Post-Verdict Delay Gets its Own Ceiling: R. v. Jordan
In
many criminal cases, particularly the more serious cases, sentencing
will, of necessity, take time, sometimes a matter of months.
Dangerous
offender applications, situations in which expert reports are
required or extensive evidence is tendered, for instance, significantly lengthen the sentencing process.
While
the Jordan
analysis
does apply to post-verdict delay, the presumptive ceilings
established in Jordan
do
not include post-verdict delay. Post-verdict delay, for the purposes
of applying a presumptive ceiling, is to be assessed separately from
pre-verdict delay and is subject to its own presumptive ceiling.
R.
v. Charley,
2019 ONCA 726.
The
Court of Appeal for Ontario in R.
v. Charley fixed that ceiling at five months. Five months is the point
at which the delay is sufficiently long that it is regarded as
presumptively unreasonable for the purposes of s. 11(b). The onus
falls to the Crown to justify the delay.
Where
a section 11(b) breach occurs prior to verdict, a stay of proceedings
is the only available remedy. This is settled law. However, where
section 11(b) has been breached post-verdict, the appropriate remedy
remains an open question.
Stuart
O'Connell, O'Connell Law Group (All rights reserved to author).
FN:
Several appellate courts in addition to the ONCA have held that the
presumptive ceilings in Jordan
run
from the laying of the charge to the verdict or anticipated date of
the verdict and not to the date of sentence: see S.
C.W.,
2018 BCCA 346 at para 34; R.
v. Rode,
2019 SKCA 17 (CanLII), leave to appeal refused, [2019] S.C.C.A. No.
112; R.
v. Le compte,
2018 NBCA 33 (CanLII); R.
v. Rice,
2018 QCCA 198 (CanLII).
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