R. v. Poulin, 2019 SCC 47

SECTION 11(I) - CHARTER - STATUTORY INTERPRETATION - “LESSER” PUNISHMENTS

MAJORITY - Martin J

Background

Section 11(i) of the Charter grants a person found guilty of an offence the right to the benefit of the lesser punishment, if the punishment for the offence has been varied between the time of commission and the time of sentencing.

In 2016, Poulin was found guilty of sexual offences and gross indecency committed between 1979 and 1987. At sentencing, the accused was 82 years old and suffering from many health issues. The sentencing judge sentenced Poulin to a conditional sentence of 2 years less a day to his health problems (rather than serving sentence in prison).

Conditional sentences did not exist when Poulin committed the offences. (Note: conditional sentences became an available form of sentencing in 1996). Similarly, in 2017, conditional sentences were no longer applicable to sexual offences when Poulin was sentenced (by virtue of s. 742.1(b) of the Criminal Code). Conditional sentences, however, were available/applicable for a discrete period between these two dates.

The Crown appealed. The Court of Appeal dismissed the appeal on the ground that s. 11(i) conferred a global right to the benefit of lesser punishment.

Note: Shortly before the hearing of this appeal, Mr. Poulin passed away. Although the appeal had become factually moot, the SCC exercised its discretion pursuant the factors in R v Smith, 2004 SCC 14, to continue with the appeal (see paragraphs 16-27).

Issue on Appeal: Does s. 11(i) of the Charter constitutionalize a binary or a global right?

What you Need to Know

Section 11(i) confers a binary right (not a global one). An offender is entitled to the lesser of punishments between (1) punishment under laws in force when offender committed the offence, and (2) the punishment under the laws in force when the offender is sentenced. 

Whether an offender is entitled to the benefit of lesser punishment on which they relied in conducting their defence or taking a plea is left to another case.

How the SCC Got There

Poulin argues that s. 11(i) confers a global right between any lesser punishment available in the time frame between the commission of the offence and the time of sentencing. The Crown argues that s. 11(i) confers a binary right between the lesser of two punishments (time of commission and time of sentence). 

Practical Considerations

Global Right Approach

Under a global right regime, courts would need to:

(1) identify ALL potential punishments available during the timeframe between the offence and sentence, regardless of how long this time frame is;

(2) determine which of these measures constitute a “punishment” under sections 11 and 12 of the Charter. 

What constitutes “punishment” under s. 11(i) has taken broad meaning: pre-sentence custody, driving prohibition orders, weapons prohibition orders, and timing of eligibility of parole have all been deemed to fall within the purview of s. 11(i). On the other hand, DNA orders, SOIRA orders, and provincial driving suspensions have not. (See R v KRJ, 2016 SCC 31).

(3) compare these punishments to identify which constitutes the “lesser” punishment.

This may be simple when comparing two periods of incarceration (i.e. the shorter period of incarceration constitutes the “lesser” punishment). This analysis, however, becomes muddied when comparing two competing sentencing regimes (i.e. long term offender regime at time of offence versus long term offender regime at sentencing. See R v Johnson, 2003 SCC 46).

(4) determine which punishment(s) must be imposed to honour s. 11(i).

For example, certain forms of sentencing have built-in prerequisites and criteria. If a conditional sentence was deemed to be the lesser punishment - the judge would then need to determine whether the accused met these requisites.

Under the global right approach, the courts would be required to consider any and all historical punishments (in the relevant timeframe) even though they bear no temporal relationship to the particular offender’s proceedings. 

Binary Right Approach

Whereas under a binary right approach, s. 11(i) would only require the courts to assess (1) identify available measures, (2) determine which measures constitute a punishment, and (23) which of these punishments is the lesser for the two relevant points in time. 

Statutory Interpretation

Interpretation of a Charter right must be a purposive analysis; Charter rights must be interpreted in light of the purpose(s) driving the right. The underlying purposes of s. 11(i) are the rule of law and fairness. The principle that a provision bearing more than one meaning be read in a manner that favours the accused is NOT a principle of Charter interpretation (it applies to penal statutory interpretation). A liberal and purposive interpretation of the Charter does not confer the accused the right to the most generous interpretation. 

Section 11(i) codifies the common law rule that an offender should not be retroactively be subjected to a heavier punishment than the one applicable at the time the person committed the offence. Additionally, s. 11(i) provides that the offender be afforded the more favourable punishment available at sentencing (i.e. if punishment available at sentence is more favourable than punishment available at commission of offence, the offender is entitled to this benefit). This additional protection is grounded in fairness: sentencing should reflect society’s view as to what is appropriate. So, it is only fair for offender to have the benefit of society’s current view of the offender’s conduct.

Turning to the language in s. 11(i), the majority finds that the term “lesser” (rather than least, or lowest) connotes the choice between two options (rather than multiple). The historical origins of s. 11(i) further support that s. 11(i) confers a binary, rather than global, right. Moreover, adopting a global right approach would in effect resurrect punishments that Parliament has expressly rejected (by repealing or amending them). As outlined above, recognizing a global right would also have negative practical consequences by requiring the court to identify and compare every sentencing provision that applied in the time frame, rather than just two. While previous jurisprudence has assumed that s. 11(i) confers a global right, the SCC finds that none of these cases engaged in a purposive analysis of s. 11(i). Had they done so they would have come to the conclusion that s. 11(i) confers a binary right.

DISSENT - Karakatsanis J

Mootness Issue

The dissent disagrees that this case ought to have proceeded despite its factual mootness. Karakatsanis J finds that this case is one of the overwhelming majority of cases where proceeding with the appeal following the death of the offender would not be in the interests of justice. The dissent finds that the unanimous line of jurisprudence was owed appellate deference. Additionally, while statutory interpretation is always of significance there are no special circumstances in this case that transcend the death of Poulin. The lack of uncertainty in this area of the law seriously undermines the need to proceed with the appeal. Lastly, the fact that the family opposed proceeding with the appeal is an important consideration that favours abandoning the appeal.

Based on all these factors, the dissent concludes that the Crown’s motion to proceed with the appeal ought to have been dismissed.

Statutory Interpretation Issue

For 30 years, courts across the country have unanimously and consistently held that s. 11(i) confers a global right. These cases are sufficiently supported by the wording of s. 11(i) which suggest a continuum between the time of commission and the time of sentencing. The dissent disagrees that the word “lesser” requires a binary. The french wording (la peine la moins sévère) is not limited to binary options. If the legislature had intended a binary meaning they could have used wording to do so. Limiting the “benefit of lesser punishments” to two specific points in time creates artificial distinctions in sentencing. The dissent disagrees with the majority’s point that a global right will be practically unfeasible for courts. There is no evidence that problems have arisen from how the courts have applied s. 11(i) for the last 30 years.