Law360 Canada (September 11, 2026, 5:31 PM EDT) -- Ruling 9-0 in favour of the Ontario Crown’s position, the Supreme Court of Canada has declined to impose a presumptive time cap on post-conviction sentencing delays or to make a stay of proceedings the mandatory Charter remedy for unreasonable post-verdict sentencing delay that breaches an offender’s s. 11(b) Charter right to trial within a reasonable time.

Overruling R. v. Charley, 2019 ONCA 726, a leading s. 11(b) case in Ontario that had imposed a presumptive five-month ceiling on post-verdict sentencing delays, Supreme Court Justice Sheilah Martin ruled instead that the test for assessing whether such delays are unreasonable, in violation of Charter s. 11(b), is whether the time taken to impose sentence was “markedly longer” than it “reasonably should have been in all the circumstances”: R. v. R.B.-C., 2026 SCC 30.

“Assessing whether post‑verdict sentencing delay was markedly longer than it reasonably should have been invites a contextual inquiry,” Justice Martin explained. “The question is not whether the delay was long in the abstract, and there is no fixed duration that automatically triggers s. 11(b).”

(Section 11(b) guarantees that any “person charged with an offence has the right … to be tried within a reasonable time”; it spans from the time a charge is laid to the final imposition of any sentence at trial.)

The apex court’s 50-page judgment elaborates that whether sentencing has taken markedly longer than reasonably necessary in all the circumstances “is based on a variety of considerations, and it remains an objective and normative assessment.”

“The proper inquiry is whether sentencing proceedings have taken markedly longer than they should reasonably take in a criminal justice system functioning as it ought to in a free and democratic society, not how long it happens to take in a particular jurisdiction given existing resource constraints,” Justice Martin wrote.

“This assessment is not mechanical, but contextual, and must consider both the overall length of the proceedings and the reasons for particular periods of delay,” said the criminal law expert and former University of Calgary law dean who retired last May but has six months (until Nov. 30) to vote and write in the appeals she previously heard.

“Relevant considerations,” the judge said, “may include the overall duration of the delay; the complexity of the case; anything 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 consideration of how long comparable cases typically take to reach a decision in light of the relevant local circumstances.”

Notably, the Supreme Court went on to rule that when post-verdict sentencing delays are unreasonable, in breach of Charter s. 11(b), the “appropriate and just” remedy to be granted pursuant to Charter s. 24(1) usually will not be the automatic stay of proceedings argued for in the defence’s appeal and by several of the 11 interveners, including the Criminal Lawyers’ Association (Ontario) and the B.C. Civil Liberties Association.

“The remedy that will ordinarily be appropriate for unreasonable post-verdict sentencing delay is a reduction in sentence, although in exceptional cases a stay of proceedings may be available,” Justice Martin held.

She advised that s. 24(1) of the Charter provides a “wide remedial scope” to courts that are engaging in a “discretionary and contextual inquiry.”

“Where a breach of s. 11(b) is established, a court must craft the remedy it considers appropriate and just in the circumstances, having regard to the nature of the breach, its effects, and the need to preserve both the offender’s constitutional rights and the public interest in a lawful and proportionate sentence,” Justice Martin wrote. “The balance of rights and interests is qualitatively different in the post-verdict context as the presumption of innocence has been rebutted by proof of guilt beyond a reasonable doubt.”

The Supreme Court went on to dismiss the appeal of R.B.-C, an Iranian national who came to Ontario on a post-graduation work permit. He was convicted of sexual assault in October 2021 but was not sentenced until December 2022, more than 14 months later.

Justice Martin ruled that although the Ontario Court of Appeal below erred in applying the five-month presumptive ceiling it had previously established in Charley (now overruled), the appeal panel nevertheless reasonably determined the proper and proportionate Charter s. 24(1) remedy — for what it had determined to be more than seven months of unreasonable net delay — was a reduction to 20 months of the two-years-less-a-day conditional sentence (plus probation) that was imposed at trial: R. v. R.B.-C., 2024 ONCA 930.

Justice Martin agreed with the Crown that the default stay of proceedings remedy established for pre-conviction delay should not be extended to unreasonable delay in the post-verdict sentencing phase.

“Once guilt has been validly established, the offender’s s. 11(b) interests, while still real, are attenuated, and society’s interest in the prompt imposition of a fit and proportionate sentence assumes heightened importance,” she explained. “In that context, s. 24(1) requires a discretionary and contextual remedial inquiry, not an automatic result which presumes the inadequacy of tailored alternative remedies.”

The appellant had asked the Supreme Court to decide the test and remedy for unreasonable delay in the sentencing phase of a trial — issues that have sparked varying approaches and decisions across the country since R. v. Jordan, 2016 SCC 27.

Justice Martin’s decision sets national standards that will reverberate across Ontario and other provinces where courts have taken differing approaches.

In Jordan, which dealt with pre-conviction trial delay, the Supreme Court imposed presumptive time limits from the date of the criminal charge to the verdict at trial of 18 months in provincial court and 30 months in superior court. A stay of proceedings is the default remedy when pre-verdict delay breaches Charter s. 11(b).

R.B.-C. urged that a stay of proceedings should also be the mandatory remedy for post-verdict sentencing delay that violates Charter s. 11(b) and that the top court should adopt Charley’s five-month presumptive ceiling on delay.

By contrast, the respondent Ontario Crown contended that a better approach to post-verdict sentencing delay is to ask whether the time taken to impose the sentence was “markedly longer” than it reasonably should have been in all the circumstances.

“We accept that the more flexible standard proposed by the Crown should be adopted,” Justice Martin held.

Unlike the chronic systemic unreasonable trial delays that prompted the Supreme Court to impose presumptive time caps in Jordan, “there is no cogent evidence of a culture of complacency towards delay in sentencing proceedings, either in Ontario or elsewhere in Canada,” the judge noted. “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 held.

Justice Martin acknowledged that the presumptive ceiling approach taken in Charley “has the merit of promoting certainty, discipline, and timely movement toward sentence.”

However, “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.”

Justice Martin added, “this is not to say that sentencing practices, including scheduling practices, should not be subject to careful and ongoing reviews in order to consider the s. 11(b) interests of offenders at this stage in the criminal process.”

Following the top court’s dismissal of R.B.-C.’s appeal that sought a stay of proceedings or a discharge that would prevent a conviction on the appellant’s record, his counsel Arash Ghiassi and Julia Kirby of Savards LLP in Toronto, said, “We are disappointed with the decision that allows sentencing proceedings to continue even after they have become unconstitutional.”

“Courts, more than any other institution, should respect constitutional rights,” the co-counsel said in a statement to the media. “Even though our client’s year-long sentencing process violated his right to be tried in a reasonable time, the court permitted the process to continue — making the illegal delay even longer,” they said. “Allowing cases to drag on past the point of unreasonable delay will not fix the system, but it could make it worse.”

After the court’s decision, Kirby and Ghiassi said their client “now stands to be deported to Iran, a country affected by war and authoritarianism, just as the Canadian government warns against all travel there. We call on the authorities to halt his deportation in these circumstances.”

Ontario Crown counsel Brett Cohen and Ontario’s Ministry of the Attorney General had not responded to requests for comment from Law360 Canada by press time.

In R. B.-C., the Crown argued that the markedly longer test offers analytical clarity and doctrinal workability by providing a single contextual standard capable of accounting for the variable and information-dependent nature of sentencing proceedings.

Against this, the appellant argued that the markedly longer test replicates the discarded pre-Jordan approach to unreasonable trial delay in R. v. Morin, [1992] 1 S.C.R. 771, which approach the appellant urged was unpredictable while unfairly burdening the defence.

The Supreme Court’s judgment notes that the markedly longer test has been followed in Alberta and Nova Scotia, while courts in Manitoba and British Columbia have applied the MacDougall standard, which requires consideration of the length of delay, reasons for delay, any waiver by the accused and prejudice suffered by the accused.

The Quebec Court of Appeal has opted for a “flexible, modulated approach,” which “requires a general and contextual look, but one that keeps in mind the requirements of diligence recognized by the Jordan decision and subsequent jurisprudence.”

Photo of Supreme Court Justice Sheilah Martin: SCC Collection

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