New Jordan Law from the SCC: Sentencing Delay Under section 11(b) of the Charter


The Criminal Code requires that sentencing must take place “as soon as practicable” after guilt is found (section 720, Criminal Code); however, until recently, the constitutional boundaries governing the length of the post-verdict sentencing process remained open.

In R. v. Jordan, the Supreme Court of Canada articulated a framework for determining whether the length of a criminal trial infringes s. 11(b) of the Canadian Charter of Rights and Freedoms, establishing presumptive ceilings of 18 months in provincial courts and 30 months in superior courts. However, the Jordan ceilings do not govern the entire lifecycle of a criminal proceeding; they apply strictly to the period between the laying of the charge and the actual or anticipated end of evidence and argument at trial.

Up to now, the Court had not imposed presumptive ceilings for delays at any other stage. That changed with the Court's ruling in R. v. R.B.-C., 2026 SCC 30 (CanLII), which addressed how to assess the reasonableness of delay in the distinct period between conviction and sentencing.

The "Markedly Longer" Standard

Rather than importing a rigid numerical ceiling into the sentencing phase, the Supreme Court opted for a qualitative approach. The "markedly longer" standard asks: how long should sentencing reasonably have taken in all the circumstances?

This requires courts to compare the time actually taken to complete the sentencing process with the time it reasonably should have taken. If the sentencing process took markedly longer than it should reasonably take in a criminal justice system functioning as it ought to in a free and democratic society, s. 11(b) of the Charter is violated.

Unlike pre-trial delay where a stay of proceedings is the mandatory minimum remedy, the remedy ordinarily appropriate for unreasonable post-verdict sentencing delay is a reduced sentence. Because the presumption of innocence no longer applies post-conviction, the balance of liberty interests shifts.

Sentence Reduction in R. v. R.B.-C.

In R. v. R.B.-C., the post-verdict sentencing delay exceeded five months. Finding a violation of s. 11(b) because the sentencing process took markedly longer than warranted in the circumstances, the Court reduced the offender's conditional sentence of two years less a day down to 20 months—a meaningful 4-month reduction.

This decision provides essential guidance for practitioners navigating post-trial delay, ensuring that the constitutional right to be tried (and concluded) within a reasonable time retains teeth even after a finding of guilt.

Stuart O’Connell is a criminal defence lawyer and a victims’ rights lawyer based in Toronto.  A former law professor and current federal tribunal adjudicator and panel chair, Stuart writes and lectures on criminal justice reform.

 

 

 

Location: Toronto, ON, Canada

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