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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Legal rights - On being charged with an offence - To benefit of lesser punishment

Friday, October 11, 2019 @ 2:44 PM  

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Appeal from a judgment of the Quebec Court of Appeal affirming the decision sentencing Poulin to a conditional sentence of two years less a day on charges of gross indecency committed between 1979 and 1983. A conditional sentence could not have been imposed at the time Poulin committed the offences, as it only became available as a form of sentence in 1996. The parties agreed that by the time Poulin was charged and convicted, legislative changes had made conditional sentences statutorily unavailable for sexual offences, and thus it did not apply to the offences Poulin was charged with. In imposing a conditional sentence, the trial judge concluded that s. 11(i) of the Charter entitled Poulin to the benefit of the lesser punishment that existed during the interval between the commission of the offences and the time of sentencing. The Court of Appeal dismissed the Crown’s appeal against that conclusion, considering that s. 11(i) conferred a global right to any lesser punishment that existed between the time of offence and its sentencing. The Crown was granted leave to appeal to the Supreme Court. Poulin passed away shortly before hearing of the appeal, which proceeded nonetheless, accompanied by a Crown motion for adjudication of the matter even though it had become factually moot. The issues before the Court were therefore (i) whether to exercise its discretion to hear the moot appeal, and (2) whether s. 11(i) established a binary or global right.

HELD: Appeal allowed. The factors for determining whether there were exceptional circumstances warranting the adjudication of an appeal rendered moot by the accused’s death militated toward granting the Crown’s application on this issue. The appeal raised an important constitutional question that had not yet received comprehensive treatment in the jurisprudence. The proper interpretation of s. 11(i) was a legal issue of general public importance which transcended Poulin’s death, and the Crown as well as the public, had a strong interest in seeing the question resolved. The Crown argued that s. 11(i) conferred a binary right entitling the offender to the lesser of punishments available under the laws in force at two key points in time: commission of the offence and sentencing. Counsel for Poulin argued that it conferred a global right, entitling the offender to receive the least onerous punishment that had existed for the offence since it was committed. A proper determination of whether s. 11(i) conferred a binary or global right required a purposive examination of the rights sought to be protected by the provision. The underlying purposes of s. 11(i) were the rule of law and fairness. The Court agreed with the Crown’s position that the use of the word “lesser” in s. 11(i) evoked the comparison of two options. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11(i) used the binary language “the lesser punishment”. There was no principled basis to grant an offender the benefit of a punishment which had no connection to his offending conduct or to society’s view of his conduct at the time the court was called upon to pass sentence. The principle of parity had never guaranteed similar offenders equivalent sentences across different sentencing regimes. The fact that offenders under different sentencing regimes could be subject to more or less lenient punishments was not arbitrary, but rather justified by society’s changed sense of the gravity of the offence over time. It could be rationally explained. While a binary approach to s. 11(i) would not ensure that like offenders received the same result, it would ensure that like offenders were treated fairly; they each received protections which were connected to them and their proceedings. A global approach to s. 11(i) would disproportionately benefit those who were sentenced years, or even decades, after their offences, such as Poulin. As this Court had observed, sexual offences often went long unreported. In addition, a global s. 11(i) right would have the effect of resurrecting punishments which Parliament had, by repealing or amending them, expressly rejected. Section 11(i) should be interpreted as conferring a binary right, not a global one. The trial judge therefore erred in ordering a conditional sentence. As Poulin was deceased, it was not necessary to determine a new sentence.

R. v. Poulin, [2019] S.C.J. No. 47, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and S.L. Martin JJ., October 11, 2019. TLD-October72019014-SCC