Our readers will be aware that, in 2016, the Supreme Court of Canada (the “SCC”) set time limits for how long prosecutions in Canada should take. That was in R. v. Jordan. Generally speaking, in occupational health and safety prosecutions, a trial must finish within 18 months of the charges being laid. If that doesn’t happen, the charges can be stayed. In this way, Jordan addressed the time between charges being laid and the delivery of a verdict. However, some question remained about delay in the time between conviction and the imposition of sentence. The SCC has now clarified the law applicable to delay in this period too. On September 11, 2026, the SCC released its decision in R. v. R.B.-C. which held that, unlike the time before a verdict, no presumptive ceiling or specific time limit applies. Rather, the delay becomes too much when the time taken to impose sentence was markedly longer than it reasonably should have been in all the circumstances (the “Markedly Longer Test”). This decision, like other caselaw about delay in prosecutions, will apply to parties convicted of regulatory offences, including those under occupational health and safety (“OHS”) legislation. For that reason, it is worth knowing about.
What Kinds of Cases are Affected?
Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) provides a party charged with an offence the right to be tried within a reasonable time. As such, those charged with offences under OHS and other regulatory legislation are entitled to this protection. However, it will not apply to administrative penalties or to other OHS matters that are not prosecutions.
Sentencing Delay Generally
By not imposing a time limit or presumptive ceiling for delay in sentencing proceedings, the SCC rejected the approach of the Ontario Court of Appeal, which had set a five month limit for sentencing delay. As noted above, the SCC held that the appropriate test to be used in determining section 11(b) violations for post-verdict delay is the Markedly Longer Test. This is the same test used to evaluate delay claims when trial delay falls below the presumptive ceiling and delay resulting from verdict deliberation following trial. The SCC concluded that applying the same standard to post-verdict sentencing delay promotes coherence and continuity within the existing legal framework and avoids creating a patchwork of stage-specific tests.
Further, in rejecting a presumptive ceiling for sentencing delay, the SCC noted an important systemic difference between trial delay and sentencing delay. The SCC recognized that the Jordan ceilings were adopted in response to a “specific, proven culture of complacency in bringing accused persons for trial” but no comparable evidentiary foundation had been established for the sentencing phase.
Additionally, the SCC considered that sentencing is a case-specific, highly-variable, and information-dependent process with the ultimate goal of enabling the trial court to craft a fit and proportionate sentence. A range of features may legitimately extend the time required to conclude sentencing proceedings. In light of this variability, a fixed ceiling would risk treating unlike cases alike and could undermine the flexibility required to achieve an appropriate sentence.
The Markedly Longer Test Explained
Practically speaking, how will the Markedly Longer Test be applied? The test will consider a range of circumstances. The inquiry will be particular to each case but a non-exhaustive list of factors that may be considered includes:
(1) Length of Delay: In exceptional cases, the sheer length of sentencing delay may be “so plainly excessive” that it violates the defendant’s Charter right. However, according to the SCC, it is “extremely unlikely” that elapsed time, by itself, will satisfy the Markedly Longer Test.
(2) Complexity of the Case: Complexity of the case is an important consideration, as post-verdict delay will vary based on a case’s complexity. Relevant factors may include: the amount and nature of evidence adduced, the number of co-defendants, the legal issues raised, consideration of reports (e.g. pre-sentence reports and the like, which will be rare in OHS cases), the need to adjudicate contested facts, consideration of victim and community impact statements, as well as associated proceedings (which will also be rare in OHS cases).
(3) Reasons for Periods of Delay: In any delay analysis the reasons for the delay will be examined. For the Markedly Longer Test, this could include a lack of court resources, a change in counsel, the actions of the defendant and the Crown, medical emergencies, and, where applicable, delayed reports (for which there should be clearly-articulated reasons for the delay).
(4) The Parties’ Positions and Conduct: This factor will consider whether the parties raised legal issues early and addressed them efficiently, or if issues are raised late or dealt with in a way that unnecessarily extends the proceedings.
(5) Comparability to Cases in the Context of Local Circumstances: The court might compare the delay against the time taken in comparable cases to reach a decision in light of relevant local circumstances. For instance, a reasonable amount of time may differ between a remote fly-in court and an urban courthouse because of the logistical and institutional realities of each setting.
What Happens if Sentencing Takes Too Long?
The SCC concluded that, in most cases, the appropriate remedy for unreasonable post-verdict delay is a reduction of the sentence. The SCC noted the wide discretion courts have in providing remedies for Charter violations and did not rule out the possibility of a stay of proceedings being granted. However, citing long-standing caselaw, the SCC noted that a stay is a remedy of last resort that is only to be provided in the clearest of cases. A stay of proceedings for sentencing delay is likely to be exceptionally rare. Additionally, the SCC made clear that remedies can be broader than a binary choice between a reduction in sentence and a stay of proceedings. Though no examples of other remedies were cited, the SCC noted that the breadth of remedial discretion, arising from Charter violations, remains after the verdict. Courts could, therefore, provide unique remedies for a specific case.
Takeaways for Employers
Prosecutions under OHS and other regulatory legislation are subject to the Charter. If convicted of an offence, there may be remedies available if the sentencing process takes markedly longer than it should. While the precise nature and quality of the remedy will be based on the circumstances noted above, defendants convicted of such offences should take steps to ensure their actions do not contribute to delay so that, if meaningful sentencing delay occurs, the defendant will be well-positioned to get the most significant remedy possible.
