SCC: R. v. R.B.-C. Post-Verdict Sentencing Delay Now 'Markedly Longer' Test

• The Supreme Court of Canada has rejected a presumptive ceiling for post-verdict sentencing delays under section 11(b) of the Charter.
• The new standard, established in *R. v. R.B.-C.*, requires courts to determine if the sentencing delay was "markedly longer" than reasonably expected.
• This decision overrules *R. v. Charley* and distinguishes itself from the *Jordan* decision post-verdict application regarding both the test and the primary remedy.
• The ordinary remedy for undue post-verdict delay is a sentence reduction, with a stay of proceedings reserved for exceptional circumstances.
• The Court upheld a sentence reduction from two years less a day to 20 months in the *R. v. R.B.-C.* case, where the delay exceeded 14 months.

Criminal defence lawyers must now apply the 'markedly longer' test, rather than a presumptive ceiling, when challenging post-verdict sentencing delays under s. 11(b) of the Charter.

The Supreme Court of Canada has recently clarified the standard for assessing unreasonable post-verdict sentencing delays, rejecting the application of a fixed presumptive ceiling. In a unanimous decision, *SCC R. v. R.B.-C.*, Retired Justice Sheilah Martin articulated that courts must now determine whether the time taken to impose a sentence was "markedly longer" than what would be reasonably expected given all the circumstances of the case. This ruling establishes a new framework for evaluating such delays under section 11(b) of the Charter.

This "markedly longer" test aligns with the standard previously applied by the Supreme Court to delays occurring during "verdict deliberation time" following a trial. Justice Martin emphasized that adopting this consistent standard for post-verdict sentencing delay promotes coherence and continuity throughout the broader s. 11(b) framework, preventing the creation of a fragmented system with different tests for each stage of the judicial process. The decision underscores a nuanced approach to assessing the reasonableness of elapsed time after a finding of guilt but before sentencing.

The *R. v. R.B.-C.* decision notably contrasts with the Supreme Court's seminal ruling on unreasonable delay, *R. v. Jordan*, which introduced specific presumptive ceilings for the period between the laying of a charge and the conclusion of a trial. *Jordan* set these limits at 18 months for provincial courts and 30 months for superior courts, or for provincial court cases following a preliminary inquiry. The current ruling explicitly states that these *Jordan* ceilings do not apply to the post-verdict sentencing period.

Furthermore, the Supreme Court Canada sentencing delay decision directly overruled the Ontario Court of Appeal's judgment in *R. v. Charley*. That earlier decision had attempted to apply a *Jordan*-like approach by establishing a five-month ceiling for post-verdict sentencing delays. Justice Martin explained that while *Charley*'s approach offered the benefit of certainty, it failed to adequately consider the underlying rationale for the *Jordan* ceilings, which were implemented due to compelling evidence of a systemic issue affecting the time required to bring accused persons to trial, rather than merely for the sake of bright-line rules. This distinction highlights the different considerations at play when evaluating pre-trial versus post-verdict delays under the Charter.

When assessing whether a delay is "markedly longer," courts are directed to consider several factors. These include the overall duration of the delay, though the Court cautioned that elapsed time alone is "extremely unlikely" to meet the standard except in truly exceptional cases. Other considerations encompass the complexity of the case, information provided by the parties, the sentencing judge, or the court regarding specific periods of delay, and the conduct and positions taken by the parties involved. Comparisons to how long similar cases take in local circumstances can also be made, but with the important caveat that such comparisons hold limited weight if local timelines reflect systemic under-resourcing.

The Supreme Court affirmed that the appropriate remedy for undue post-verdict sentencing delay is typically a sentence reduction. A stay of proceedings, which is the mandated remedy in non-exceptional *Jordan* cases, is reserved for only the most exceptional circumstances in the context of post-verdict delays. In the specific case of *R. v. R.B.-C.*, the Court found that a delay exceeding fourteen months after the finding of guilt was indeed markedly longer than reasonable. Consequently, the SCC dismissed the appeal, upholding the Ontario Court of Appeal's decision to reduce the conditional sentence from two years less a day to 20 months.

Criminal defence lawyers must now apply the 'markedly longer' test, rather than a presumptive ceiling, when challenging post-verdict sentencing delays under s. 11(b) of the Charter. This shift requires a different strategic approach compared to arguments concerning pre-trial delays under *Jordan*. The primary remedy for such delays is a sentence reduction, with a stay of proceedings reserved for exceptional circumstances, necessitating a re-evaluation of expectations for relief.

The defence bar has expressed mixed reactions to the *R. v. R.B.-C.* decision. Joseph Neuberger, a Toronto-based lawyer, commented that the reasoning is sound, establishing a straightforward standard that considers all facts while still allowing for a stay in exceptional situations. Conversely, Daniel Brodsky, also from Toronto, noted that many defence lawyers were not entirely surprised by the outcome, despite hoping for a different result. He acknowledged that sentencing often takes too long, particularly in extraordinary proceedings, and suggested that the Supreme Court might be open to reconsidering its decision in the future.

Criminal defence lawyers must now apply the 'markedly longer' test, rather than a presumptive ceiling, when challenging post-verdict sentencing delays under s. 11(b) of the Charter. The primary remedy for such delays is a sentence reduction, with a stay of proceedings reserved for exceptional circumstances, requiring a shift in strategy compared to pre-trial delay arguments under *Jordan*.

Source: Original reporting via Canadian Lawyer Magazine