View source for Retrospective Punishments

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==General Principles==

Section 11(i) of the Canadian Charter of Rights and Freedom protects against the use of retrospective application of criminal punishments. It states:

{{quotation|11. Any person charged with an offence has the right <br>...<br>
:(i)	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.
|[http://canlii.ca/t/8q7l#sec11 CCRF]}}

All rights under s. 11 of the Charter are considered "crucial fundamental rights".<ref>
''R v Wigglesworth'', [http://canlii.ca/t/1ftkp 1987 CanLII 41] (SCC), [1987] 2 SCR 541,{{perSCC|Wilson J}}{{atp|558}}<br>
</ref> The Charter does not protect against "insignificant or 'trivial' limitations or rights". The state action must "warrant constitutional protections".<ref>
''R v KRJ'', [http://canlii.ca/t/gsm3w 2016 SCC 31] (CanLII){{perSCC|Karakatsanis J}} (7:2){{at|42}}<Br>
''Cunningham v Canada'', [http://canlii.ca/t/1fs4b 1993 CanLII 139] (SCC), [1993] 2 SCR 143{{perSCC|McLachlin J}} at p. 151B<br>
</ref>

; Purpose
The purpose of s. 11(i) of the Charter was to enshrine the provisions of the federal and provincial Interpretation Acts that relate to accused benefiting from lesser punishments should legislation change.<ref>
Re McCutcheon and City of Toronto et al., [http://canlii.ca/t/g1jl1 1983 CanLII 1629] (ON SC){{perONSC|Linden J}}<br>
</ref>
It prevents the retroactivity of any increase in sanctions.<ref>
{{ibid1|McCutcheon}}
</ref>
Section 11(g) protecting the right "not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence" and s. 11(i) both establish the broader principle that "criminal laws should generally not operate retrospectively".<ref>
{{supra1|KRJ}}{{at|22}}<br>
</ref>

The two foundational values that the right protects is "fairness of criminal proceedings" and "safeguarding the rule of law".<ref>
{{supra1|KRJ}}{{ats|20 to 27}}<br>
</ref>
These rights has its origins in the principle that "a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it".<ref>
{{supra1|KRJ}}{{at|23}}<br>
</ref>

; Rule Against Retrospective Punishment
The section applies only where there has been a change between the "commission of the offence" and the sentencing.<ref>
Liang v Canada (Attorney General), [http://canlii.ca/t/g6wpr 2014 BCCA 190] (CanLII){{perBCCA|MacKenzie JA}}<br>
Canada (Attorney General) v. Whaling, [2014] 1 SCR 392, [http://canlii.ca/t/g67hl 2014 SCC 20] (CanLII){{perSCC|Wagner J}}{{at|55}} ("Section 11(i), although less explicitly concerned with retroactivity, protects against increases in punishment between the time of commission of the crime and the time of sentencing.")<Br>
Whaling v. Canada (Attorney General), [http://canlii.ca/t/gx7x5 2017 FC 121] (CanLII), ''per'' Barnes J at para 2<br>
{{supra1|KRJ}}{{at|3} ("s. 11(i) of the Canadian Charter of Rights and Freedoms provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”.")<Br>
</ref> This is sometimes referred to as the "crystallization principle"<ref>
''R v Canto'', [http://canlii.ca/t/gld0d 2015 ABCA 306] (CanLII){{perABCA|Slatter JA}}<Br>
''R v Letiec'', [http://canlii.ca/t/gh6nv 2015 ABCA 123] (CanLII){{perABCA|Wakeling JA}}<br>
</ref> or the principle of ''lex mitior''.<ref>
''R v Storheim'', [http://canlii.ca/t/g850p  2014 MBQB 141] (CanLII){{perMBQB|Mainella J}}{{at|2}}<br>
</ref>

An accused convicted of an offence that is subsequently repealed after conviction but before sentencing, the accused can only be sentenced for the offence as it existed before the repeal.<ref>
''R v Vernacchia'', [http://canlii.ca/t/1pmjl 1988 CanLII 244] (QC CA){{perQCCA|Mailot JA}} - the offender was convicted of rape and so could not be sentenced to the new offence of "sexual assault"<Br>
</ref>

; Presumptions
There is a presumptions against the retrospective application all changes in legislation unless there is "clear legislative direction".<ref>
''R v Dineley'', [http://canlii.ca/t/ftl1j 2012 SCC 58] (CanLII), [2012] 3 SCR 272{{perSCC|Deschamps J}} (4:3){{at|10}}<br>
</ref>

; Application in Non-Criminal Matters
Section 11(i) was not intended to apply outside of criminal matters and certainly should not apply to subsequent civil matters.<ref>
''Bulmer v Alberta (Solicitor General)'', [http://canlii.ca/t/28ld4 1987 CanLII 3318] (AB QB){{perABQB|McFadyen J}}<br>
</ref>

; Common Law Retrospective Punishment
The right under s. 11(i) only applies to statutory punishment. It has no bearing on the interpretation and application of case law that post-dates the offence itself.<ref>
''R v WJ'', [http://canlii.ca/t/gn7kz 2016 BCSC 161] (CanLII){{perBCSC|Macintosh J}}
</ref>

; Amendments Favourable to Accused
It is generally said that changes to punishments that are favourable to the accused should be available to an accused.<ref>
''R v Dorfer'', [http://canlii.ca/t/22k66 2009 BCSC 202] (CanLII){{perBCSC|Ehrcke J}}{{at|51}}, appeal upheld at [http://canlii.ca/t/fxc4w 2013 BCCA 223] (CanLII){{perBCCA|Kirkpatrick JA}} <br>
</ref>

{{reflist|2}}
==Punishments==
A "punishment" within the meaning of s. 11 of the Charter refers to sanctions imposed by the court in an attempt to meet the purposes and principles of sentencing. It does not include every potential consequence from a conviction that may provide deterrent value.<ref>
''R v Rodgers'', [http://canlii.ca/t/1n3br 2006 SCC 15] (CanLII), [2006] 1 SCR 554{{perSCC|Charron J}}
</ref>
It can include any "severe handling" or "harsh or injurious treatment".<ref>
''R v Lambert'', [http://canlii.ca/t/1npm0 1994 CanLII 4531] (NL CA){{perNLCA|Steele JA}}<br>
</ref>

The consequences of an order will amount to punishment where: <ref>
''R v KRJ'', [http://canlii.ca/t/gsm3w 2016 SCC 31] (CanLII){{perSCC|Karakatsanis J}} (7:2){{at|41}}, modifying the test in Rodgers{{supra}}{{at|63}}<Br>
</ref>
# the measure must be a consequence of a conviction that “forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence”; and either
## the consequence must be “imposed in furtherance of the purpose and principles of sentencing” or 
## it has a significant impact on an offender’s liberty or security interests.

A "liberal and purposive approach" must be taken to defining punishment.<ref>
{{supra1|KRJ}}{{at|29}}<Br> </ref>
This requires that the purpose of s. 11(i) should be focused on "the rule of law and fairness in criminal proceedings".<ref>{{supra1|KRJ}}{{at|37}}<Br>
</ref>
However, it does not "encompass every potential consequence of being convicted of a criminal offence".<ref>
{{supra1|Rodgers}}{{at|63}}<Br>
</ref>

Certain types of ''ex post facto'' treatment of the offender is not viewed as punishment under s. 11(i). That includes deportation following conviction<ref>
see ''Re Gittens and the Queen'' [1983] 1 FC 152, 68 CCC (2d) 438 (FCTD), [http://canlii.ca/t/g9q3j 1982 CanLII 2948] (FC), ''per'' Mahoney J<br> 
''Hurd v Canada (MEI)'' [1989] 2 FC 594 (FCA){{NOCANLII}}<br>
</ref> and license suspension under provincial law which is considered a "civil disability"<ref>
see ''Johnston v Superintendent of Motor Vehicles'' [1987] BCJ No44 (BCSC), [http://canlii.ca/t/22wfs 1987 CanLII 2859] (BC SC){{perBCSC|Wood J}}</ref>. 

There is some opinion that a criminal record under the Criminal Records Act itself constitutes a form of punishment.<ref>
''Chu v Canada (Attorney General)'', [http://canlii.ca/t/h38cd 2017 BCSC 630] (CanLII){{perBCSC|MacNaughton J}}<br>
</ref>

; Established Categories of Orders
Ancillary orders including forfeiture, prohibition, restitution and probation, all "have the potential" to be "additional punishment".<ref>
{{ibid1|Lambert}}<br>
''R v Wiles'', [http://canlii.ca/t/1m7f5 2005 SCC 84] (CanLII){{perSCC|Charron J}}{{at|3}} ("Although the purpose of the prohibition order is primarily preventative, in taking away the privilege to possess weapons, it may have some punitive effect on the offender...") <Br>
''R v Wauer'', [http://canlii.ca/t/g8s0q 2014 ABCA 270] (CanLII){{TheCourtABCA}}{{at|13}}<Br>
</ref>

A suspension of driving privileges subsequent to a criminal conviction is a civil or administrative consequence and does not amount to a punishment within the meaning of s. 11(i) of the Charter.<ref>
''Ross v Registrar of Motor Vehicles et al.'', [1975] 1 SCR 5, [http://canlii.ca/t/1xtxk 1973 CanLII 176] (SCC){{perSCC|Pigeon J}}<br>
</ref>

A conditional sentence is a form of "lesser punishment".<ref>
''R v Yusuf'', [http://canlii.ca/t/flcx5 2011 BCSC 626] (CanLII){{perBCSC|Griffin J}}{{at|29}}<br>
''R v SB'', [http://canlii.ca/t/21l9h 2008 BCSC 1526] (CanLII){{perBCSC|Romilly J}} at para 53, aff’d [http://canlii.ca/t/2876l 2010 BCCA 40] (CanLII){{perBCCA|Neilson JA}}<br>
''R v RAR'', [http://canlii.ca/t/527j 2000 SCC 8] (CanLII){{perSCC|L'Heureux-Dube J}}<br>
</ref>

{{reflist|2}}

===Penalties===
{{seealso|Maximum and Minimum Sentences}}

Where the accused is charged after a legislative amendment to the mandatory minimums in relation to offences that are completed before the amendments, then by function of s. 11(i), the old penalties must apply.<ref>
Section 11(i) of the [http://canlii.ca/t/ldsx Canadian Charter of Rights and Freedoms]<br>
''R v RS'', [http://canlii.ca/t/ghd9x 2015 ONCA 291] (CanLII){{perONCA|Benotto J}}
</ref>

; Straddling Range of Dates
Section 11(i) is only to apply where there has been a variation of the penalty between the commission of the offence and the sentencing.<ref>
''R v VIC'', [http://canlii.ca/t/1lgz1 2005 SKCA 95] (CanLII){{perSKCA|Sherstobitoff JA}}{{at|11}} ("[Section 11(i)] applies only where the punishment was varied between the time of the commission of the offence and the time of sentencing.")<Br>
see also 
</ref>

Where an offence occurs over a range of dates that includes the period during which a change in penalty comes into force, the question for the judge to determine is ''when'' the "majority of the offending occurred in relation to the coming into force of the Act".<ref>
''R v Thow'', [http://canlii.ca/t/2fjf0 2010 BCCA 538] (CanLII){{perBCCA|Low JA}}<br>
''R v DDB'', [http://canlii.ca/t/glblf 2015 ABPC 200] (CanLII){{perABPC|Dinkel J}}{{at|110}}<br>
''R v Patricio'', [http://canlii.ca/t/fllw6 2011 QCCQ 5261] (CanLII){{perQCCQ|Leblond J}}{{at|26}}<br>
cf. Stewart, [http://canlii.ca/t/fx1rd 2013 SKPC 64] (CanLII){{perSKPC|Irwin J}}<Br>
see also Canada (Attorney General) v Lalonde, [http://canlii.ca/t/gvzcd 2016 ONCA 923] (CanLII){{perONCA|Doherty J}}{{ats|13 to 25}}</ref>

; Amendments Reducing the Penalties
A penalty that was available after the commission of the offence but subsequently removed before sentencing may still be available to the accused.<ref>
''R v Mehanmal'', [http://canlii.ca/t/ftltd 2012 ONCJ 681] (CanLII){{perONCJ|Hearn J}}<Br>
''R v Yusuf'', [http://canlii.ca/t/flcx5 2011 BCSC 626] (CanLII){{perBCSC|Griffin J}}<br>
</ref>

A lesser penalty that was unavailable at the time of the commission of the offence but later made available at the time of sentencing will be available to the accused.<ref>
''R v Cadman'', [http://canlii.ca/t/hr2gl 2018 BCCA 100] (CanLII){{perBCCA|Goepel JA}}
</ref>

; Application in Appellate Proceedings 
The rights under s. 11(i) of the Charter do not apply to a review of sentence on appeal.<ref>
''R v Potvin'', [1993] 2 SCR 880, [http://canlii.ca/t/1fs21 1993 CanLII 113] (SCC){{perSCC|Sopinka J}}<Br>
''R v Luke'', [http://canlii.ca/t/6jvs 1994 CanLII 823] (ON CA){{perONCA|Griffiths JA}}<br>
''R v Bishop'', [http://canlii.ca/t/2dbsk 1994 ABCA 361] (CanLII){{TheCourtABCA}}<Br>
</ref>

{{reflist|2}}

=== SOIRA Orders===
SOIRA legislation is not considered a "punishment" within the meaning of s. 11(i) of the Charter except where the impact of the order amounts to "harsh treatment".<ref>''R v Cross'', [http://canlii.ca/t/1mt83 2006 NSCA 30] (CanLII){{perNSCA|Bateman JA}}{{at|85}}</ref> As such, the dominant line of cases suggests that the provisions of SOIRA are retrospective.<ref> 
{{ibid1|Cross}}<br> 
''R v Redhead'', [http://canlii.ca/t/1ms3j 2006 ABCA 84] (CanLII){{TheCourtABCA}}<Br>
''R v Aberdeen'', [2005] AJ No. 1062, [http://canlii.ca/t/1lj5b 2005 ABPC 203] (CanLII){{perABPC|LeGrandeur J}}<br>
''R v ME'', [http://canlii.ca/t/fqzhj 2012 ONSC 1078] (CanLII){{perONSC|Hill J}}<Br>
</ref>

A retrospective SOIRA order is a valid order.<ref>
''R v Owusu'', [http://canlii.ca/t/1qxj4 2007 ABCA 95] (CanLII){{perABCA|Fruman JA}}<Br>
''R v Youngpine'', [http://canlii.ca/t/22z72 2009 ABCA 89] (CanLII){{perABCA|Fraser JA}}{{ats|16 to 17}}<Br>
''R v Warren'', [http://canlii.ca/t/29ffn 2010 ABCA 133] (CanLII){{TheCourtABCA}}{{at|9}}<Br>
</ref>
These orders do not infringe upon s. 7 of the Charter.<ref>
{{ibid1|Warren}}{{at|23}}<br>
</ref>

{{reflist|2}}

===DNA Orders===
The DNA provisions under s. 487.055(1) is not a "punishment" within the meaning of s. 11 and so changes to the provision can be retrospective without violating s. 11(h) or 11(i) of the Charter.
<ref>
''R v Rodgers'', [http://canlii.ca/t/1n3br 2006 SCC 15] (CanLII), [2006] 1 SCR 554{{perSCC|Charron J}} (4:3)<Br>
''R v Redhead'', [http://canlii.ca/t/1ms3j 2006 ABCA 84] (CanLII){{TheCourtABCA}}
</ref>

{{reflist|2}}

==Retrospective Offences==
Section 11(h) of the Canadian Charter of Rights and Freedom protects against the use of retrospective application of criminal offences. It states:

{{quotation|11. Any person charged with an offence has the right <br>...<br>
(g)	not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
|[http://canlii.ca/t/8q7l#sec11 CCRF]}}

This rule found in s. 11(h) of the Charter is a adoption of the "''ex post facto'' doctrine" of law.<ref>
''R v Letiec'', [http://canlii.ca/t/gh6nv 2015 ABCA 123] (CanLII){{perABCA|Wakeling JA}}<br>
</ref>

This doctrine is also found in article 11(2) of the United Nations’ Universal Declaration of Human Rights which states: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed”.

Ex post facto laws are considered an "affront to the basic principles which underlie the rule of law...completely counters the notice function of criminal law and is detrimental to basic community values."<ref>
''R v Carriere'', [http://canlii.ca/t/g1pgs  2013 ABQB 645] (CanLII){{perABQB|Wakeling J}}
</ref>

{{reflist|2}}

==See Also==
* [[Res Judicata|Double Jeopardy]]