The Appellant in this case, Mr. R.B.-C. (name subject to a publication ban) was found guilty of sexual assault, but was not sentenced until more than one year later, or approximately 28 months after he was charged. Because he is not a Canadian citizen, the Appellant remained in immigration “limbo” for the entire time, unsure if he would be deported.

The section 11(b) Charter right of an accused to be tried within a reasonable time applies equally to the sentencing portion after a verdict and conviction has been rendered, because trial refers to the entirety of the criminal process. While the Court of Appeal agreed that the right was violated, instead of imposing a stay of the sentencing proceedings, the Court of Appeal for Ontario reduced the Appellant’s sentence by four months.

BCCLA intervened to provide the court with a principled approach to determining the appropriate Charter remedy for when the state violates the defendant’s speedy trial right. A principled approach demonstrates that the minimum remedy under s. 24(1) of the Charter for post-verdict delay is to stay the sentencing proceeding itself—the very proceeding that, if continued, would be an ongoing violation of a person’s Charter rights. This is consistent with the Court’s jurisprudence on s. 11(b) and well as other s. 11 rights.

Importantly, a principled approach to remedying a post-verdict s. 11(b) breach does not result in the underlying conviction being stayed. Nor does it target the sentence itself. Rather, it focusses on the right that has been breached—the right to be sentenced within a reasonable time—and imposes a stay of the sentencing proceeding itself. The basic constitutional rule is that the court cannot sentence a person after a violation of their s.11(b) Charter right; otherwise, there would no responsive or effective remedy for the wrong. The remedy must put a stop to the ongoing Charter violation.