The Supreme Court Decisions
On May 29, 2026, the Supreme Court of Canada released R. v. Vrbanic [1] (“Vrbanic”) and R. v. Jacques-Taylor [2] (“Jacques-Taylor”), clarifying how delay will be assessed under section 11(b) of the Charter.
In these two companion decisions arising from complex multi-accused criminal prosecutions, the Supreme Court reaffirmed the Jordan framework, which sets presumptive ceilings of 18 months (provincial court) and 30 months (superior court) from charge to trial, after which delay is presumed unreasonable. The decisions also clarify how courts will assess delay in complex cases, especially those involving large amounts of evidence, multiple parties, and scheduling challenges.
In Vrbanic, the Court refined the existing “case complexity” exception, clarifying a three-part test for when complexity will justify delay beyond the ceilings. To justify delay under the "case complexity exception", it must be established that: (1) the case is particularly complex such that delay beyond the ceiling is prima facie justifiable; (2) reasonable steps were taken to proactively mitigate the delay occasioned by that complexity; and (3) the specific delay is justified in light of the degree of complexity of the case. The Court clarified that a particularly complex case must be "inordinate" or "exceptional," though it need not be "rare," and that hallmarks such as voluminous disclosure, significant requirements for expert evidence, a large number of witnesses, multiple charged parties, and novel or complex legal issues can establish complexity. The first two elements function as a threshold that must be cleared before the Court conducts the justification analysis under the third element. The Court emphasized that the inquiry is a holistic one, with the aim of removing strategic incentives for persons facing complex trials to "flock to provincial courts in the hope of securing stays under the lower Jordan ceiling".
In Jacques-Taylor, the Court addressed delay in joint trials, holding that delay arising from coordinating multiple accused and related scheduling challenges may, in some circumstances, constitute a discrete exceptional circumstance. In that case, the Court found that the unavailability of co-accused’s counsel did constitute a discrete exceptional circumstance because it was inextricably tied to the Crown's decision to proceed jointly, the joint trial was in the interests of justice, the scheduling conflict was outside the control of the Crown, and the Crown could not have reasonably remedied the period of delay caused by the scheduling conflict. The Court, similar to Vrbanic, emphasized that such discrete exceptional events need not be rare or infrequent, rather, what renders an exceptional circumstance is that it lies outside the control of the Crown.
Across both decisions, the Court emphasized that delay must be assessed in light of how complex modern prosecutions actually operate (such as, for example, in relation to large volumes of digital disclosure, multiple accused), while still enforcing strict time limits under Jordan.
Implications of Decisions on Modern OHS Prosecutions
Although these decisions arose in the criminal context, the Supreme Court’s analysis about increasing complexity applies to occupational health and safety (OHS) prosecutions, and are particularly relevant where OHS prosecutions involve the following:
- Significantly large disclosure, including electronic records such as emails, training logs, incident reports, and regulatory communications;
- Multiple charged parties, including employers, supervisors, and sometimes contractors or corporate entities arising from the same incident;
- Greater reliance on expert evidence, particularly around technical safety standards, engineering issues, and causation; and
- More procedural and evidentiary steps, including pre‑trial motions and challenges relating to regulatory investigations.
These features mean that an OHS prosecution may require more time to prepare and adjudicate. These complexities or joint trial scheduling difficulties may render a delay that goes beyond the Jordan timelines as justified in appropriate cases.
Key Takeaways for Employers Facing OHS Prosecutions
A key takeaway for employers arising from these decisions is that the Crown may have an additional basis to argue that there were exceptional circumstances that would excuse the prosecution going beyond the presumptive ceilings established in Jordan. Courts will focus on whether the time taken was justified by the actual demands of the prosecution.
However, it is important to note that not all delay will be excused. The Supreme Court reaffirmed that exceeding the Jordan ceilings remains presumptively unconstitutional. Delays that cannot be tied to these exceptional circumstances will still be considered as a violation of the Charter.
