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Criminal - Joint Trials. R. v. Singh [joint trial]
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here brought against a Charter s.11(b) ['trial delay'] large-scale drug offence stay.
The court considers the role of joint trials in a Charter s.11(b) context:[1] Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. Courts must reconcile this fundamental right with two of the administration of justice’s most compelling imperatives: trying co-accused jointly and conducting large project prosecutions. The flexible framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, achieves this very goal. It recognizes that joint trials are ordinarily in the interests of justice and that complexity is sometimes unavoidable in project prosecutions, while holding the Crown to its duty to prevent and mitigate delay. Applying Jordan mechanically without meaningfully accounting for these interests risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions. Properly applied, Jordan prevents such outcomes while still safeguarding timely justice for the accused.
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[4] I would allow the Crown’s appeals and set aside the stays because the joint trial and the project’s scale justified the additional time taken. In my respectful view, the application judge did not meaningfully account for these vital interests. His preferred alternative to a joint trial, severance, was not a panacea. Rather, it would have undermined the very interests joint trials safeguard – advancing the search for truth, strengthening public confidence in the courts, and combatting systemic delay. By focusing narrowly on the relative simplicity of the individual charges, he overlooked the structural complexity of the project as a whole. The complexity of the case caused everything to take longer – even for the respondents – and easily justifies the remaining modest delay.
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C. ANALYSIS
[12] The Crown asks this court to set aside the stays of proceedings and remit the matters for trial, arguing that the application judge erred in his assessment of exceptional circumstances. It submits, first, that the application judge should have deducted the 107 days of joint-trial scheduling delay as a discrete exceptional circumstance. Second, it contends that the application judge failed to recognize that the complexity of the case justified the remaining delay in excess of the Jordan ceiling.
[13] I would allow the appeal. I agree with the Crown on both issues. Although findings regarding exceptional circumstances generally attract deference, a correctness standard applies here because the application judge misapplied the governing legal principles: R. v. Zahor, 2022 ONCA 449, at para. 79; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 28, leave to appeal refused, [2020] S.C.C.A. No. 53.
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(1) The Joint Trial Delay Should Be Deducted
[14] On the first issue, I accept the Crown’s position that the application judge should have treated the 107 days arising from joint-trial scheduling difficulties as a discrete exceptional circumstance and deducted them accordingly. I begin by reviewing the applicable legal principles before turning to their application on the record.
(a) Jordan Accommodates Joint Trials
[15] Courts have consistently emphasized that joint trials are strongly preferred over separate trials because they promote the proper administration of justice. Trying co-accused together – particularly in conspiracy cases or where the charges arise from a common series of events – advances the truth-seeking function in a way that separate trials may undermine. Joint trials also safeguard public confidence by reducing the burdens multiple proceedings impose on witnesses, jurors, and the community, and by avoiding the risk of inconsistent verdicts that may erode trust in the justice system. In addition, they achieve significant systemic efficiencies by preventing duplicative proceedings that would increase costs, strain judicial resources, and exacerbate delay. Accordingly, joint trials are the presumptive rule and severance the exception: R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 30-32; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at paras. 47-48; R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-18; R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485 (C.A.), at para. 59; R. v. Rai, 2019 BCCA 377, 381 C.C.C. (3d) 1, at para. 154.
[16] Jordan accommodates these compelling policy considerations. The Supreme Court has recognized that joint trials may require additional time and may, in appropriate cases, justify delay in excess of the ceiling. Delay resulting from a joint trial that serves the interests of justice should, therefore, be deducted as a discrete exceptional circumstance where it was unforeseen or reasonably unavoidable and where the Crown acted reasonably to mitigate it: Jordan, at para. 77; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6; R. v. Tran, 2023 ONCA 532, 429 C.C.C. (3d) 55, at para. 40.
[17] At the same time, Jordan reconciles this strong policy preference with an accused’s right to be tried within a reasonable time. The “interests of justice” analysis accommodates both considerations, and the Crown remains obliged to take reasonable steps to move the case forward and to mitigate joint-trial delay. In some circumstances, this may require severance – particularly where a joint trial unduly complicates the proceeding, causes substantial delay, or effectively holds an accused who wishes to proceed promptly hostage to the delays of co-accused: Jordan, at paras. 77, 79; R. v. Manasseri, 2016 ONCA 703, 429 C.C.C. (3d) 55, at paras. 323, 367-75, leave to appeal refused, [2016] S.C.C.A. No. 513; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 138-42, 171.
[18] However, the Crown is not required to forgo the systemic benefits of joint trials by severing proceedings as a matter of routine whenever a case approaches the ceiling. Severance is not invariably a solution, particularly where its benefit to the accused’s interest in a timely trial is marginal. Overuse of severance risks fragmenting complex project cases and other multi-accused proceedings into numerous separate trials, thereby compounding demands on already strained courts. This would undermine the truth-seeking function, erode public confidence, frustrate Jordan’s objective of systemic reform, and perpetuate the very systemic delay that Jordan sought to address: Rai, at paras. 153-54.
[19] To avoid this systemic spiral, courts must give meaningful effect to the strong policy favouring joint trials. That policy will frequently justify modest scheduling delays – an inherent feature of joint trials that Jordan expressly contemplates: Tran, at paras. 43-44; Gopie, at paras. 166, 169-70, 174. . R. v. Beak
In R. v. Beak (Ont CA, 2025) the Ontario Court of Appeal dismissed a merged two-appellant murder appeal, here where "in addition to being guilty of sexual assault, the appellants were also guilty of first degree murder, pursuant to s. 231(5) of the Criminal Code".
The court considers that "in a trial with multiple accused, one accused does not have a right to know the position of his co-accused in advance of putting on his own defence":(3) The trial judge did not err in declining to rule on whether Mr. Beak could adduce evidence from two jailhouse informants until such time as it was clear whether Mr. Beak intended to rely on the evidence
[61] Near the end of the Crown’s case, counsel for Mr. Murillo learned that Mr. Beak was considering calling evidence from two jailhouse informants who alleged that Mr. Murillo had admitted to his involvement in the killing of Ms. Estrada. It was anticipated that the defendants would put forward antagonistic defences. Mr. Murillo therefore brought an application for an order excluding the evidence of the jailhouse informants. The trial judge found that although the evidence of the jailhouse informants was potentially admissible, it was premature to hold a voir dire on the issue until such time as Mr. Beak decided that he actually wished to call that evidence. The trial judge ruled that such voir dire was not going to occur prior to Mr. Murillo entering upon his defence.
[62] Mr. Murillo argues that this failure to rule on the matter infringed his right to full answer and defence since it forced him to commence his defence without knowing the case he would be required to meet.[3] This, in turn, gave him no option other than to testify in order to provide an explanation for the anticipated inculpatory evidence of the jailhouse informants.
[63] The short answer to Mr. Murillo’s objection is that in a trial with multiple accused, one accused does not have a right to know the position of his co-accused in advance of putting on his own defence: R. v. Sandham (2009), 2009 CanLII 59685 (ON SC), 248 C.C.C. (3d) 392 (Ont. S.C.), at para. 25. Thus, while the ordering of the names on an indictment undoubtedly entails tactical advantages and disadvantages to each of the accused (including the order in which an accused will be called upon to put forth a defence), such tactical advantages and disadvantages are inherent in the adversarial process and do not render the trial unfair: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 61-63. . R. v. Pan
In R. v. Pan (Ont CA, 2023) the Court of Appeal comments on the greater range of submissions [para 88] and evidence [para 131] that counsel for a co-accused has in a joint trial:[88] I begin with the basic principle that counsel for a co-accused in joint trials has more latitude, than does the prosecution, to make submissions that may be prejudicial to another accused. The prosecutor is more constrained: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 128 O.A.C. 140 (C.A.), at para. 111.
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[131] While the prosecution is prohibited from leading propensity evidence against an accused, one accused may be allowed to lead propensity evidence against a co-accused in a joint trial: R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330 at paras. 65-68, leave to appeal refused, [2016] S.C.C.A. No. 514; R. v. Marks (2000), 2000 CanLII 4096 (ON CA), 48 O.R. (3d) 161, 145 C.C.C. (3d) 569 (Ont. C.A.) at para. 17.
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