The Ceiling Holds, But the Exceptions Grow: Vrbanic and Jacques-Taylor
On May 29, 2026, the Supreme Court released two companion judgments on the right to be tried within a reasonable time: R. v. Vrbanic, 2026 SCC 19, and R. v. Jacques-Taylor, 2026 SCC 20. Read together, they are a study in how the Court is choosing to manage the pressure ten years after its landmark and controversial decision in R. v. Jordan, 2016 SCC 27. The Court declined to touch its flagship test for measuring unreasonable delay—the presumptive ceiling—but has reworked the test for deducting delay from that ceiling to give the prosecution more breathing room.
The Court expressly rejected the Crown’s request to grant judges a discretion not to stay cases that are close to the ceiling. In this sense, these cases are reassuring to the defence: "If the Crown cannot justify even four days of net delay over the ceiling on the basis of exceptional circumstances then the accused's s. 11(b) right has been violated." There is no such thing as a de minimis Charter breach.
But despite this strong language, in both cases the Crown's appeal was allowed and the stay set aside. Both accused will now stand trial. For practitioners, that is the tension to carry into the next application: the Court reaffirmed the ceilings while widening the routes around them.
A Jordan refresher
Jordan replaced the open-ended Morin balancing test with presumptive ceilings: 18 months from charge to the actual or anticipated end of trial for matters tried in the provincial court, and 30 months for matters in the superior court (or tried after a preliminary inquiry).
The calculation is mechanical before it is evaluative. You take the total delay from the charge to the end of trial, then subtract delay attributable to the defence — periods waived or periods of delay caused solely by defence conduct. What remains is the net delay.
If net delay falls below the ceiling, it is presumptively reasonable, and the accused bears a heavy burden to show otherwise. If net delay exceeds the ceiling, it is presumptively unreasonable, and the burden shifts to the Crown to justify it by establishing exceptional circumstances — circumstances outside the Crown's control that were either reasonably unforeseen or reasonably unavoidable, and whose resulting delay the Crown could not reasonably have remedied. Jordan described two categories: discrete exceptional events (the subject of Jacques-Taylor) and particularly complex cases (the subject of Vrbanic).
And the remedy, where a breach is made out, is a stay of proceedings — the minimum remedy since R. v. Rahey, [1987] 1 S.C.R. 588. (Hold that thought.)
Vrbanic: the case-complexity exception gets a two-stage structure
Vrbanic arose from a sprawling project prosecution — 18 accused, voluminous disclosure, multiple judicial authorizations, charges split by the Crown into ten prosecution groups. The Crown wrongly assumed that two co-accused in group 5 intended to wait for a group Garofoli application before their trial, and scheduled them past the ceiling. Their lawyers did not correct the assumption. The application judge stayed the charges on a net delay he found to be over the ceiling. A majority in the Court of Appeal for Ontario upheld the stay.
The Supreme Court allowed the appeal and, in doing so, restated the case-complexity exception as a two-stage analysis:
The threshold stage. The Crown must prove two things: (a) that the case is particularly complex — not merely above average — such that delay beyond the ceiling is prima facie justifiable; and (b) that the Crown took reasonable steps to proactively mitigate the delay that the complexity occasioned. Hallmarks such as voluminous disclosure, a large number of charges or pre-trial applications, and joint proceedings against multiple accused can establish complexity, but only where they actually increase the time required to reach trial. Complexity is never presumed.
The justification stage. If the threshold is met, the court asks whether the overall complexity reasonably justifies the amount of net delay. Complexity is a qualitative judgment; it does not deduct a fixed block of time. It either justifies the time the case took, or it does not.
The point that should command defence attention is buried in the second element of the threshold stage. The Crown's scheduling mistake here did not sink its claim to have acted reasonably — because the breakdown was, in the Court's words, "at least partially attributable to defence counsel's failure to cooperate reasonably with Crown efforts to mitigate delay" (para. 97). Other defence counsel in the same project had spoken up, unprompted, to confirm their clients were not waiting on the Garofoli application, and got dates within the ceiling. The respondents' counsel stayed silent. Silence, on these facts, helped make the Crown's conduct reasonable. The threshold was met, the complexity justified the 18 months and four days of net delay, and there was no breach.
The residual-discretion fight. The Attorneys General urged the Court to graft a residual discretion onto Jordan — a power to decline to find a breach even where net delay exceeds the ceiling and is unjustified. The majority refused. Such a discretion would resurrect the Morin balancing Jordan was meant to bury, and is in any event unnecessary given trial judges' case-management powers.
But the refusal was not unanimous in reasoning. Rowe J., concurring in the result, would have done exactly what the Crown asked, modifying Jordan to recognize a residual discretion structured around three considerations: the seriousness of the charges, the predictability of the delay when key scheduling decisions were made, and the extent of the delay over the ceiling. Eight judges said no. One said yes, and wrote the roadmap. That concurrence, not the disposition, is the document to read twice.
The Rahey signal. The majority also went out of its way to muse that "the time is near at hand when Rahey should be revisited" (para. 81) — questioning whether the stay-as-minimum-remedy rule has been tested against four decades of change, and citing Auer v. Auer, 2024 SCC 36, the Court's framework for reconsidering its own precedents. While the Court declined to revisit the remedy here, this is a clear invitation to the Crown. Perhaps responding to public pressure and legislative developments, the Court is signalling that it is ready to reconsider the stay as minimum remedy for unreasonable delay.
Jacques-Taylor: discrete exceptional circumstances and the co-accused problem
Jacques-Taylor came out of a single traffic stop that produced drug and firearm charges against an accused and a co-accused, tried jointly in the provincial court. The earliest trial dates put the matter past the ceiling, largely because the co-accused's counsel was unavailable in the one month the accused's counsel was free. The case-management judge refused to attribute that delay to the accused, found a net delay of 18 months and two weeks, and stayed the charges; the Court of Appeal affirmed.
A majority of the Supreme Court (Côté J., for six judges) allowed the appeal. Two clarifications matter.
First, on the meaning of "exceptional." The Court rejected the intuition that exceptionality implies rarity: "Exceptional circumstances can and do arise frequently" (para. 38). What qualifies a circumstance as exceptional is not its infrequency but that it lies outside the Crown's control and could not reasonably be foreseen, avoided, or remedied.
Second, and more operationally, the Court held that delay caused by a co-accused in a joint trial can be a discrete exceptional circumstance, and adopted the four-part test from R. v. Tran, 2023 ONCA 532, that the Crown must satisfy:
the joint trial is in the interests of justice;
the delay arose as a result of the joint trial;
the delay was unforeseen or reasonably unavoidable; and
the Crown could not reasonably have ameliorated the delay.
Because joint trials should be the norm rather than the exception, and are presumed to be in the interests of justice, the Court accepted that the Crown "can routinely rely upon th[at] presumption" to clear the first criterion (para. 72). That is the line worth reading precisely. The majority was careful to add that the first criterion is not redundant: the presumption is rebuttable, and where a joint prosecution is not in the interests of justice, the Crown's conduct is not reasonable and the deduction is unavailable. Criteria two through four remain live in every case. The Crown's burden on criterion one is light; its burden overall is not automatic.
On the facts, the Crown met all four criteria, the co-accused-counsel delay was deducted as a discrete exceptional circumstance, the net delay fell below 18 months, and the stay was set aside. The Court also flagged the accused's own conduct — verbal notice of a s. 11(b) application in July 2022, but no notice of application until late January 2023 and no completed application until the end of February, in breach of a 120-day case-management deadline — as relevant to the reasonableness of the Crown's overall conduct, though it was not deducted as defence delay because the Crown did not ask for that deduction.
Takeaways for the defence bar
Cooperate visibly, and put it on the record. Vrbanic makes defence inaction a building block of the Crown's case for reasonable conduct at the complexity threshold. If your client is not waiting on a co-accused's application, on a Garofoli, or on anything else, say so on the record, early, and in writing. Silence is no longer neutral.
Assert s. 11(b) early and formally. Jacques-Taylor treats a late or informal application, and a missed case-management deadline, as relevant to whether the Crown behaved reasonably. Verbal notice is not enough. Calendar the deadline and meet it.
The Crown's burden on co-accused delay is not automatic. Concede criterion one if you must, but litigate criteria two through four: did the delay actually flow from proceeding jointly, was it genuinely unavoidable, and did the Crown take reasonable steps once it arose?
Watch the remedy space. Between the majority's Rahey invitation in Vrbanic and Rowe J.'s residual-discretion concurrence, the Crown now has two Supreme Court-endorsed avenues for arguing that a breach should not automatically yield a stay. Neither is law yet. Both will be argued. Be ready to meet them — and to hold the line that, for now, a breach still means a stay.
The ceiling held in Vrbanic and Jacques-Taylor. But anyone reading these two judgments as a defence win is reading the disposition wrong. The Court kept its bright lines and handed the Crown a more flexible set of tools to stay on the right side of them — and, in a concurrence and a Rahey aside, sketched the arguments that would loosen the lines next time. Coming soon, as ever, to a Crown factum near you.