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Charter - s.11(b) Trial Delay - Post-Verdict Delay. 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".
The court considers the Charter s.24(1) remedy for post-verdict breaches of s.11(b) ['trial delay'], ending with a discretion-heavy (and less-than-firm) resolution:[63] In R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, this Court held that a stay of proceedings is the appropriate remedy for unreasonable delay occurring before conviction, because any lesser remedy would permit the trial to continue and thereby compound the breach of s. 11(b). That conclusion, however, was directed to pre-conviction delay, where the accused remains presumptively innocent and the proceedings leading to a determination of guilt are themselves tainted by unconstitutional delay. Rahey did not address the distinct remedial question that arises after a valid finding of guilt has been entered; indeed, this Court has more recently confirmed that it has taken “no position on the appropriate remedy for a breach of s. 11(b) that occurs after a conviction is entered, but before sentencing” (R. v. Varennes, 2025 SCC 22, at para. 82, fn. 3; see also Jordan, at para. 49, fn. 2).
[64] The appellant argues that only a stay of proceedings can remedy unreasonable post‑verdict sentencing delay. He submits that, once a breach of s. 11(b) is established, the court lacks jurisdiction to proceed further and the only remedy that can prevent additional s. 11(b) violations is a stay (or an absolute discharge, which would be functionally similar to a stay). The Crown submits that an automatic stay is not an appropriate or just remedy for unreasonable post‑verdict sentencing delay, highlighting that the s. 11(b) interests at stake after conviction are diluted, while society’s interest in the prompt imposition of a fit sentence is correspondingly heightened.
[65] I agree with the Crown. The default stay of proceedings remedy 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. 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. 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.
(1) The Balance of Interests Under Section 11(b) Is Qualitatively Different in the Post-Verdict Sentencing Phase
[66] The right to be tried within a reasonable time protected by s. 11(b) of the Charter balances two distinct sets of interests. For the subject of criminal proceedings, it safeguards their interest in liberty, security of the person, and the right to a fair trial by ensuring that the proceedings are resolved in a timely manner (Jordan, at para. 20). These interests are balanced against society’s expectation that criminal matters will be decided on their merits, which would be undermined by an overly strict interpretation of s. 11(b) (Morin, at p. 786).
[67] After conviction, however, the balancing of these interests is qualitatively different than before conviction. The focus shifts away from the interests of the individual subject to the proceedings and toward society’s interest in resolving criminal matters on their merits through the imposition of a fit and proportionate sentence.
[68] For the individual, they are no longer an accused person and their s. 11(b) interests become more narrowly defined (R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at p. 291). Although s. 11(b) continues to apply through sentencing, delay after conviction engages the right in a more attenuated manner than delay before verdict (MacDougall, at para. 67), reflecting that the presumption of innocence has fallen away.
[69] A convicted offender no longer possesses the liberty interests of an untried accused, whose freedom is constrained by unresolved allegations (Jones, at pp. 282-83 and 286-87). Delay in sentencing may impact the liberty of an offender by prolonging detention or release conditions (MacDougall, at para. 33). However, any such continuing restraint on liberty is tethered to an adjudicated finding of guilt rather than a mere allegation of criminal wrongdoing. The Criminal Code reflects this shift by altering the treatment of release orders once guilt is established (s. 523(1)(a)).
[70] The offender’s interest in security of the person is likewise recalibrated after conviction. Before conviction, undue delay threatens security of the person by prolonging the stress, anxiety, and stigma associated with a pending criminal accusation (Jordan, at para. 20; Rahey, at p. 605). This is especially true for the factually innocent (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1219). After guilt is determined, those sorts of harms do not disappear, but they are qualitatively different. Undue sentencing delay can cause the offender to live “in suspense, uncertain of his or her fate, unable to get on with his or her life”, and so face stress and anxiety (MacDougall, at para. 34). However, once the presumption of innocence has been extinguished, much of the uncertainty faced by the offender no longer stems from unresolved allegations, but from the fact of the offence and the adjudicated finding of guilt.
[71] The fair‑trial interest protected by s. 11(b) is also altered post‑verdict. Before trial, delay may compromise fairness by degrading evidence and impairing the accused’s ability to mount a defence (Jordan, at para. 20). It is true that evidence can remain important at sentencing, and delay may impede an offender’s ability to adduce it (MacDougall, at para. 35). However, once the trial has concluded, those concerns are largely diminished because the evidentiary record has been preserved (K.G.K., at para. 60). Sentencing proceedings are governed by different evidentiary principles, affording judges wide latitude to receive information relevant to crafting a fit sentence (Gardiner, at p. 414). Hence, while fairness remains an important consideration at sentencing, the bulk of trial‑fairness interests dissipate once guilt has been established (MacDougall, at para. 35).
[72] With regard to society’s interest in the proper disposition of criminal proceedings, they assume greater prominence post-conviction. As Gonthier J. explained in Jones, sentencing recalibrates “the fulcrum in the state‑individual balancing”: the focus shifts away from trial fairness toward the public interest in the imposition of an appropriate sanction (p. 288; see also pp. 286 and 292). This heightened societal interest is reflected in the Criminal Code itself, which identifies the protection of society through the imposition of just sanctions as the fundamental purpose of sentencing (s. 718; see also R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 33). To equate the protections available post-conviction with those that apply pre-trial “ignores a rather critical intervening fact: the accused has been found guilty of a crime” (Jones, at p. 286).
[73] In sum, the balance of interests under s. 11(b) is materially different once guilt has been established. The offender’s liberty, security, and fair-trial interests remain constitutionally protected, but they are attenuated in light of the adjudicated finding of guilt; at the same time, society’s interest in the timely imposition of a fit and proportionate sentence is heightened. That altered balance makes the automatic stay remedy described in Rahey unsuitable for unreasonable delay in the post-verdict sentencing phase.
(2) Section 24(1) of the Charter Confers Broad Remedial Discretion
[74] Section 24(1) of the Charter confers broad remedial discretion on courts of competent jurisdiction. As this Court has observed, it is “difficult to imagine language which could give the court a wider and less fettered discretion” in crafting remedies than s. 24(1) (Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965, per McIntyre J.). Accordingly, this Court has repeatedly emphasized that s. 24(1) must be interpreted generously and purposively, giving courts wide latitude to craft appropriate remedies (R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595; Mills). Its purpose is to provide remedies that are effective and meaningful, not only for individual claimants but for society as a whole. While that discretion is expansive, it is not unbounded: remedies must still be responsive to the nature of the breach and the interests affected (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 19).
[75] Once guilt has been established, society’s interest in the prompt imposition of a fit sentence is amplified, and the offender’s s. 11(b) interests, though still real, are lessened. The remedial inquiry must therefore be attentive to the altered posture of the case. What is required is a remedy that meaningfully responds to the Charter breach without losing sight of the fact that the finding of guilt itself was lawfully obtained and is not tainted by the delay.
[76] The remedy that will ordinarily be appropriate for unreasonable post-verdict sentencing delay is a reduced sentence. Unreasonable sentencing delay may prolong uncertainty, extend restrictions on liberty, and defer the commencement or completion of the sanction. A sentence‑based remedy responds directly to those harms and can, as nearly as possible, place the offender in the position they would have occupied had the sentencing process not taken markedly longer than it reasonably should have.
[77] Delay may, in some circumstances, be considered as a mitigating factor even in the absence of a Charter breach (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 53, citing R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.); R. v. Leaver (1996), 1996 CanLII 10223 (ON CA), 3 C.R. (5th) 138 (Ont. C.A.); R. v. Panousis, 2002 ABQB 1109, 329 A.R. 47). But where the sentencing process has become constitutionally unreasonable, the reduction is justified on a different footing (Nasogaluak, at para. 64). It is not part of the ordinary calibration of a fit sentence for the offence and the offender and it should not be seen as “enhanced” mitigation. It is a constitutional remedy under s. 24(1), directed to the breach itself. The reduction answers the legal wrong that has occurred: unreasonable delay in the sentencing process.
[78] However, s. 24(1) does not confine courts to sentence reductions alone. Courts possess a wide remedial discretion under s. 24(1) (Mills, at pp. 973-74, per La Forest J.). A stay of proceedings may be an “appropriate and just” remedy for post‑verdict sentencing delay although such relief will likely be “rare” and confined to “clear cases” (K.G.K., at para. 65, citing Jordan, at para. 48). However, s. 24(1) demands that this conclusion be reached after due consideration of all relevant factors and not simply presumed. A stay is the “ultimate remedy” and is reserved for the “clearest of cases” (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at paras. 86 and 110; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69). Consistently, the Court has required that a stay issue only where: (i) the abuse is manifested or aggravated through the trial; (ii) no alternative remedy is capable of redressing the prejudice; and (iii) in cases of uncertainty, the balance favours “denouncing misconduct and preserving the integrity of the justice system” over the competing societal interests in proceeding to a determination on the merits (R. v. Brunelle, 2024 SCC 3, at para. 29; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54 and 57; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32).
[79] The effect of a stay of proceedings differs fundamentally in the post‑verdict context. Before verdict, a stay halts the prosecution because the adjudication of guilt has been impacted by unreasonable delay. After conviction, however, the “proceedings” in issue are those directed to sentencing, not to the determination of guilt. A stay therefore operates prospectively, bringing the sentencing process to an end without disturbing a valid finding of guilt that was unaffected by the breach. This reflects the forward‑looking nature of the remedy: the law does not unwind completed and untainted proceedings, but halts what remains. To nullify a lawful conviction on the basis of post‑verdict delay would confer an unjustified windfall, contrary to s. 24(1)’s requirement that remedies be appropriate and just in the circumstances.
[80] While I have discussed reduction in sentence and a stay of proceedings as potential remedies, “[i]t is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre‑empt or cut down this wide discretion” (Mills, at p. 965, per McIntyre J.). Section 24(1) empowers courts to craft innovative, tailored relief, equipping judges with “a scalpel instead of an axe — a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system” (O’Connor, at para. 69). The breadth of remedial discretion persists after verdict. . 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 sets out a new doctrine for s.11(b) 'post-verdict' delay:B. A Separate Presumptive Ceiling for Post-Verdict Sentencing Delay Is Not Warranted
[31] The appellant submits that this Court should adopt the approach in Charley and impose a separate presumptive ceiling for post-verdict sentencing delay. The Crown responds that no such ceiling is warranted, and that sentencing delay should instead be assessed contextually by asking whether the proceedings took markedly longer than they reasonably should have in all of the circumstances.
[32] With respect, I would decline to follow Charley or impose a separate presumptive ceiling for post-verdict sentencing delay. The Jordan ceilings were adopted to respond to a specific, proven culture of complacency in bringing accused persons to trial; no comparable evidentiary foundation has been established for the sentencing phase of criminal proceedings. Sentencing is also a highly variable and information-dependent process: some matters may be resolved quickly, while others require reports, contested factual hearings, submissions on collateral consequences, or time for the sentencing judge to craft a fit and proportionate sentence. Given that variability, a fixed ceiling would risk treating unlike cases alike and could undermine the flexibility required by Parliament’s direction that sentencing occur “as soon as practicable” (Criminal Code, s. 720). At paras 33-43 the court explains and justifies this above position, and continues:C. The Test for Assessing the Reasonableness of Post-Verdict Sentencing Delay Is the “Markedly Longer” Test
[44] Sentencing proceedings are not shielded from constitutional scrutiny under s. 11(b) of the Charter. The guarantee of trial within a reasonable time extends to the imposition of sentence, and undue delay affects the offender’s liberty, security and fair-trial interests, defers finality for victims and others affected by the offence, and diminishes public confidence in the administration of justice. The issue for this Court is therefore not whether post-verdict sentencing delay may infringe s. 11(b), but the standard by which courts are to determine when such delay has become constitutionally unreasonable.
[45] Provincial trial or appellate courts have taken different approaches to what the appropriate test should be for whether post-verdict sentencing delay is unreasonable under s. 11(b). Alberta and Nova Scotia have adopted the “markedly longer” test (R. v. Fouani, 2025 ABCJ 2, 569 C.R.R. (2d) 232, at para. 67; R. v. Cape, 2025 ABCJ 129, at para. 120; R. v. S.P.P., 2024 NSSC 42, at para. 100). Manitoba and British Columbia have applied the MacDougall standard, which incorporates the Morin framework by requiring consideration of the length of delay, reasons for delay, any waiver by the accused and prejudice suffered by the accused (MacDougall, at para. 60; R. v. Clemons, 2018 MBQB 144, 421 C.R.R. (2d) 26, at paras. 38-42, aff’d 2020 MBCA 4; R. v. S.C.W., 2018 BCCA 346, 367 C.C.C. (3d) 518). Quebec has opted for a [translation] “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” (Lévesque Paquette v. R., 2022 QCCA 1047, at para. 63; see also Chemama v. R., 2024 QCCA 405, at para. 351).
[46] The Crown argues 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. In contrast, the appellant argues that the Crown’s proposed test is inappropriate because it replicates Morin’s unpredictability and imposes an unfair burden on the defence.
[47] In my view, the “markedly longer” test is the appropriate test for assessing the reasonableness of post-verdict sentencing delay. It is consistent with this Court’s existing s. 11(b) jurisprudence, including the standard applied below the Jordan ceilings and to verdict deliberation time in K.G.K., and it avoids introducing unnecessary complexity into the framework. It is also well suited to the sentencing context, which is individualized, information-dependent, and often iterative, while remaining sufficiently robust to identify delay that exceeds what was reasonably necessary in all of the circumstances. Finally, it reflects the different balance of interests after a valid finding of guilt: the offender’s s. 11(b) interests remain important but are attenuated, while society’s interest in the prompt imposition of a fit and proportionate sentence assumes heightened significance. At paras 48-61 the court explains and justifies this above position.
. 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.
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