. Vrbanic, 2026 SCC 19, at para 66.

^[27] R v. Vrbanic, 2026 SCC 19, at para 67.