Criminal Law Notebook

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:

11. Any person charged with an offence has the right
...

(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.


– CCRF

All rights under s. 11 of the Charter are considered "crucial fundamental rights".[1] The Charter does not protect against "insignificant or 'trivial' limitations or rights". The state action must "warrant constitutional protections".[2]

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.[3] It prevents the retroactivity of any increase in sanctions.[4] 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".[5]

The two foundational values that the right protects is "fairness of criminal proceedings" and "safeguarding the rule of law".[6] 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".[7]

Rule Against Retrospective Punishment
The section applies only where there has been a change between the "commission of the offence" and the sentencing.[8] This is sometimes referred to as the "crystallization principle"[9] or the principle of lex mitior.[10]

An accused convicted of an offence that is subsequently repealed after conviction but before sentencing, the accused can only be sentenced for the offence as it existed before the repeal.[11]

Presumptions
There is a presumptions against the retrospective application all changes in legislation unless there is "clear legislative direction".[12]

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.[13]

Common Law Retrospective Punishment
The right under s. 11(i) only applies to statutory punishment. It has not bearing on the interpretation and application of case law that post-dates the offence itself.[14]

Amendments Favourable to Accused
It is generally said that changes to punishments that are favourable to the accused should be available to an accused.[15]

  1. ↑ R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541,, per Wilson J at p. 558
  2. ↑ R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J (7:2), at para 42
    Cunningham v Canada, 1993 CanLII 139 (SCC), [1993] 2 SCR 143, per McLachlin J at p. 151B
  3. ↑ Re McCutcheon and City of Toronto et al., 1983 CanLII 1629 (ON SC), per Linden J
  4. ↑ McCutcheon, ibid.
  5. ↑ KRJ, supra at para 22
  6. ↑ KRJ, supra at para 20 to 27
  7. ↑ KRJ, supra at para 23
  8. ↑ Liang v Canada (Attorney General), 2014 BCCA 190 (CanLII), per MacKenzie JA
    Canada (Attorney General) v. Whaling, [2014] 1 SCR 392, 2014 SCC 20 (CanLII), per Wagner J, at para 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.")
    Whaling v. Canada (Attorney General), 2017 FC 121 (CanLII), per Barnes J at para 2
    KRJ, supra at para 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”.")
  9. ↑ R v Canto, 2015 ABCA 306 (CanLII), per Slatter JA
    R v Letiec, 2015 ABCA 123 (CanLII), per Wakeling JA
  10. ↑ R v Storheim, 2014 MBQB 141 (CanLII), per Mainella J at para 2
  11. ↑ R v Vernacchia, 1988 CanLII 244 (QC CA), per Mailot JA - the offender was convicted of rape and so could not be sentenced to the new offence of "sexual assault"
  12. ↑ R v Dineley, 2012 SCC 58 (CanLII), [2012] 3 SCR 272, per Deschamps J (4:3), at para. 10
  13. ↑ Bulmer v Alberta (Solicitor General), 1987 CanLII 3318 (AB QB), per McFadyen J
  14. ↑ R v WJ, 2016 BCSC 161 (CanLII), per Macintosh J
  15. ↑ R v Dorfer, 2009 BCSC 202 (CanLII), per Ehrcke J, at para 51, appeal upheld at 2013 BCCA 223 (CanLII), per Kirkpatrick JA

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.[1] It can include any "severe handling" or "harsh or injurious treatment".[2]

The consequences of an order will amount to punishment where: [3]

  1. 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
    1. the consequence must be “imposed in furtherance of the purpose and principles of sentencing” or
    2. it has a significant impact on an offender’s liberty or security interests.

A "liberal and purposive approach" must be taken to defining punishment.[4] This requires that the purpose of s. 11(i) should be focused on "the rule of law and fairness in criminal proceedings".[5] However, it does not "encompass every potential consequence of being convicted of a criminal offence".[6]

Certain types of ex post facto treatment of the offender is not viewed as punishment under s. 11(i). That includes deportation following conviction[7] and license suspension under provincial law which is considered a "civil disability"[8].

There is some opinion that a criminal record under the Criminal Records Act itself constitutes a form of punishment.[9]

Established Categories of Orders
Ancillary orders including forfeiture, prohibition, restitution and probation, all "have the potential" to be "additional punishment".[10]

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.[11]

A conditional sentence is a form of "lesser punishment".[12]

  1. ↑ R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J
  2. ↑ R v Lambert, 1994 CanLII 4531 (NL CA), per Steele JA
  3. ↑ R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J (7:2) at para 41, modifying the test in Rodgers, supra at para 63
  4. ↑ KRJ, supra at para 29
  5. ↑ KRJ, supra at para 37
  6. ↑ Rodgers, supra at para 63
  7. ↑ see Re Gittens and the Queen [1983] 1 FC 152, 68 CCC 2d 438 (FCTD), 1982 CanLII 2948 (FC), per Mahoney J
    Hurd v Canada (MEI) [1989] 2 FC 594 (FCA)(*no CanLII links)
  8. ↑ see Johnston v Superintendent of Motor Vehicles [1987] BCJ No44 (BCSC), 1987 CanLII 2859 (BC SC), per Wood J
  9. ↑ Chu v Canada (Attorney General), 2017 BCSC 630 (CanLII), per MacNaughton J
  10. ↑ Lambert, ibid.
    R v Wiles, 2005 SCC 84 (CanLII), per Charron J, at para 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...")
    R v Wauer, 2014 ABCA 270 (CanLII), per curiam at para 13
  11. ↑ Ross v Registrar of Motor Vehicles et al., [1975] 1 SCR 5, 1973 CanLII 176 (SCC), per Pigeon J
  12. ↑ R v Yusuf, 2011 BCSC 626 (CanLII), per Griffin J at para 29
    R v SB, 2008 BCSC 1526 (CanLII), per Romilly J at para 53, aff’d 2010 BCCA 40 (CanLII), per Neilson JA
    R v RAR, 2000 SCC 8 (CanLII), per L'Heureux-Dube J

Penalties

See also: 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.[1]

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.[2]

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".[3]

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.[4]

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.[5]

Application in Appellate Proceedings
The rights under s. 11(i) of the Charter do not apply to a review of sentence on appeal.[6]

  1. ↑ Section 11(i) of the Canadian Charter of Rights and Freedoms
    R v RS, 2015 ONCA 291 (CanLII), per Benotto J
  2. ↑ R v VIC, 2005 SKCA 95 (CanLII), per Sherstobitoff JA at para 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.")
    see also
  3. ↑ R v Thow, 2010 BCCA 538 (CanLII), per Low JA
    R v DDB, 2015 ABPC 200 (CanLII), per Dinkel J at para 110
    R v Patricio, 2011 QCCQ 5261 (CanLII), per Leblond J at para 26
    c.f. Stewart, 2013 SKPC 64 (CanLII), per Irwin J
    see also Canada (Attorney General) v Lalonde, 2016 ONCA 923 (CanLII), per Doherty J at paras 13 to 25
  4. ↑ R v Mehanmal, 2012 ONCJ 681 (CanLII), per Hearn J
    R v Yusuf, 2011 BCSC 626 (CanLII), per Griffin J
  5. ↑ R v Cadman, 2018 BCCA 100 (CanLII), per Goepel JA
  6. ↑ R v Potvin, [1993] 2 SCR 880, 1993 CanLII 113 (SCC), per Sopinka J
    R v Luke, 1994 CanLII 823 (ON CA), per Griffiths JA
    R v Bishop, 1994 ABCA 361 (CanLII), per curiam

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".[1] As such, the dominant line of cases suggests that the provisions of SOIRA are retrospective.[2]

A retrospective SOIRA order is a valid order.[3] These orders do not infringe upon s. 7 of the Charter.[4]

  1. ↑ R v Cross, 2006 NSCA 30 (CanLII), per Bateman JA at para 85
  2. ↑ Cross, ibid.
    R v Redhead, 2006 ABCA 84 (CanLII), per curiam
    R v Aberdeen, [2005] AJ No. 1062, 2005 ABPC 203 (CanLII), per LeGrandeur J
    R v ME, 2012 ONSC 1078 (CanLII), per Hill J
  3. ↑ R v Owusu, 2007 ABCA 95 (CanLII), per Fruman JA
    R v Youngpine, 2009 ABCA 89 (CanLII), per Fraser JA at para 16 to 17
    R v Warren, 2010 ABCA 133 (CanLII), per curiam at para 9
  4. ↑ Warren, ibid. at para 23

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. [1]

  1. ↑ R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J (4:3)
    R v Redhead, 2006 ABCA 84 (CanLII), per curiam

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:

11. Any person charged with an offence has the right
...

(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;


– CCRF

This rule found in s. 11(h) of the Charter is a adoption of the "ex post facto doctrine" of law.[1]

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."[2]

  1. ↑ R v Letiec, 2015 ABCA 123 (CanLII), per Wakeling JA
  2. ↑ R v Carriere, 2013 ABQB 645 (CanLII), per Wakeling J

See Also

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