This article is one of two articles on the complexity and nuances of s. 11(b). This article addresses the sentencing period and the conflicting case law law surrounding it. The other article (here) addresses the practical challenges associated with bringing an s. 11(b) motion.

It has been over two years since July 8, 2016 when the seminal judgement of R. v. Jordan was rendered – but we’re still feeling it’s effects ripple through the criminal law sphere. One of the most prominent of these ripples is the question of whether 11(b) protections set out by Jordan (18 and 30 months for summary and indictable offences respectively include the sentencing period. While Jordan did strike a deafening blow against the “culture of complacency” towards delay that has pervaded the criminal process, to the detriment of the public, complainants, and most of all the accused, it explicitly declined to answer this question.

The Supreme Court did not provide a conclusive answer, but it did write in a footnote:

“This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. 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, or whether additional time should be added to the ceiling in such cases” (at n. 2).

So, like most complex questions of law, the SCC went with the tried and true answer of “it depends” before declining to comment.

In R. v. Cody, the SCC brushed up against this question again and hinted that there is an onus on the justice system at all steps of the process to ensure the protection of s. 11(b) rights. The Court writes –

“[E]very actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time” (at para. 1).

Again, the Court fails to provide an answer as the question hasn’t been explicitly asked in appeal.

At this time there is not yet an Ontario appellate court decision that has held one way or another.

In R. v. Swanson, Thomas Swanson was found not guilty of three counts but guilty on the fourth count. After the conviction was entered and shortly before the date scheduled for sentencing the accused filed an application to have proceedings stayed based upon unreasonable delay sufficient to constitute a violation of ss. 11(b) and 24(1) of the Charter. Half the trial dates were pre-Jordan and half were after Jordan – so, Swanson is a transitional case which was judged under the Morin framework.

In this case, the Court applied Jordan’s presumptive 30-month limit to the sentencing phase of the trial but noted that “special post-conviction considerations may also be relevant” (at para. 18).

However, only seven days later, the Court in R. v. Eid, rejected a s. 11(b) application on the same basis. This case was also a transitional case and fell under both the “Discrete Event” and “Particularly Complex” branches of the “Exceptional Circumstances” exceptions provided for in Jordan. The case involved 36 days of trial, 22 witnesses and 100 exhibits. In addition to this, the Court interpreted Jordan (perhaps over-confidently) to mean that “[T]he 30-month ceiling ends at the end of the trial. It is pretty clear that [Jordan] means the date of decision” (para. 16).

In late June, 2018, the Ontario Superior Court turned its mind to this question in the case of R. v. Charley. Unlike Swanson and Eid, this case was not a transitional case and fell under the Jordan guidelines without the dated shackles of Morin. In making this decision, the Court noted that all the delays were post-Jordan and thus no one can claim reliance on the pre-existing state of the law. “Mr. Charley cannot be made to shoulder the failure to expedite the case once all parties were aware of the new s. 11(b) parameters” (at para 86)

Here, there was 17 months of post-judgement sentencing delay from January 27, 2017 to June 25, 2018. This period was elongated due to the Crown’s seeking an order under section 752.1(1) of the Criminal Code remanding Charley for the purposes of having a psychiatric assessment in support of its proposed application to have him declared a dangerous or long-term offender.

The Crown argued that a dangerous offender application is a unique deviation from the usual sentencing process, and that it can often take a very long period of time. They further argued that this elongation of the proceeding is not the fault of the prosecution but rather is inherent in the amount of information needed to be collected for a dangerous offender evaluation. Gonthier J. made a similar point on behalf of the SCC in R v Jones, [1994] 2 SCR 229 –

“As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender” (at para. 124).

The Court adds that while MacDougall makes it clear that sentencing delay is generally to be counted as part of the delay which can intrude on a person’s section 11(b) rights, a dangerous offender application does not necessarily so intrude. Support for this is found in R. v. Vincent at para. 68:

“Dangerous offender and long-term offender applications are the type of proceedings that obviously have a greater inherent time requirement by virtue of their seriousness, complexity, and voluminous materials.”

The Court held that to the extent that the delay in the proceedings is inherent to a dangerous offender application – and the threshold s. 752.1 application is inherent part of such an application – it should not be counted against the Crown. This reduces the delay from 17 to 16 months.

There follows discussion of two defence applications (a portion of which were described as “legitimate and necessary” but were dismissed) which took a total of 9 months. Of this time 4 months of delay was attributable to the Defence, 4 to the Crown (by responding slowly) and 1 to the Court itself. In discussing the Crown’s delay, the Court cites the SCC in R. v. Vassell, to find that that despite being engaged in complex proceedings, the Crown “[W]as required to remain vigilant that its decision not compromise the s. 11(b) rights of the accused persons.” This leaves 12 months of sentencing delay.

Subsequently, the Court turns to the time between the trial judgment on January 27, 2017 and the hearing of the first stage of the dangerous offender application on May 18, 2017. In examining the lengthy time between October 28, 2016 to sometime before May 18, 2017 (while the Crown gathered Charley’s records), the Court scolded the Crown stating that –

“Although the presumptive time frame for violating Mr. Charley’s s. 11(b) rights could already be seen on the horizon, the dangerous offender application moved along much as it would have done prior to Jordan” (at para. 69).

Of the 3.75 months between the trial judgment and the s. 752.1 hearing date, the Court would attributed 2 months to inherent delay and 1.75 months to delay attributable to the Crown. That means that 2 months are to be deducted from the 12 months of sentencing delay (17 months minus 1 month for the hearing of the Crown’s application and 4 months for the defence application). This leaves 10 months of sentencing delay.

The next period of analysis is the 3 months between the dismissal of the dangerous offender application on June 22, 2017 and the start of the defence Charter application on September 27, 2017. Two months of this are waived as the Crown was seeking a pre-sentence report and incorporating it into their sentencing submissions. However, this was one-year post-Jordan and Crowns has no excuse to be unaware of the jurisprudence at this time. In light of this, the third month was attributable to Crown delay. This leaves 8 months total of sentencing delay.

The net delay in this case was 32 months consisting of 24 months of pre-trial delay unattributable to the defence, and 8 months of sentencing delay which the Crown cannot justify as resulting from exceptional circumstances. This places it above the presumptive ceiling. This was combined with serious prejudice arising from restrictive bail conditions which prevented Charley from working and driving for almost three years.

Additionally, during the 17 months of the sentencing period, Charley was held at the Toronto South Detention Centre (TSDC) which consisted of restrictive “…living conditions, regimentation, inactivity, chronic lockdowns, invasive searches, lack of family visitation, and harsh punishments for petty rule violations that the TSDC officials themselves described during the course of the defence application in this case” (at para 84). This runs contrary to the principles of Jordan stated at paragraph 204, “[T]he right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions.”

Because of this, the charges against Charley were stayed.

S. 11(b) is rooted in the legal maxim that “justice delayed is justice denied” and is an important aspect of our system.

That said, until an appellate court (or ideally the SCC) addresses this issue, we’re going to be trapped in this “tennis match” of uncertainty. The ball with go back and forth with “yes it’s included” to “no it’s not” with each trial judge being forced to essentially flip a coin or go through jurisprudential gymnastics to use the cases of their choice to conclude they see as fit.

This breeds uncertainty within the law, confuses lawyers, and makes the public lose trust in the judicial system. While I understand that the Supreme Court cannot answer questions that are not explicitly before it, it seems equally as bad to drop hints or trials of breadcrumbs in footnotes or obiter for lower courts to try and guess what their intention was without explicitly deciding.

Hopefully either the Crown or defence will appeal one of these decisions and we will receive the benefit of a three-judge panel who will lay down some rules that we can all point to and rely on. Until this time, however, lawyers will just have to tell their clients that an 11(b) motion is an expensive pair of dice to roll and we can only hope for the best if their case turns on sentencing delays.