Ten years ago the Supreme Court of Canada established presumptive ceilings for unreasonable delay in bringing criminal cases to trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. But the question – How long is too long? – between conviction and sentencing has produced different answers in the provincial courts of Canada. In a recent ruling from the Supreme Court of Canada the debate in the lower courts has now been put to rest.

1. Introduction

Section 11(b) of the Charter guarantees that “[a]ny person charged with an offence has the right […] to be tried within a reasonable time”. The right spans from the initial laying of the charge to the final imposition of any sentence. In the landmark ruling of the Supreme Court of Canada in R. v. Jordan, presumptive ceilings were established that require trials to be concluded within 18 months in provincial courts and 30 months in superior courts. (here) But presumptive ceilings have not been established for delays at any other stage if a criminal proceeding. Until now.

2. Framing the Debate

On September 11, 2026, the Supreme Court of Canada released the opinion in R. v. R.B.-C. where the court determined how to assess the reasonableness of delay in the period between conviction and sentencing. (here) The appellant urged the court to adopt the approach taken by the Ontario Court of Appeal in R. v. Charley and impose a five-month ceiling over which delay would be presumed to violate s. 11(b). (here) The Crown argued the better approach was to ask whether the time taken to impose sentence was “markedly longer” than it reasonably should have been.

The question – How long is too long? – produced different answers from other provincial courts regarding the appropriate test. Alberta and Nova Scotia adopted the “markedly longer test”. (here and here) Manitoba and British Columbia applied the “MacDougall standard” which incorporates the framework in R. v. Morin by requiring consideration  of the length of delay, reasons for delay, waiver by the defendant and prejudice sustained by the defendant. (here and here) Quebec settled on a “flexible, modulated approach” that required a general and contextual analysis. (here)

Writing for the unanimous court, Justice Sheilah Martin held the “markedly longer” test is appropriate for assessing the reasonableness of post-verdict sentencing delay for three reasons. First, it is consistent with the court’s s. 11(b) jurisprudence including the standard applied below the Jordan ceilings and to verdict deliberation time. Second, it is well suited to the sentencing context which is individualized, information-dependent and often iterative. Third, it reflects the different balance of interests after a finding of guilt: the offender’s s. 11(b) interests remain important but are attenuated and society’s interest assumes heightened significance.

3. Judicial History 

In the Ontario Court of Justice, Judge N.E. Redgate held that the Jordan analysis applies to the assessment of post-verdict sentencing delay but that the presumptive ceilings established in that case did not apply. She found that the post-verdict sentencing delay was 116 days – just under four months – which fell below the five-month presumptive ceiling in Charley. She therefore dismissed the appellant’s s. 11(b) motion. The appellant was sentenced to a conditional sentence of two years less a day, followed by one year of probation, for sexual assault.

The Ontario Court of Appeal reversed. Writing for the court, Justice Lise Favreau allowed the sentence appeal finding that Justice Redgate made two errors in the s. 11(b) analysis. Based on a revised calculation of delay, the net post-verdict sentencing delay was increased to 225 days which exceeded the five-month Charley ceiling. Justice Favreau made two important findings in determining an appropriate remedy under s. 24(1) of the Charter. First, the remedy for post-verdict sentencing delay should be aimed at the sentence, not the conviction itself. Second, the unreasonable sentencing delay was treated as an enhanced mitigating factor which reduced the length of the conditional sentence order to 20 months.

4. The Takeaway

Justice Martin emphasized that, since Jordan, the court has consistently rejected invitations to extend the Jordan ceilings to other phases of the criminal process or to recalibrate them for particular types of proceedings “absent evidence of a real problem.” She emphasized this more than once. “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,” she said.

She later returned to the absence of a real problem. “[T]here is no cogent evidence of a culture of complacency towards delay in sentencing proceedings, either in Ontario or elsewhere in Canada,” she said. “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. I would therefore decline to follow Charley.”

Although the presumptive ceiling in Charley had the merit of “promoting certainty, discipline, and timely movement toward sentence” it did not sufficiently consider the rationale underpinning 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,” said Justice Martin.

On the issue of remedy, as I mentioned previously, the Ontario Court of Appeal held that a reduction of the conditional sentence of four months was appropriate and just. Although Justice Martin held that the Court of Appeal erred in applying Charley, “its remedial assessment reflected the extent of the unconstitutional post-verdict delay.” That conclusion was a “proper and proportionate” remedy.

5. Conclusion

Chris Rudnicki of the Toronto-based law firm Rudnicki & Company, who represented the Canadian Civil Liberties Association as intervenors on the appeal, told freelance journalist Dale Smith they were disappointed with the decision. In a piece by Mr. Smith titled Supreme Court says there’s no presumptive ceiling for sentencing delays published on September 11, 2026, by the CBA National Magazine, Mr. Rudnicki was concerned that the remedy of a sentence reduction is insufficient. “The whole logic of Jordan really depends on the bright line for unreasonable delays,” he said. (here)