Section 11(i) of the Charter of Human Rights and Freedoms grants a guilty person the right to the benefit of the lesser punishment if the penalty has been varied between the time of the offence and the sentencing.
So what about if there was a lower sentence in between when the act was committed, and when the offender is brought to court?
In 2016, Rosaire Poulin was convicted of sexual assault and acts of gross indecency. He received a conditional sentence of two years less a day.
The issue with this sentence is that it did not exist at the time of the offences – in the late 1980’s – nor did it exist at the time of sentencing in 2016. But it did exist for a time between those two dates. Mr. Poulin’s counsel tried to argue that he should nonetheless benefit from this lesser punishment. The case was appealed all the way up to the Supreme Court for an answer.
The judgment was released on October 11, 2019. Justice Sheila Martin, writing for the majority, clarified that although the legal rights 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.” Put differently, the right flowing from section 11(i) of the Charteris not free-standing. The right is truly tethered to two specific points in time: the punishment as it existed at the time of the offence and the punishment that exists at the time of sentencing. The former was chosen because it “reflects the jeopardy or legal risk the offender took by offending.” The latter was chosen because 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.”
Unfortunately for Mr. Poulin, this decision meant that his sentence could not stand, as it did not exist at the time of the offences nor the time of his sentencing. But the SCC refused to give a new sentence to Mr. Poulin because he had passed away before this hearing. Technically, his death means the case is moot. However, SCC decisions are judge-made law. They affect all Canadians. Because of this power, the SCC has discretion to hear cases that touch on significant issues regardless if the decision will impact the named defendant. The SCC chose to exercise that discretion in this case.
If you are needing assistance with your sentencing matter, reach out to the team at DeMelo Law. We will advocate the best sentence possible for you.