Supreme Court says there’s no presumptive ceiling for sentencing delays

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While a person has the right to be tried within a reasonable time, the Supreme Court of Canada says there is no strict deadline to adhere to when sentencing an offender after they’ve been convicted. 

The Court’s unanimous decision on a presumptive ceiling overturns an Ontario Court of Appeal decision that sought to create a Jordan-like bright line. It also clarifies that when it comes to sentencing delays, the proper remedy is a reduced sentence, not a stay of proceedings.

In the case at hand, RB-C was an Iranian in the country on a post-graduate work visa when he was convicted of sexual assault. The sentencing portion of the trial took over a year to complete, prompting RB-C to apply for a stay of proceedings, citing the five-month presumptive ceiling imposed by the Ontario Court of Appeal in Charley.

The trial judge dismissed the motion, calculated the acceptable delays as being under the ceiling in Charley, and sentenced RB-C to a conditional sentence of two years less a day and a year of probation. 

The Ontario Court of Appeal upheld the conviction but disagreed with the trial judge’s calculation of delays and said the ceiling in Charley had been violated. The conditional sentence was reduced by four months, but RB-C sought a stay of proceedings and appealed to the Supreme Court of Canada.

The top court found that although the delay violated RB-C’s Charter right to be tried within a reasonable time, the four-month reduction in the sentence was the appropriate remedy. It also declined to adopt the rule from Charley, finding there was no need for a presumptive ceiling in light of the Court’s ruling in Jordan. The framework set out in that decision applies only to the period between the laying of charges and the end of trial, not to the period between conviction and sentencing.

Jordan was aimed at addressing a culture of complacency that led to excessive delays in bringing cases to trial. The same systemic problem doesn’t exist with sentencing, however.

“This Court has consistently rejected invitations to extend the Jordan ceilings to other phases of the criminal process or to recalibrate them for particular types of proceedings absent evidence of a real problem,” Justice Sheilah Martin wrote for the court.

“Absent an evidentiary record that demonstrates a widespread, structural problem with delay at the sentencing stage of criminal proceedings, there is no principled basis for introducing a new presumptive ceiling at that stage.”

She said that because sentencing happens after a guilty verdict, the presumption of innocence is no longer at play, so the balance of liberty interests has shifted. While a reduction in sentence is the appropriate remedy for an unreasonable sentencing delay, in exceptional cases, a stay of proceedings may be available.

The Court said the “markedly longer” test is appropriate for determining if a sentencing delay was unreasonable, as it is consistent with the Court’s other s.11(b) jurisprudence and avoids introducing unnecessary complexity into the framework.

Chris Rudnicki, lead counsel with Rudnicki & Company in Toronto, who represented the Canadian Civil Liberties Association as intervenors in the case, says they were disappointed with the decision, as the remedy of a sentence reduction is insufficient to motivate anyone to move quickly. It just becomes one more factor in a sentencing decision.

“The whole logic of Jordan really depends on the bright line for unreasonable delays,” he says. 

“As in Jordan, that bright line is flexible if there’s an exceptional circumstance or if something happens that’s a discreet event or in complex cases, but it’s a starting point.”

Rudnicki expects this will lead to more sentencing delays, which doesn’t benefit anyone. He thinks that a bright line remains the better test.

“It gives everyone a goalpost. The Crown, the bench, and defence counsel all know this is what we’re working toward, and this is what we’re trying to get it below.”

Lauren Shadley, a partner with Shadley Knerr S.E.N.C.R.L. in Montreal and chair of the CBA’s criminal justice section, says relying on sentencing reductions will have broader unintended consequences in the system. She expects sentencing hearings may become longer and more complex because courts will have to litigate the causes and consequences of delay. 

“I’m also worried that reductions may overlap with different credits for pre-trial custody, with strict bail conditions, harsh conditions, and the resulting sentence may no longer reflect the gravity [of the offence].”

In trying to move away from bright lines, she says the Court is carrying on with its jurisprudence in Vrbanic and Jacques-Taylor.

“The CBA believes that there are not enough resources in the system, and it all goes toward the culture of complacency toward delay.”

Although Justice Martin said there is no systemic problem with sentencing delays, Shadley says anecdotal evidence from across the country suggests there is. Just because it wasn’t present here doesn’t mean courts can’t take notice of it.

“The government should be addressing sources of delays that include judicial vacancies, shortages in the courtrooms, not having enough prosecutors or court staff,” she says.

Rudnicki thinks this decision could see broader play as Parliament’s recent criminal justice legislation in Bill C-16 comes into force, with the government’s desire to reduce the use of stays in most cases.

“We’re not going to see those cases for another year or two, but when we (do), those trial judges are going to be reaching to RB-C to think about how to approach the remedial question in Jordan cases of pre-trial delay,” he says.

“A sentence reduction is really no remedy in the pre-trial phase.”