In many criminal cases, particularly the more serious cases, sentencing will, of necessity, take time, sometimes a matter of months. Dangerous offender applications, situations in which expert reports are required or extensive evidence is tendered, for instance,  significantly lengthen the sentencing process.  

While the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay. Post-verdict delay, for the purposes of applying a presumptive ceiling, is to be assessed separately from pre-verdict delay and is subject to its own presumptive ceiling.

                R. v. Charley, 2019 ONCA 726.

The Court of Appeal for Ontario in R. v. Charley fixed that ceiling at five months. 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). The onus falls to the Crown to justify the delay.

Where a section 11(b) breach occurs prior to verdict, a stay of proceedings is the only available remedy. This is settled law. However, where section 11(b) has been breached post-verdict, the appropriate remedy remains an open question.

            Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

FN: Several appellate courts in addition to the ONCA have held that the presumptive ceilings in Jordan run from the laying of the charge to the verdict or anticipated date of the verdict and not to the date of sentence: see S. C.W., 2018 BCCA 346 at para 34; R. v. Rode, 2019 SKCA 17 (CanLII), leave to appeal refused, [2019] S.C.C.A. No. 112; R. v. Le compte, 2018 NBCA 33 (CanLII); R. v. Rice, 2018 QCCA 198 (CanLII).