Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Donald Wu on Unsplash
🚦 Welcome to the start of a new season of Fantasy Courts! The site has a fresh look and new features.
This season will run until the end of the year. Our first decision to predict is R. v. R.B.-C. At issue is how the constitutional right to be tried within a reasonable time applies after an accused has already been found guilty but before sentence is imposed. More particularly, should there be a five-month presumptive ceiling for sentencing delay, and if that ceiling is breached, does the court have to stay the proceedings?
The Ontario Court of Appeal found unreasonable delay but reduced R.B.-C.’s sentence rather than staying the proceedings. R.B.-C. says that was not enough. The Crown says the Court of Appeal’s five-month ceiling should not apply in the first place. How do you think the SCC will rule?
🔮 Head over to Fantasy Courts to lock in your predictions, or scroll down for more details on this week’s case.
Case to Predict: Should Sentencing Have a Five-Month Delay Ceiling?
Appeal by leave from R. v. R.B.-C., 2024 ONCA 930
What Happened?
R.B.-C. was found guilty of sexual assault in October 2021. At the time, he was an Iranian citizen in Canada on a post-graduation work permit, which meant the sentence could have significant immigration consequences. The sentencing process stretched on for more than a year, with adjournments relating to the trial judge’s medical issues, questions about those immigration consequences and other scheduling issues.
Before he was sentenced, R.B.-C. applied for a stay under s. 11(b) of the Charter. The trial judge applied R. v. Charley, a 2019 Ontario Court of Appeal decision that set a five-month presumptive ceiling for the period between verdict and sentence. After deducting defence delay and what she considered exceptional circumstances, the trial judge found the remaining delay was below that ceiling. She dismissed the application and imposed a conditional sentence of two years less a day, followed by probation.
The Court of Appeal disagreed with parts of that calculation. It held that the immigration issues did not make the case “particularly complex” and that ordinary technical problems associated with a virtual hearing were not exceptional circumstances. That left 225 days — more than seven months — of remaining delay, exceeding the five-month ceiling. The Court found a s. 11(b) breach but, instead of granting a stay or discharge, reduced the conditional sentence to 20 months.
What Was Argued at the SCC?
Appellant: R.B.-C. argues the Court should adopt Charley’s five-month presumptive ceiling for post-verdict delay. He says Jordan replaced an uncertain, retrospective approach to delay with clear timelines and incentives, and those same principles should apply between verdict and sentence. He also argues that, once a post-verdict s. 11(b) breach is established, a stay of proceedings is the minimum remedy: the finding of guilt remains, but the court cannot continue to conviction and sentence after the constitutional time limit has been exceeded.
Respondent: The Crown argues there should be no fixed five-month ceiling. Instead, post-verdict delay should violate s. 11(b) only where the proceedings took “markedly longer than [they] reasonably should have” in all the circumstances, an approach it says better accommodates judicial deliberation, complex sentencing issues and the varied nature of post-verdict proceedings. On remedy, the Crown says a stay should be exceptional: after a finding of guilt, the presumption of innocence is gone and the public interest in imposing an appropriate sentence carries greater weight, making a sentence reduction the more suitable remedy in most cases.
What Else Should You Know Before Making a Prediction?
There are two separate issues, which make this case challenging to predict. First, the SCC could reject Ontario’s five-month Charley ceiling and adopt something closer to the Crown’s contextual “markedly longer” test. Ontario is something of an outlier. R.B.-C.’s own factum acknowledges that courts outside Ontario have generally declined to adopt Charley.
Second, even if the SCC agrees there was unreasonable delay, it could still uphold the Court of Appeal’s approach to remedy. That may be the tougher part of R.B.-C.’s appeal. His position that a stay is constitutionally required would substantially limit remedial flexibility whenever unreasonable delay occurs after guilt has already been determined.
I’m leaning towards appeal dismissed. My guess is the Court will be reluctant to hold that a stay is the minimum remedy for every post-verdict s. 11(b) breach. But this feels like a case where the Court may disagree with both sides in part and create its own framework.
SCCbot
This season, we’re continuing to ask the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. This week, the SCCbot predicts the appeal will be dismissed (with ~80% confidence). It expects the Court to confirm that s. 11(b) applies to post-verdict delay but to decline to adopt the Court of Appeal’s rigid five-month Charley ceiling, favouring a more flexible, K.G.K.-style contextual test — and to hold that a reduced sentence, not a stay of proceedings, is the ordinary remedy, with a stay reserved for the clearest of cases. On that view the appellant keeps his conviction and the resulting immigration consequences remain.
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–Tom Slade