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Charter - s.11(b) Trial Delay - Basics. R. v. R.B.-C.
In R. v. R.B.-C. (SCC, 2026) the Supreme Court of Canada dismissed a defendant's Charter s.11(b) ['trial delay'] appeal, this against an Ontario Court of Appeal appeal decision which "revised the calculation of the net post-verdict sentencing delay and found that the delay exceeded the five-month presumptive ceiling".
Here the court summarizes this ruling, which addresses the delay between conviction and sentencing ('post-verdict sentencing delay'):[1] Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “[a]ny person charged with an offence has the right . . . to be tried within a reasonable time”. This constitutional commitment attaches to each of the many stages in a criminal proceeding and spans from the initial laying of the charge to the final imposition of any sentence. It affirms the core principle that “[t]imely justice is one of the hallmarks of a free and democratic society” (R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 1).
[2] In Jordan, this Court articulated a framework for determining whether the length of a criminal trial infringes s. 11(b). Faced with evidence that a culture of complacency towards delay had taken hold, this Court established presumptive ceilings that require trials to be concluded within 18 months in provincial courts and 30 months in superior courts (para. 46). To date, this Court has not imposed presumptive ceilings for delays at any other stage of a criminal proceeding.
[3] This appeal requires this Court to determine how to assess the reasonableness of delay in the period between conviction and sentencing. The appellant asks us to adopt the Court of Appeal for Ontario’s approach in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, at para. 87, and impose a five-month presumptive ceiling over which delay would be presumed to breach s. 11(b). In the Crown’s view, the better approach is to ask whether the time taken to impose the sentence was markedly longer than it reasonably should have been in all the circumstances.
[4] We accept that the more flexible standard proposed by the Crown should be adopted. Parliament has specified that sentencing must take place “as soon as practicable” after guilt is found (Criminal Code, R.S.C. 1985, c. C-46, s. 720). This statutory requirement reflects the reality that while sentencing in Canadian criminal law may occur at a hearing (or series of hearings), it requires an information-gathering and decision-making process that begins once guilt is established and ends only when all components of the sanction (including ancillary orders) are fixed. To discharge its duty to impose a fit and proportionate sentence that reflects the moral blameworthiness of the offender and the severity of the offence, a court requires suitable evidence and sound submissions concerning the range of available penalties.
[5] Whether sentencing has taken markedly longer than reasonably necessary in the circumstances is based on a variety of considerations, and it remains an objective and normative assessment. Relevant considerations 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.
[6] Where a breach of s. 11(b) is established, 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. Section 24(1) of the Charter provides a wide remedial scope and gives rise to a discretionary and contextual inquiry. 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.
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A. Jordan Established Presumptive Ceilings for Criminal Trial Delay
[23] It is settled law that the protections afforded by s. 11(b) extend beyond the end of evidence and argument at trial, up to and including the date when a sentence is imposed (R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 3; R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 19).
[24] In Jordan, the Court fundamentally recast the framework for determining whether an accused has been tried within a reasonable time under s. 11(b) of the Charter. The majority concluded that the prior framework set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, had become too unpredictable, complex, and retrospective, and had contributed to a “culture of complacency” toward delay in the criminal justice system (para. 4; see also R. v. Jacques-Taylor, 2026 SCC 20, at para. 40; R. v. Vrbanic, 2026 SCC 19, at para. 22). The Court therefore replaced that framework with a new presumptive-ceiling approach intended to provide clearer guidance, encourage proactive case management, and protect not only the accused’s liberty, security of the person, and fair-trial interests, but also the interests of victims, witnesses, and public confidence in the administration of justice.
[25] At the centre of the new framework is a presumptive ceiling for the time between the laying of the charge and the actual or anticipated end of trial. The ceiling is 18 months for cases tried in provincial court, and 30 months for cases tried in superior court (or in provincial court following a preliminary inquiry). In calculating the relevant delay, periods waived by the defence or attributable to defence conduct are deducted. If the resulting net delay exceeds the applicable ceiling, the delay is presumptively unreasonable and the burden shifts to the Crown to rebut that presumption by establishing exceptional circumstances.
[26] Where the delay falls below the presumptive ceiling, the burden remains on the defence. A stay below the ceiling will be rare and limited to clear cases. The defence must show both that it took “meaningful steps that demonstrate a sustained effort to expedite the proceedings”, and that “the case took markedly longer than it reasonably should have” (Jordan, at para. 48). This assessment is contextual, not mathematical, and demands consideration of “the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings” (para. 87).
[27] However, the presumptive ceilings established in Jordan do not govern the entire period to which s. 11(b) applies. They apply only to the period between the laying of the charge and the actual or anticipated end of evidence and argument at trial (Jordan, at para. 49; see also K.G.K., at paras. 31 and 33). Indeed, the Jordan majority explicitly acknowledged that the “issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered” (para. 49, fn. 2).
[28] The Court of Appeal for Ontario extended the logic of Jordan to post-verdict sentencing delay in Charley. The court accepted that s. 11(b) applies not only to the period before verdict, but also to the sentencing phase, relying on the established principle that the right to be tried within a reasonable time includes the right to be sentenced within a reasonable time. However, the court held that the 18- and 30-month ceilings created in Jordan do not include post-verdict delay. This period of delay must therefore be assessed separately because, after conviction, the accused is no longer presumed innocent and the fair-trial interests protected before verdict are spent, although significant liberty and security interests remain.
[29] The court in Charley rejected the Crown’s submission that post-verdict delay should be assessed under Jordan principles but without any presumptive ceiling. Doherty J.A. reasoned that presumptive ceilings are the “heart” of the Jordan framework: without them, the analysis would revert to the retrospective, case-specific uncertainty that Jordan was designed to replace (para. 61). The court held that the same concerns animating Jordan — certainty, analytical simplicity, proactive case management, and the need to displace a culture of complacency — apply with equal force to sentencing. It therefore created a separate five-month presumptive ceiling for post-verdict delay (para. 87). As in Jordan, that ceiling is not an aspirational target; it is the point at which post-verdict delay becomes presumptively unreasonable and the Crown bears the burden of justification.
[30] In K.G.K., released after the Court of Appeal’s decision in Charley, this Court declined to extend the Jordan presumptive ceilings to verdict deliberation time, emphasizing that those ceilings were a targeted response to delay in bringing accused persons to trial and were not intended to govern all phases of the criminal process. Recognizing that deliberation time is inherently variable and closely tied to the adjudicative function, the Court adopted a different standard: whether the time taken to render a verdict was “markedly longer than it reasonably should have [been] in all of the circumstances” (para. 4). That elevated threshold was justified in part by the presumption of judicial integrity, which reflects confidence that judges act conscientiously, manage their workload responsibly, and take no longer than reasonably necessary to decide cases, absent compelling evidence to the contrary. . R. v. Donnelly [illustrative]
In R. v. Donnelly (Ont CA, 2023) the Court of Appeal set out the Jordan Charter 11(b) delay limits, here for retrials:[24] The Supreme Court in R. v. J.F., 2022 SCC 17, has recently confirmed that while retrials must be prioritized in scheduling hearings, the same ceilings set in Jordan apply to retrial delay: at para. 4.
[25] In this case, the net delay was 11 months and 22 days, calculated as follows:Total delay: 32 months (June 20, 2018 – February 19, 2021), less:
Covid delay (discrete event): 10 months 9 days (March 30, 2020 – December 8, 2021);
Defence waiver: 3 months 9 days (September 30, 2019 – January 8, 2020);
Defence delay: 1 month 5 days + 5 months 15 days (August 20, 2018 – September 25, 2018; April 15, 2019 - September 30, 2019) = 6 months 20 days
Total net delay = 11 months, 22 days. [26] The net delay in the present case is well below the presumptive 30-month Jordan ceiling for cases tried in the Superior Court (Jordan, at para. 105) and is not unreasonable for the retrial of this case. . R. v. Musclow [IMPORTANT - formulaic presentation of the law, needs studying]
In R. v. Musclow (Ont CA, 2024) the Ontario Court of Appeal cites an earlier CA case's formulaic dictum, which can greatly assist in applying Charter s.11(b) ['trial delay'] doctrine:(a) Foundational Principles
[22] The framework for assessing unreasonable delay post-Jordan is well-established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:A. The New Framework Summarized
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [23] The standard of review is also uncontroversial. Although the application judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error, her characterization of periods of delay and the ultimate conclusion as to whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
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