R v. Poulin: A Right to the Lesser Punishment

Introduction

Section 11 of the Charter of Rights and Freedoms [Charter] sets out rights for individuals charged with an offence – the right to know the charges against you, the right to a trial within a reasonable time, the right to refuse to be a witness against oneself, and the right to be presumed innocent until proven guilty, among others. In this post, I will discuss the case R v Poulin, 2019 SCC 47, a recent decision from the Supreme Court of Canada (“SCC” or “the Court”) that limits the scope of one of these rights: the right to the lesser punishment between the time of committing the offence and the time of sentencing.

For further discussion of s. 11 of the Charter, see Steph Brown’s recent TheCourt.ca post on the presumption of innocence and laws criminalizing child-luring. See also Michelle Cook’s TheCourt.ca post about R. v. Jordan, a seminal case on the right to a trial within a reasonable time.

Facts and Procedural History

Mr. Poulin committed a series of sexual offences against a young family member between 1979 and 1987. Between the time he committed these offences and the time he was sentenced, both the sentencing laws and the delineation of relevant offences changed. At the time of his sentencing, Mr. Poulin was 82 years old, experiencing a variety of physical ailments and a degenerative neurological disorder, and living in a long-term care facility. Due to his circumstances, Mr. Poulin’s counsel requested a community sentence. This sentence constitutes a conditional sentence, which was not part of the sentencing regime at the time he committed his offences, nor at the time of sentencing. Between those dates, however, conditional sentencing was temporarily available for his offences. Mr. Poulin passed away shortly before the SCC heard the appeal.

Section 11(i) of the Charter states: “Any person charged with an offence has the right, if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Mr. Poulin’s counsel relied on this provision to argue that the conditional sentencing provision should be available to him. The Court of Quebec and Quebec Court of Appeal accepted this. 

Lesser of Two Punishments or Lesser of Many?

The SCC tackled the issue of the scope of s. 11(i) of the Charter, focusing on the legislatures use of the word “between.” The question was whether an offender has the benefit of the lesser punishment available at two points in time, being the time the offence was committed and the time of sentencing, or at all points in time between those two key dates. The majority refers to these two different interpretations as “binary” versus “global” (para 2).

The Majority Judgment: A Binary Interpretation, Sort Of

Justice Martin, writing for the majority, found that the Charter certainly gives an offender the right to the lesser punishment of that available at the time the offence was committed and that available at the time of sentencing. She found that it may also give the right to the lesser offence available at another point in time between those two dates (paras 111-113). Justice Martin determined that the legislature did not intend for all punishments temporarily in force between those two dates to be available to the offender at sentencing, but she also did not provide instruction for how to determine whether a temporary punishment should be available. Based on their new interpretation of the provision, the Court found that Mr. Poulin did not have the right to a conditional sentence under s. 11(i) of the Charter.

This decision overturned 30 years of case law where judges consistently employed the “global” interpretation of s. 11(i) (para 142). Justice Martin explains that lower courts have misapplied the Charter provision because none of those cases adequately prioritized a purposive analysis of s. 11(i) (para 32 & 55). Taking a purposive approach, Justice Martin established two principles that the section must balance – legality and fairness (para 62).

The principle of legality or the rule of law promotes a person’s ability to act according to the laws of the day. In other words, if a person chooses to act illegally, they should be able to make this choice, relying on the risk of the punishment enacted at the time the offence was committed (para 58). This is a foundation of crime and punishment, and this is why offenders should not be subject to a harsher punishment in force at the time of sentencing if there was a lighter punishment for the same crime at the time of the offence (para 60).

The principle of fairness is engaged in s. 11(i) because it is not fair to preclude an offender from a lighter punishment available at the time of sentencing in favour of an older provision that Parliament has deemed is no longer appropriate (para 61). Mr. Poulin and the Criminal Law Association argued that the principle of fairness is not served by a binary interpretation because it allows for two offenders who commit the same crime at the same time but are sentenced at different times to be subject to different punishments (para 90). The majority justices disagreed. They reasoned that the difference in punishments simply reflects the reality of legislative change and that the global interpretation also would not guarantee identical results for the two offenders in such a hypothetical scenario. They suggested that a further, countervailing, fairness consideration is that we do not want to reward offenders who have managed to avoid sentencing for many years, which is not uncommon in child sexual abuse cases like this one (paras 90-98). Finally, the Court suggests that a global approach would also resurrect punishments that Parliament has expressly rejected and would allow offenders to take advantage of legislative oversights or errors that were later corrected (paras 100-101).

Beyond the discussion of a “binary” versus “global” interpretation, the majority explained how to determine the lesser punishment and apply it. Importantly, they affirmed that the lesser of the available punishments must be applied, even if the sentencing judge does not believe it is the appropriate punishment (para 45). Additionally, if there are criteria that must be met for an offender to access a lesser punishment, s. 11(i) does not override those criteria (paras 46-47).

The Dissent: If It Ain’t Broke…

Justice Karakatsanis, writing for the dissent, pointed to 30 years of jurisprudence relying on the global interpretation of s. 11(i) (para 147). The dissenting justices are mainly concerned that the rule of law and principle of fairness should be applied across time, and that there is no reason to limit their application to the time of commission and the time of sentencing. There may be many points between the time the offence is committed and the time of sentencing that an offender relies on the state of the law at that particular time. For example, they may rely on it in choosing to cooperate with an investigation, choosing to remain silent, or deciding whether to enter a plea or submit a joint submission to the sentencing judge (para 153). Even the Crown conceded that at the very least, the punishment in force at the time the charges are laid should be available to the offender (para 153). For the dissenting justices, “this law is grounded in the very possibility that the accused will be required to make choices in light of the existing law at various points in the criminal process” (para 153).

A Troubling Decision

This decision is surprising. The majority establishes an interpretation of section 11(i) that defies 30 years of consistent case law following a different interpretation. The majority also chose to hear the case despite one party being deceased, primarily because the question of law had never been considered by this Court and was supposedly pressing. After boldly charging ahead in reconsidering the application of s. 11(i), it seems that we are left with only a partially clarified section with many questions remaining.

In agreement with the dissenting justices, the limited application of the rule of law seems arbitrary. This is because, just as it is only a possibility that an offender’s conduct relies on the law in relation to their offence at any point in time between its commission and sentencing it is also only a possibility that an offender relied on the sentencing provisions at the time they committed the offence. At the very least, it is not guaranteed that an offender relied on the law at any point prior to sentencing.

An offender might know exactly the sentencing provisions in force at the time they commit an offence, but I would hazard a guess that many offenders do not stay up to date with these provisions. There is not much recent empirical research on this question in Canada, but a recent report for the UK Sentencing Council found that many lay people in Britain do not even understand the terms in sentencing provisions and few have accurate expectations for punishments of particular crimes. This report is not conclusive evidence that offenders are not aware of sentencing provisions, but it does question the assumption that offenders are aware of sentencing provisions at the time they commit an offence. Yet, the rule of law still requires that the provisions in force at the time of the offence remain applicable to an offender at the time of sentencing. Thus, the majority’s concern for the rule of law focused only on the time the offender commits the offence, due to their reliance on the law at that time, seems to be arbitrarily limited.

The greatest implication of this decision is that the right in question has been diminished. The majority has implied that, if an offender does not have access to all possible sentencing provisions between the offence and sentencing, then they must submit evidence to demonstrate that they relied on one of those in-between provisions to which they are not automatically entitled. In this context, the burden is on the offender to prove their entitlement to section 11(i) of the Charter and the inherent weight of this right is significantly diminished.

Seven justices participated in this judgment and, of those seven, only four were in the majority. I expect questions regarding s. 11(i) of the Charter will return to the SCC in the future. In the meantime, we will have to observe how the lower courts grapple with answering the important questions the SCC has left unanswered.