R. v. POULIN, 2019 SCC 47

Right under charter is right to lesser of two punishment, it is not right to lesser of many punishments.

Between 1979 and 1987, Mr Poulin (respondent) committed sexual offences. In 2014, he was accused, convicted in 2016, and imprisoned in 2017. He was elderly and in ill health, so respondent had a conditional sentence requested. A conditional punishment meant that the respondent would not go to prison, but those conditions had to be met (under 11(i)). The sentencing judge agreed.

The Crown claimed and appealed that the judge was mistaken to grant the conditional punishment to respondent. It also said that either when respondent committed his crimes or when he was convicted, there was not a choice. “It meant that when determining on the” lesser “sentence, the judge should only look at those two points in time. But the respondent stated that the Section 11(i) meant that the judge had to look in time at these two points with that he further added that the judge also had to look at all the things in between as well. Respondent claimed he should get the advantage of the lowest sentence applicable over those 3 decades for his offences at that point. There was a period of time when, for his crimes, the law made a conditional sentencing as an alternative. He said the promise of “lesser penalty” under section11(i) indicated that he should be allowed to get it. In the past, Canadian courts have adopted respondent interpretation. Also, the Court of Appeal agreed to that. Quebec Court agreed in favour of the respondent, and unsuccessful appealed by the crown.

The matter came to the Supreme Court Canada, which the majority disagree with the respondent interpretation. It clarified that when determining the penalty shot, the sentencing judge could only look at the time the offence was committed and the time that respondent was convicted. Sec 11 balances two concepts: the rule of law and equality. A common law provision that an accused should not be sentenced to a stricter sentence retrospectively than that applied at the time of the offence respects the offender. The rule of law helps citizens to rely on the state of the law as it was at the appropriate time and does not fear being kept to a stricter requirement. Section 11 moves a step forward and enshrines an added security that guarantees equity by encouraging the accused to benefit from a more favourable sentence if one occurs at the time of sentencing. According to the majority, a binary interpretation is the fairest choice since both the potential sentences and the proceedings relating to the respondent are related to the accused: one reflects the state of the law at the time of the offence and the other reflects a more desirable law expressing the opinion of society on the severity of the offence. Section 11(i) was not designed to grant a person the right to dig through the history in order to find the most desirable penalty ever possible.

Section 11(i) defends individuals from the unfairness of being subjected to a penalty for their crimes that society no longer feels is acceptable. Although making lesser sentences open to individuals who get away with their offences longer would be unjust. Respondent case was one of them.