Unanimous court adopts ‘markedly longer’ test in R. v. R.B.-C.; sentence reduction is the ordinary remedy for delay
The Supreme Court of Canada has ruled that the right of individuals to be tried within a reasonable time is not subject to a presumptive ceiling for the post-verdict sentencing period.
Instead, Justice Sheilah Martin, writing for a unanimous court in R. v. R.B.-C., stipulated that courts must ask whether the time taken to impose a sentence was markedly longer than it reasonably should have been in all the circumstances.
That standard, Martin pointed out, was the same standard that the Supreme Court had applied to delay occasioned by “verdict deliberation time” following trial.
“Applying that same standard to post-verdict sentencing delay promotes coherence and continuity within the s. 11(b) framework and avoids creating a patchwork of stage-specific tests,” Martin reasoned.
The considerations that went into deciding whether a delay was “markedly longer” included the following: the overall duration of the delay, with the court’s qualification that it was “extremely unlikely” that elapsed time alone will meet the standard except in exceptional cases; the complexity of the case; information from the parties, the sentencing judge, or the court that might inform the reason for specific periods of delay; the parties’ positions and conduct; and a comparison of the elapsed time against how long comparable cases take in local circumstances, subject to the caveat that comparisons carry limited weight where timelines reflect systemic under-resourcing.
The appropriate remedy for undue post-verdict sentencing delay, Martin concluded, was a sentence reduction, but a stay might be appropriate in exceptional circumstances. In the instant case, the delay of more than fourteen months after the finding of guilt markedly exceeded what was reasonable. The court dismissed the appeal, upholding the Ontario Court of Appeal’s reduction of the conditional sentence from two years less a day to 20 months.
The decision in R. v. R.B.-C. contrasts with R. v. Jordan, the court’s seminal ruling on unreasonable delay, which fixed a presumptive ceiling of 18 months in provincial courts and 30 months in superior courts (or in provincial court following a preliminary inquiry) for the allowable delay between the laying of a charge and the actual or anticipated end of trial.
The court also overruled the Ontario Court of Appeal’s decision in R. v. Charley, which relied on Jordan in creating a five-month ceiling for post-verdict sentencing.
“Although [Charley’s] approach has the merit of promoting certainty, discipline, and timely movement toward sentence,” Martin wrote, “it did not sufficiently consider the rationale for adopting the Jordan ceilings: they were not created simply because bright-line rules are useful, but because there was cogent evidence of a real systemic problem as to the time required to bring accused persons to trial.”
As well, R. v. R.B.-C. contrasts with Jordan by citing sentence reduction, rather than the stay mandated in Jordan, as the remedy in non-exceptional cases.
The reaction of the defence bar has been mixed.
“The reasoning makes perfect sense,” says Joseph Neuberger of Toronto’s Neuberger & Partners LLP. “It creates a very simple standard that takes into consideration all the facts, yet leaves the door open for a stay in exceptional circumstances.”
But Toronto-based Daniel Brodsky says many defence lawyers were not entirely surprised by the decision, though they had hoped for a different result.
“Anybody in criminal law knows that it takes too long to get a client sentenced in too many cases, especially in extraordinary proceedings.”
Brodsky believes, however, that the Supreme Court is open to reconsidering its decision.
“Here, there was no evidence before the court of systemic problems and territorial conditions. This differs from Jordan, where there was an extensive evidentiary record that prompted the imposition of the presumptive time periods.”
Indeed, Justice Martin noted that the existing jurisprudence confirms that “departures from, or extensions of, the Jordan ceilings must be grounded in cogent evidence of a pressing need for systemic change.”
Overall, Brodsky sees the judgment as both a warning and an invitation.
“The court is saying that, for now, defendants are entitled to remedies short of a stay when common sense judgment determines that post-verdict sentencing has taken too long. But the decision also suggests that might change if there is a proper evidentiary record.”
