Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Agê Barros on Unsplash.
⏰ On Friday, May 29, 2026, the Supreme Court of Canada will release its decision in R. v. Jacques-Taylor. At issue is how the Jordan framework applies when co-accused are tried together and one accused is ready for earlier trial dates, but the other is not. Specifically, should delay caused by a co-accused’s counsel be treated as state delay, defence delay, or an exceptional circumstance?
🎯 On May 22, 2026, the SCC released its decision in R. v. Saddleback, 2026 SCC 18. In an 8:1 decision, the Court dismissed the Crown’s appeal, holding that the trial judge improperly relied on the victim’s out-of-court statement for the truth of its contents. Because the Crown did not rely on the curative proviso, the Court left the order for a new trial in place.
🤖 76% of Fantasy Courts players correctly predicted the result! The SCCbot got it wrong.
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision. Scroll down for details on this week’s case and a recap of last week’s judgment.
Case to Predict: Who Bears Delay in a Joint Trial?
Appeal by leave from R. v. Jacques-Taylor, 2024 ONCA 458
What Happened?
Mr. Jacques-Taylor and a co-accused were jointly charged with firearms offences. When the parties appeared to schedule trial dates, the first available dates were in August 2023. Mr. Jacques-Taylor’s counsel could have taken those dates, but his co-accused’s counsel could not. Mr. Jacques-Taylor’s counsel was not available in September, so trial was set for October 2 to 4, 2023.
That put the anticipated trial about 22 months and 2 weeks after the charges were laid, above the 18-month presumptive ceiling for provincial court trials under Jordan. Mr. Jacques-Taylor brought a s. 11(b) application. The application judge deducted some delay, including pandemic-related delay and the period when Mr. Jacques-Taylor’s own counsel was unavailable, but did not deduct the period caused only by the co-accused’s counsel’s unavailability. The net delay was still two weeks over the Jordan ceiling. The application judge stayed the charges, and the Court of Appeal dismissed the Crown’s appeal.
What Was Argued at the SCC?
Appellant: The Crown argues that it should not be held responsible for delay caused solely by defence counsel’s schedules. Joint prosecutions are often efficient and in the interests of justice. Where the Crown reasonably proceeds jointly and cannot reasonably avoid or mitigate delay caused by one accused, that delay should be deducted for the co-accused as a discrete exceptional circumstance. The Crown says Hanan was not meant to turn all defence scheduling delay into state delay. In its view, the courts below stripped Jordan of the predictability it was designed to create.
Respondent: Jacques-Taylor says s. 11(b) is an individual right. His counsel was available for the first offered dates, and the delay arose only because the Crown chose to proceed jointly. He argues that the delay was not an exceptional circumstance because it was foreseeable, avoidable, and capable of mitigation. He also says the Crown was put on notice that delay was a problem, but did too little, too late. On his view, Hanan requires courts to consider all relevant circumstances rather than automatically attributing co-accused delay to the defence.
What Else Should You Know Before Making a Prediction?
This case is about the tension between two ideas the Court has endorsed before: joint trials promote efficiency, but Jordan gives each accused an individual right to be tried within a reasonable time. I’m leaning toward appeal dismissed. The Court will be reluctant to create a bright-line rule that all co-accused delay is deductible.
SCCbot
This season, we’re also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. This week, the SCCbot predicts the appeal will be allowed (with ~60% confidence). It expects the Court to clarify that Hanan‘s “contextual approach” was never meant to displace para. 64 of Jordan at the initial date-setting stage — where the sole and direct cause of the delay is defence counsel’s unavailability, the time should still be attributed to the defence. It also expects the Court to hold that scheduling delay caused by a co-accused’s counsel in a reasonable joint prosecution can be deducted as a discrete exceptional circumstance for the other accused, provided the Crown has remained vigilant. The biggest soft spot in the Crown’s case is the eight-month gap between defence notice of an upcoming 11(b) application and the Crown’s first prioritization efforts — and the awkward fact that the first dates offered were already above the 18-month ceiling. SCCbot is now 8 for 12 in its predictions.
Previous Case Recap: Saddleback
R. v. Saddleback, 2026 SCC 18
Held (8:1): Appeal dismissed. The trial judge impermissibly relied on an out-of-court statement by the victim for the truth of its contents. The order for a new trial remains in place.
Key points:
- The victim was killed shortly after being left at a trailer with Mr. Saddleback. At trial, a central issue was whether Mr. Saddleback had the exclusive opportunity to kill him.
- The trial judge relied on evidence that the victim told his girlfriend he was being “ditched” by others during a phone call shortly before his death.
- The majority held that the trial judge used that statement for its truth: to help establish when the others left and when the victim and Mr. Saddleback were alone.
- Because the statement had not been admitted through a hearsay exception, and because the trial judge’s reasons did not explain any permissible non-hearsay use, the conviction could not stand.
- The Crown did not rely on the curative proviso, so the Court would not apply it on its own motion.
- Justice Côté dissented. She would have restored the conviction, reading the trial judge as using the statement only as part of a reliability assessment, not for its truth.
📊 76% of Fantasy Courts players predicted correctly. The SCCbot got it wrong.
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-Tom Slade