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Charter - Section 11(b) - Trial Delay (3). R. v. R.B.-C.
In R. v. R.B.-C. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on a Charter 11(b) ['trial delay'] issue, where the specific issue was delay between conviction and sentencing:(2) General principles that apply to post-conviction delay
[49] In R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, this court held that the presumptive ceiling for trial delay set by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 does not include consideration of the time between conviction and sentencing. However, the court held that there is a separate presumptive ceiling of five months between the date of conviction and the date of sentencing. The court emphasized that “five months is not the norm, and should not be allowed to become the norm. Instead, 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)” (emphasis added): at para. 87.
[50] The court further explained, at paras. 74 and 90-91, that, even in complex cases, the trial judge has a responsibility to raise the issue with counsel and set dates that take the presumptive ceiling into account.
[51] On a post-conviction s. 11(b) application, the court is to follow the same framework as established in Jordan, at para. 105, for calculating whether the delay was unreasonable. First, the court is to calculate the total time between the date of conviction and the date of sentencing.[2] Second, the court is to subtract delay solely attributable to the defence, which results in the net delay: Jordan, at paras. 60-61; Charley, at para. 89. A net delay that exceeds the five-month ceiling is presumptively unreasonable: Charley, at para. 87. The Crown can rebut this presumption by showing that the delay was due to exceptional circumstances, which can arise from discrete events or from the particular complexity of the proceeding, but not from chronic institutional delay: Jordan, at paras. 68-76; Charley, at paras. 98-104.
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[60] The trial judge’s findings of fact on the s. 11(b) application are owed deference and are to be reviewed on a standard of palpable and overriding error. However, her characterization of the periods of delay and her ultimate decision as to whether there has been unreasonable delay are subject to review 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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[73] With all due respect to the trial judge, what occurred during submissions on February 25, 2022 cannot be described as an exceptional circumstance caused by the COVID-19 pandemic. It was not the pandemic that caused the delay, such as when courts shut down altogether in March 2020 and jury trials were not available until September 2021: see R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon). There are many cases in which delay caused by the pandemic was justifiably an exceptional circumstance: see e.g., Donnelly, at paras. 23-27; R. v. Long, 2023 ONCA 679, 431 C.C.C. (3d) 288; and R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, leave to appeal refused, [2024] S.C.C.A. No. 41. But not in this case.
[74] What occurred here were small delays on a hearing day due to technical challenges and other missteps. Following the trial judge’s reasoning, all delays caused by minor technical issues since the pandemic could be categorized as an exceptional circumstance. By February 2022, the courts had generally adapted to the pandemic by introducing options for virtual hearings. Technology is not perfect and participants’ use of technology is not perfect, but minor technical malfunctions and attendant delays are not what the Supreme Court meant by stating that delay caused by exceptional circumstances could justify an extension of time. On the contrary, this is precisely the type of institutional drift or delay that participants in the justice system should guard against: Jordan, at paras. 81, 112-17; see also R. v. Kirkopoulos, 2024 ONCA 596, at paras. 22, 45-53.
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(7) Appropriate remedy
[79] The appellant argues that the appropriate remedy for the breach of his right to be sentenced within a reasonable time under s. 11(b) of the Charter is a conditional discharge. I disagree. I would instead reduce the conditional sentence by four months.
[80] In Charley, the court found that the post-conviction delay did not amount to a s. 11(b) Charter breach. The court therefore did not have to address the appropriate remedy. The court nevertheless stated, at para. 114, that it was “arguable that the remedy for post-verdict delay should not affect the conviction”. The court left the issue of the appropriate remedy to be determined in a future case.
[81] In R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, this court found that the post-conviction delay was unreasonable. In that case, the court held that the appropriate remedy should target the sentence given the violent nature of the offence: at para. 114. The court further held that, to target the sentence, the remedy must “be based on and align with sentencing principles”: at para. 116. Having regard to the sentencing principles, the court reasoned that delay in sentencing that rises to the level of a s. 11(b) Charter breach should lead to enhanced mitigation: at para. 119. On that basis, the court reduced a 30-month custodial sentence by 5 months.
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