APPEAL ALLOWED

R. v. Poulin, 2019 SCC 47

Constitutional law — Charter of Rights — Benefit of lesser punishment — Mootness — Death of respondent

On appeal from a judgment of the Quebec Court of Appeal (2018 QCCA 21), affirming the sentencing decision of Vanchestein J., 2017 QCCQ 7015.

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 Furthermore, the parties agreed that it was no longer applicable to the offence of gross indecency, according to the provisions in force, by the time P was charged, convicted and sentenced.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.

Held (Abella, Karakatsanis and Brown JJ. dissenting): The motion to proceed with the appeal and the appeal should be allowed.

Per Wagner C.J. and Moldaver, Côté and Martin JJ.:

This is one of those rare and exceptional cases in which the Court ought to exercise its discretion to adjudicate a moot criminal appeal. First, the Court has had the benefit of adversarial submissions in this case. Second, the Crown’s appeal raises an important constitutional question that has not yet received comprehensive treatment in the jurisprudence. Third, the proper interpretation of s. 11 (i) of the Charter is a legal issue of general public importance which transcends P’s death. Fourth, the value of the Court’s ruling on the proper interpretation of s. 11 (i) clearly outweighs any concerns about limited judicial resources. It is much more efficient and fair for the Court to decide this question of national importance now, rather than cause future litigants and lower courts to expend further resources debating this question until, inevitably, it reaches the Court anew. Finally, it is for the courts, not Parliament, to define the scope of Charter rights. The Court would therefore not be intruding on the legislative role by answering the question put to it.

A purposive analysis of s. 11 (i) of the Charter leads to the conclusion that 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. Section 11 (i) confers a binary right, not a global one. A binary right 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. By contrast, a global right 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. The language and origins of s. 11 (i) both confirm the purposes of s. 11 (i) — namely the rule of law and fairness — and indicate that s. 11 (i) is intended to confer a binary right.

A Charter right must be interpreted purposively — that is, in a manner that is justified by its purposes. Purposive interpretation can be mistakenly conflated with generous interpretation. While Charter rights must be interpreted in a large and liberal manner, they are ultimately bounded by their purposes. Courts that have given s. 11(i) a global reading have fallen into the error of prioritizing generosity over purpose. Rather than identifying the principles or purposes underlying s. 11(i), they have simply concluded that s. 11(i) should be given the interpretation most generous to the accused. However, the principle that a provision bearing more than one plausible meaning must be read in a manner that favours the accused is not a principle of Charter interpretation. It is a principle of penal statutory interpretation. Reading s. 11(i) in a manner that would require the court to impose the most favourable punishment identifiable in the interval between the offence and sentencing does not reflect the kind of generous interpretation that Charter rights should receive. Rather, it reflects an unduly generous interpretation, disconnected from the purposes of the right.

When conducting a purposive analysis of a Charter right, the starting point must be the language of the section. Section 11 (i) was worded to confer a binary right. The origins of s. 11 (i) corroborate this conclusion. While the origins of s. 11 (i) are not determinative of the right’s proper scope, they provide an instructive starting point. A review of s. 11 (i)’s historical context reveals that there was nothing to inspire a global right at the time of its drafting and enactment. A global right was not part of the legal landscape; the common law certainly did not recognize one, and none of the enactments inspiring s. 11 (i) embraced one either.

Section 11(i) balances, on the one hand, the principle of the rule of law and, on the other, the principle of fairness. It enshrines the common law rule that an offender should not be retrospectively subjected to a heavier punishment than the one applicable at the time the person committed the offence. The rationale for this rule is the rule of law and, more specifically, the principle of legality, which dictates that persons who rely on the state of the law in conducting themselves, or who risk the liability associated with a law in breaking it, should not subsequently be held to different laws, particularly more stringent ones. However, s. 11(i) constitutionalizes an additional protection. It stipulates that, where the law provides a more favourable punishment at the time of the offender’s sentencing than it did at the time of the offence, the offender is entitled to the benefit of this more favourable, current punishment. The rationale for this is fairness. It would not be fair to subject an offender to a punishment which, in choosing to reduce it, Parliament has expressly recognized as no longer appropriate. Further, a criminal sentence is an expression of society’s collective voice; it is meant to reflect contemporary values.

A binary interpretation of s. 11(i) is not unfair or arbitrary for an offender who is punished according to the law in place at the time he committed his offence, or a more favourable law, if one is in place when he is sentenced. To the contrary, these two laws are linked to the offender and the proceedings against him; the first sets out the punishment he risked incurring at the time he acted, and the other likewise sets the contours for a sentence that reflects society’s attitude about the gravity of the offence and the responsibility of the offender at the precise moment the sentence is imposed. It is, accordingly, fair and rational for the offender to have the benefit of one of these punishments. Conversely, there is no principled basis to grant an offender the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence. Furthermore, countervailing fairness considerations militate against a global approach to s. 11(i). A global approach to s. 11(i) would disproportionately benefit those who are sentenced years, or even decades, after their offences. Sexual offences like P’s often go long unreported. Survivors of sexual trauma commonly delay in disclosing abuse for reasons such as embarrassment, fear, guilt, or a lack of understanding and knowledge. There should be no additional gain to an offender under s. 11(i) when a victim is traumatized to the point of requiring significant time to overcome any reluctance to report the offence.

Per Abella, Karakatsanis and Brown JJ. (dissenting):

The motion to proceed with the appeal should be dismissed. This case is one of the overwhelming number of cases in which proceeding with the appeal would not be in the interests of justice. First, it is hard to conclude that a real adversarial context exists. Second, while it is true that any issue concerning the interpretation of a Charter provision is always of great importance, there are no special circumstances in this case that transcend the death of P. In light of 30 years of consistent case law on this issue, it cannot be said that there are conflicting lines of cases here or an issue that is ordinarily evasive of appellate review. Finally, the inequity of proceeding with an appeal against a deceased offender despite opposition from his family is obvious.

Furthermore, the appeal should be dismissed on the merits. For 30 years, the Canadian courts have interpreted s. 11 (i) of the Charter consistently, holding that it guarantees any offender the benefit of the lesser sentence that applied between the time of commission of the offence and the time of sentencing. This approach finds ample support in the words of s. 11 (i), which suggest a continuum between the time of commission and the time of sentencing. A technical construction such as the one proposed by the Crown is contrary to the Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights. The interpretation adopted by other Canadian courts reflects two objects of s. 11 (i) identified by the Court, namely the rule of law and ensuring fairness in criminal proceedings. There are several points in the course of a criminal investigation and prosecution — before the time of sentencing — at which an individual might be required to make choices in light of punishments then applicable. The protection of s. 11 (i), which cannot be contingent on evidence that the accused relied on the existing law, is grounded in this very possibility. Here, the possibility that the interpretation of s. 11 (i) adopted by the courts will complicate the analysis of the applicable punishments should not weigh against it. It seems imprudent to rule out an interpretation that provides offenders with more substantial protection where there is no evidence that there are difficulties, especially in light of the actual wording of the provision. Finally, the proposal that s. 11 (i) has a third object, to ensure that the imposed punishment corresponds to the social stigma associated with the offence at the time of sentencing, seems to confuse the availability of a punishment with its fairness and appropriateness. In a case involving multiple incidents in which serious acts of sexual abuse were committed against a young relative, it may be that the conditional sentence was not a fair and appropriate punishment. But that is not the question before the Court.

Citation:                                               R. v. Poulin, 2019 SCC 47

SCC File Nos. :                                   37994

Reasons for Judgment:                       Martin J. (Wagner C.J. and Moldaver and                                                             Côté JJ. concurring)

Dissenting Reasons:                           Karakatsanis J. (Abella and Brown JJ.                                                             concurring)

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17964/index.do