10.2 Charter Timing Motions & Sentencing Principles

Clients ask paralegals two blunt questions about a stalled prosecution: "Can this get thrown out for taking too long?" and "What am I actually facing if I'm convicted?" Both questions sit on well-defined legal frameworks that the P1 exam tests explicitly: the Charter s. 11(b) right to trial within a reasonable time, and the purpose and principles of sentencing codified in Part XXIII of the Criminal Code.

Section 11(b): The Right to Trial Within a Reasonable Time

Charter s. 11(b) guarantees that any person charged with an offence has the right "to be tried within a reasonable time." This right is not limited to Criminal Code prosecutions — it applies equally to POA and other regulatory prosecutions, including those against corporate defendants (confirmed for regulatory offences in R v CIP Inc), because s. 11 attaches to "any person charged with an offence," not just true crimes.

R v Jordan (2016 SCC 27) replaced the older, more discretionary Morin guidelines with a structured, four-step framework built around fixed presumptive ceilings:

1. Calculate total delay — from the day the charge is laid to the actual or anticipated end of trial.
2. Subtract defence delay — time that is caused by, or waived by, the defence does not count against the Crown.
3. Compare the net delay to the presumptive ceiling.
4. Apply the result.

If net delay exceeds the ceiling, the delay is presumed unreasonable, and the burden shifts to the Crown to rebut that presumption by pointing to exceptional circumstances — either a discrete, unforeseeable event (such as a medical emergency) or a case of genuinely exceptional complexity. If the Crown cannot rebut the presumption, the remedy under Charter s. 24(1) is a stay of proceedings, ending the case outright. If net delay is below the ceiling, the defence can still argue unreasonableness, but it must show both that the delay is markedly longer than reasonable and that the defence took meaningful, sustained steps to move the case along — a much harder showing to make.

Exam tip: Jordan deliberately removed prejudice-to-the-accused and offence seriousness from the core calculation. Once the ceiling is crossed, the analysis is almost entirely about the cause of the delay, not its effect on the accused.

Bringing a Timing Motion

A s. 11(b) application is typically brought as a pre-trial Charter motion supported by a complete timeline: every appearance date, the reason given for each adjournment, and who caused it (Crown, defence, or the institution itself — such as court scheduling capacity, which still counts toward the ceiling even though no one is "at fault"). Paralegals working POA files should track this timeline from the very first appearance, since regulatory prosecutions with heavy institutional backlogs are a common source of Jordan applications.

Purpose and Principles of Sentencing (Criminal Code Part XXIII)

Once guilt is established, sentencing is governed by ss. 718–718.2 of the Criminal Code.

Section 718 — the purpose of sentencing is to protect society and contribute to respect for the law through sanctions that pursue one or more of six objectives:

1. Denounce unlawful conduct.
2. Deter the offender and others from committing offences.
3. Separate offenders from society where necessary.
4. Assist in rehabilitating offenders.
5. Provide reparations for harm done to victims or the community.
6. Promote a sense of responsibility in offenders and acknowledgment of the harm done.

Section 718.1 — the fundamental principle is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every other sentencing principle operates within this ceiling.

Section 718.2 — other principles direct the sentencing judge to also apply:

• Parity — similar offenders committing similar offences in similar circumstances should receive similar sentences.
• Totality — where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
• Restraint — an offender should not be deprived of liberty if a less restrictive sanction is appropriate in the circumstances, with particular attention paid to the circumstances of Indigenous offenders (s. 718.2(e), reflecting the Gladue line of cases).
• Aggravating and mitigating factors, including statutorily listed aggravating factors such as bias, prejudice, or hate motivation; abuse of a spouse, partner, or child; abuse of a position of trust or authority; and offences connected to organized crime or terrorism.

Sentencing Under the POA — a Narrower Toolkit

POA sentencing is deliberately lighter-touch than Criminal Code sentencing. Part I convictions are resolved by payment of the set fine attached to the offence. Part III convictions, reached after a full trial, can carry larger fines, a probation order under POA s. 72, and — only where the underlying provincial statute expressly authorizes it — imprisonment. As Section 10.4 explains, imprisonment can never attach to an absolute liability offence without violating Charter s. 7, so any POA offence carrying jail time must, at minimum, allow a due diligence defence. A victim fine surcharge is also added to most POA fines, similar in concept to the Criminal Code's victim surcharge regime.

Key Takeaways

• Charter s. 11(b) protects the right to trial within a reasonable time and applies to both criminal and regulatory prosecutions.
• R v Jordan sets presumptive ceilings of 18 months (provincial court) and 30 months (superior court, or provincial court after a preliminary inquiry), measured from charge to the end of trial minus defence delay.
• Exceeding the ceiling presumes unreasonable delay; the Crown must show exceptional circumstances or the charge is stayed under s. 24(1).
• Sentencing's fundamental principle is proportionality (s. 718.1); s. 718 lists six purposes, and s. 718.2 adds parity, totality, restraint, and Indigenous-specific considerations.
• POA sentencing relies mainly on set fines and probation; imprisonment requires express statutory authority and cannot attach to a purely absolute liability offence.