Criminal Law: Sentencing; Mootness

R. v. Poulin, 2019 SCC 47 (37994)

“P was found guilty in 2016 of historical sexual offences committed between 1979 and 1987 when the complainant was 7 to 15 years old and P was 44 to 51 years old. The sentencing judge sentenced P to a conditional sentence of two years less a day for two counts of gross indecency. A conditional sentence could not be imposed as a punishment when P committed his acts of gross indecency — it only became available as a form of sentence in 1996. Furthermore, the parties agreed that it was no longer applicable to the offence of gross indecency, according to the provisions in force, by the time P was charged, convicted and sentenced. In imposing a conditional sentence on P, the judge considered that s. 11(i) of the Charter  entitled P to the benefit of a lesser sentence that was available in the interval between the commission of the offences and P’s sentencing. The Court of Appeal dismissed the Crown’s appeal, holding that s. 11(i) gave P the right to a conditional sentence. Shortly before the hearing of the Crown’s appeal before the Court, P passed away. The appeal proceeded nonetheless, accompanied by a Crown motion for the Court to adjudicate the appeal even though it had become factually moot.”

The S.C.C. (4:3) allowed both the motion to proceed with the appeal and the appeal.

Justice Martin wrote as follows (at paras. 2-6, 114-117, 121):

“This appeal … asks to what an offender is entitled under s. 11(i) of the Charter . Based on the nature and purposes of this particular constitutional right, which punishments are to be considered when determining the “lesser” one to which the accused is entitled? Does s. 11(i) confer:

  • a “binary” right — which involves a comparison of the punishments under the laws in force at two set points in time (commission of the offence and sentencing) and the right to receive the lesser of these punishments; or
  • a “global” right — which involves a review of all punishments that have existed for the offence between its commission and sentencing, and the right to receive the least severe punishment in that entire span of time?

… s. 11(i) confers a binary right, not a global one. Section 11(i) entitles an offender to the lesser of (1) the punishment under the laws in force when the offender committed the offence, and (2) the punishment under the laws in force when the offender is sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk the offender took by offending. That punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment that society considers just at the precise moment the court is called upon to pass a sentence. It provides the contours for a sentence that reflects society’s most up-to-date view of the gravity of the offence and the degree of responsibility of the offender. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to have the constitutional right to receive the lesser of the punishments at these two points in time.

By contrast, there is no principled basis for offenders to enjoy the automatic constitutional right to a previous punishment which is lower than both the one to which they exposed themselves when they committed the offence and the one that reflects society’s current sense of the gravity of the offence and the responsibility of the offenders. Reading s. 11(i) in a manner that would grant an offender the right to the most lenient punishment that existed for the offence at any point between its commission and sentencing would both exceed and distort the purposes of s. 11(i). As I will explain, these purposes are the rule of law and fairness. Far from supporting a global reading of s. 11(i), these purposes strongly militate towards reading s. 11(i) in a manner that sets the applicable punishment at the time of the offence as the ceiling, and entitles the offender to a more clement punishment under the laws in force at the time of sentencing, if one exists.

… s. 11(i) does not resurrect any temporary reductions in punishment which came after the offence and which bear no connection whatsoever to the offender’s conduct or to contemporary sentencing standards. By granting the offender specific retrospective access to the applicable punishment at the time of the offence, s. 11(i) need not and does not open the door to the lowest identifiable punishment that has ever applied to the offence since the offender committed it. Section 11(i) did not constitutionalize the right to past punishments that Parliament has since discarded or amended. The legal rights reflected in our Charter  represent the core tenets of fairness in our criminal justice system. The right to comb the past for the most favourable punishment does not belong among these rights.

…Mr. Poulin was not eligible for the conditional sentence imposed on him as it was not applicable to his offences under the sentencing provisions in force either at the time of commission or, according to the parties, of his sentencing. However, given Mr. Poulin’s recent death, I decline to pass a different sentence or remit the matter for sentencing.

I … leave for another, more suitable, case the question of whether an offender has any legal entitlement to the benefit of a lesser punishment on which the offender actually relied. The rule of law and fairness considerations of such a case may give rise to a right and remedy under this, or another, section of the Charter.

In leaving this question for another case, I am aware that, in K.R.J., a majority of the Court made the following statement:

  • Relatedly, retrospective laws implicate fairness. “It is unfair to establish rules, invite people to rely on them, then change them in mid-stream, especially if the change results in negative consequences” (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 754). For example, an accused who declines to consider a plea and is prepared to take the risk of going to trial should not be subsequently ambushed by an increase in the minimum or maximum penalty for the offence. A retrospective law such as this could not only cause unfairness in specific cases, but could also undermine public confidence in the criminal justice system. Instead, fairness in criminal punishment requires rules that are clear and certain. . . . [Emphasis added; para. 25]

I do not take this statement to have said anything conclusive about the binary/global debate, or about whether offenders are entitled to the benefit of punishments on which they relied. This is for two reasons. First, K.R.J. was not contemplating intermediary punishments under the laws in force in the interval between the offence and sentencing. The Court was merely comparing consecutive sentencing provisions (see paras. 9-11). The Court in K.R.J. was therefore not addressing the binary/global debate, or the question of reliance. Second, and most tellingly, the Court made this statement in the context of explaining why s. 11(i) entitles offenders to the lower punishment applicable when they committed their offence. The statement envisages the situation in which the punishment remains the same from the time of the offence through to the time of the offender’s plea, but increases thereafter. As such, the statement does not speak to changes in punishment between the time of commission and sentencing, and whether offenders ought to have access to any of these.

A purposive analysis of s. 11(i) leads me to conclude that it confers a binary right, not a global one. In particular, I find that the language and origins of s. 11(i) both confirm the purposes set out in K.R.J. — namely the rule of law and fairness — and indicate that s. 11(i) is intended to confer a binary right consistent with these purposes.  It would not respect the purposes of s. 11(i) to read the right globally. Nor would it respect Parliament’s role in adapting sentencing provisions, or the courts’ role in crafting proportionate sentences under those provisions. While s. 11(i) embraces a degree of retrospectivity (in allowing the lesser current punishment to replace the harsher punishment at the time of the offence), this principled, purposive retrospectivity does not support an interpretation of s. 11(i) that embraces retrospectivity writ large.

An offender is not entitled to the benefit of a temporary reduction in punishment which occurred in the interval between the time of commission and the time of sentencing. Both the sentencing judge and the Court of Appeal erred in sentencing Mr. Poulin to a punishment applicable under the laws in force only in that interval and upon which Mr. Poulin placed no reliance…”

Full Decision