ROBSON: Court delays should never mean lighter sentences for sex offenders

Canada’s highest court has confirmed a troubling principle: when the justice system takes too long to sentence a convicted offender, part of the remedy can be a shorter sentence. In a sexual-assault case decided on September 11, the Supreme Court of Canada unanimously upheld the reduction of a conditional sentence from two years less a day to 20 months because of unreasonable delay after conviction.R.B.-C. was convicted of sexual assault in October 2021, but sentencing was not completed until December 2022. The trial judge imposed a conditional sentence of two years less a day followed by one year of probation. The Ontario Court of Appeal later found that the post-verdict delay violated section 11(b) of the Charter and cut four months from the sentence, a remedy the Supreme Court has now left in place while rejecting Ontario’s previous fixed five-month ceiling for post-verdict sentencing delays.The result is difficult to defend because the delay did not change anything about the crime or the offender’s responsibility for it. The sexual assault did not become less serious because the court process moved too slowly, the harm to the victim did not diminish with the passage of those additional months, and the offender did not become less responsible for what he had done. The institution failed, yet the sentence imposed for the offence became the currency used to pay for that failure.That approach cuts directly across the principles Canada claims should govern sentencing. Section 718 of the Criminal Code identifies denunciation, deterrence, protection of society, and promoting responsibility among the objectives of sentencing, while section 718.1 makes proportionality to the gravity of the offence and the offender’s degree of responsibility the fundamental principle. A proportionate sentence should not become less proportionate because the court system failed to complete its work on time..The contradiction is even sharper after Parliament passed the Protecting Victims Act this summer. Ottawa presented the reforms as a major strengthening of victims’ rights and explicitly recognized that delays in the criminal justice system harm victims, undermine confidence in justice, and require greater attention to timely resolution. Most of the reforms came into force on July 18, less than two months before the Supreme Court upheld a remedy that reduced the punishment imposed on a convicted sexual offender because of delay.Canada cannot credibly declare that court delays harm victims while allowing those same delays to produce a measurable sentencing benefit for the offender. A victim who has already endured a prolonged criminal process should not reach the end of that process only to discover that the justice system’s failure to move efficiently has also reduced the sentence imposed for the crime.The warning signs about this imbalance were already visible. As Western Standard reported in April, Ontario Superior Court Justice Antonio Skarica said the justice system had reached a critical point in determining how to balance the interests of victims and offenders. The R.B.-C. ruling provides a particularly stark example of what happens when that balance moves in the wrong direction, because a failure created by the justice system ultimately reduced the sanction borne by the convicted offender..Unreasonable post-conviction delay should carry consequences, but those consequences should be directed at the institution responsible for producing it. Courts and governments should be required to identify excessive delays, correct the administrative failures behind them, and ensure that sentencing hearings receive the priority needed to prevent repetition. Parliament should also establish a clearer framework for remedies after conviction so that institutional delay cannot routinely be converted into a reduction of an otherwise proportionate sentence.Using sentence reductions as compensation for judicial delay creates precisely the wrong outcome. It gives the offender something tangible for a failure he did not suffer alone, while the victim receives the same delay, the same damage caused by the crime, and a diminished sentence at the end of the process.Canada has spent months promising tougher consequences for serious offences and stronger recognition of victims within the justice system. Those commitments lose meaning when the system responds to its own failure by discounting the sentence of a convicted sexual offender, because judicial delay should be a problem for the justice system to answer for, not a benefit deducted from the punishment imposed for the crime.

ROBSON: Court delays should never mean lighter sentences for sex offenders

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