R. v. Poulin

R. v. Poulin
Collection
Supreme Court Judgments
Date
2019-10-11
Neutral citation
2019 SCC 47
Report
[2019] 3 SCR 566
Case number
37994
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Martin, Sheilah
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566
Appeal Heard: March 25, 2019 Judgment Rendered: October 11, 2019 Docket: 37994
Between:
Her Majesty The Queen Appellant
and
Rosaire Poulin Respondent
- and -
Attorney General of Ontario, Association québécoise des avocats et avocates de la défense and Criminal Lawyers’ Association Interveners
Official English Translation: Reasons of Karakatsanis J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Martin JJ.
Reasons for Judgment: (paras. 1 to 121)
Martin J. (Wagner C.J. and Moldaver and Côté JJ. concurring)
Dissenting Reasons: (paras. 122 to 156)
Karakatsanis J. (Abella and Brown JJ. concurring)
R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566
Her Majesty The Queen Appellant
v.
Rosaire Poulin Respondent
and
Attorney General of Ontario,
Association québécoise des avocats et avocates de la défense and
Criminal Lawyers’ Association Interveners
Indexed as: R. v. Poulin
2019 SCC 47
File No.: 37994.
2019: March 25; 2019: October 11.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Martin JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Benefit of lesser punishment — Offender convicted of historical sexual offences — Offender asserting constitutional right to receive sentence not available in Criminal Code at time of commission of offences or time of sentencing, but only for discrete period between those two times — Whether offender has right to benefit only of punishment applicable at time of offence and time of sentencing or right to benefit of any punishment applicable during the interval between those two times — Canadian Charter of Rights and Freedoms, s. 11(i) .
Criminal law — Appeals — Mootness — Death of respondent — Respondent passing away after leave to appeal granted but prior to hearing of appeal — Whether Court should exercise discretion to hear appeal.
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.
Cases Cited
By Martin J.
Applied: R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; referred to: R. v. Belzil, [1989] R.J.Q. 1117; R. v. MacLellan, 2019 NSCA 2, 369 C.C.C. (3d) 482; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Beaton, 2018 ONCA 924; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Cadman, 2018 BCCA 100, 359 C.C.C. (3d) 427; R. v. Bent, 2017 ONSC 3189, 383 C.R.R. (2d) 161; R. v. Yusuf, 2011 BCSC 626; R. v. Mehanmal, 2012 ONCJ 681, 270 C.R.R. (2d) 271; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Liang v. Canada (Attorney General), 2014 BCCA 190, 355 B.C.A.C. 238; R. v. S. (R.), 2015 ONCA 291, 333 C.R.R. (2d) 160; R. v. Simmonds, 2018 BCCA 205, 362 C.C.C. (3d) 215; R. v. Wilson, 2011 ONSC 89, 225 C.R.R. (2d) 234; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Cross, 2006 NSCA 30, 241 N.S.R. (2d) 349; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163; Canada (Attorney General) v. Lewis, 2015 ONCA 379, 126 O.R. (3d) 289; Nucci v. Canada (Attorney General), 2015 MBCA 122, 333 C.C.C. (3d) 221; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. D.H., 2017 ONCJ 51; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Dunn, [1995] 1 S.C.R. 226; Carter v. The Queen, [1986] 1 S.C.R. 981; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Kelly, [1992] 2 S.C.R. 170; R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217; Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; R. v. S.A.C., 2008 SCC 47, [2008] 2 S.C.R. 675; R. v. Docherty, [2016] UKSC 62, [2017] 4 All E.R. 263; X. v. Federal Republic of Germany, Application No. 7900/77, March 6, 1978, D.R. 13, p. 70; Scoppola v. Italy (No. 2) (2010), 51 E.H.R.R. 12; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Klemenz, 2015 SKCA 89, 465 Sask. R. 134; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Dubois, Que. Sup. Ct., December 8, 1982; R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149.
By Karakatsanis J. (dissenting)
R. v. L. (J.‑J.), [1998] R.J.Q. 971; R. v. Belzil, [1989] R.J.Q. 1117; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Cadman, 2018 BCCA 100, 359 C.C.C. (3d) 427; R. v. A.E.S., 2018 BCCA 478, 369 C.C.C. (3d) 92; R. v. Yusuf, 2011 BCSC 626; R. v. G.C.D., 2011 MBQB 235, 271 Man. R. (2d) 41; R. v. Mehanmal, 2012 ONCJ 681, 270 C.R.R. (2d) 271; R. v. Leroux, 2015 SKCA 48, 460 Sask. R. 1; R. v. E.H., 2009 NLTD 62, 285 Nfld. & P.E.I.R. 78; R. v. Palacios, 2012 ONCJ 195; R. v. Simmonds, 2018 BCCA 205, 415 C.R.R. (2d) 88; R. v. F.C., 2018 ONSC 561; R. v. Boudreau, 2012 ONCJ 322; R. v. D.P., 2014 ONSC 386; R. v. Bent, 2017 ONSC 3189, 383 C.R.R. (2d) 161; R. v. Docherty, [2016] UKSC 62, [2017] 4 All E.R. 263; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Black‑Clawson International Ltd. v. Papierwerke Waldhof‑Aschaffenburg A.G., [1975] A.C. 591; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
Statutes and Regulations Cited
Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 3.
Canadian Bill of Rights, S.C. 1960, c. 44 .
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 10(b) 11, 12.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 157 [rep. & sub. c. 19 (3rd Supp.), s. 4], 246.1(1)(a).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 151 , 161(1) (c), 271 , 718.1 , 718.2 (b), (d), (e), 742.1 [ad. S.C. 1995, c. 22, s. 6; sub. S.C. 2012, c. 1, s. 34].
Interpretation Act, R.S.C. 1985, c. I‑21, ss. 43 , 44 (e) [previously S.C. 1967‑68, c. 7, s. 37(e)].
Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 40(1) , 76 .
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [the European Convention on Human Rights], art. 7 .
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 15(1).
Authors Cited
Canada. Meeting of Officials on the Constitution. Canadian Charter of Rights and Freedoms (Draft for Discussion Purposes Only), div. III. Ottawa, 1979.
Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 47, 1st Sess., 32nd Parl., January 28, 1981, pp. 65‑69.
Canada. The Canadian Constitution 1980: Proposed Resolution respecting the Constitution of Canada. Ottawa: Government of Canada, 1980.
Canada. The Right Honourable Pierre Elliott Trudeau. The Constitution and the People of Canada: An approach to the Objectives of Confederation, the Rights of People and the Institutions of Government. Ottawa: Queen’s Printer, 1969.
Canadian Oxford Dictionary, 2nd ed. by Katherine Barber, ed. Don Mills, Ont.: Oxford University Press, 2004, “lesser”.
Chevrette, François, Hugo Cyr and François Tanguay‑Renaud. “La protection lors de l’arrestation, la détention et la protection contre l’incrimination rétroactive”, in Gérald‑A. Beaudoin and Errol Mendes, eds., Canadian Charter of Rights and Freedoms , 4th ed. Markham, Ont.: LexisNexis Butterworths, 2005.
Collins Canadian Dictionary. Toronto: HarperCollins, 2010, “lesser”.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2018, release 1).
McLeod, Roderick M., et al. The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 4. Toronto: Carswell, 1983 (loose‑leaf updated 2019, release 5).
Petit Robert: dictionnaire alphabétique et analogique de la langue française, nouvelle éd. Paris: Le Robert, 2012, “le moins”.
Vauclair, Martin and Tristan Desjardins. Traité général de preuve et de procédure pénales, 26e éd. Montréal: Yvon Blais, 2019.
Westen, Peter. “Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert” (2015), 18 New Crim. L. Rev. 167.
MOTION to proceed with the appeal despite the respondent’s death. Motion allowed, Abella, Karakatsanis and Brown JJ. dissenting.
APPEAL from a judgment of the Quebec Court of Appeal (Dutil, St‑Pierre and Mainville JJ.A.), 2018 QCCA 21, 43 C.R. (7th) 216, [2018] AZ‑51456758, [2018] J.Q. no 73 (QL), 2018 CarswellQue 55 (WL Can.), affirming the sentencing decision of Vanchestein J., 2017 QCCQ 7015, [2017] AZ‑51400728, [2017] J.Q. no 8287 (QL), 2017 CarswellQue 6146 (WL Can.). Appeal allowed, Abella, Karakatsanis and Brown JJ. dissenting.
Maxime Hébrard and Sylvie Villeneuve, for the appellant.
Nicolas Lemyre‑Cossette and Lida Sara Nouraie, for the respondent.
Michael Perlin and Kathleen Farrell, for the intervener the Attorney General of Ontario.
Gabriel Babineau and Vincent Paquet, for the intervener Association québécoise des avocats et avocates de la défense.
Breana Vandebeek and Marianne Salih, for the intervener the Criminal Lawyers’ Association.
The judgment of Wagner C.J. and Moldaver, Côté and Martin JJ. was delivered by
Martin J. —
I. Overview
[1] Every person charged with an offence in Canada enjoys certain basic rights. One such right is contained in s. 11(i) of the Canadian Charter of Rights and Freedoms (“Charter ”), which grants a person found guilty of an offence the right “to the benefit of the lesser punishment” “if the punishment . . . has been varied between the time of commission [of the offence] and the time of sentencing”. Relying on s. 11(i), the respondent Rosaire Poulin asserts the constitutional right to receive a conditional sentence. This punishment was not applicable under the laws in force when he committed his sexual offences between 1979 and 1987 or, according to the parties, when he was sentenced for those offences in 2017. However, it was applicable for a discrete period between those two times. In essence, Mr. Poulin argues that s. 11(i) entitles him not only to the lesser of the punishments under the laws in force at the time of his offences and the time of his sentencing but, further, to an even lesser punishment that was temporarily applicable to his offences during the decades that elapsed before he was held accountable for his crimes. Mr. Poulin claims the right to this punishment even though it bears no temporal connection to his offending conduct or to his sentencing, and even though the record does not show he took steps in reliance on this punishment in his interactions with the criminal justice system. Mr. Poulin did not, for instance, confess or enter a plea when a conditional sentence was applicable to his offences.
[2] This appeal therefore asks to what an offender is entitled under s. 11(i) of the Charter . Based on the nature and purposes of this particular constitutional right, which punishments are to be considered when determining the “lesser” one to which the accused is entitled? Does s. 11(i) confer:
- a “binary” right — which 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; or
- a “global” right — which 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?
[3] I conclude that, properly interpreted, s. 11(i) confers a binary right, not a global one. Section 11(i) entitles an offender to the lesser of (1) the punishment under the laws in force when the offender committed the offence, and (2) the punishment under the laws in force when the offender is sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk the offender took by offending. That punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment that society considers just at the precise moment the court is called upon to pass a sentence. 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. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to have the constitutional right to receive the lesser of the punishments at these two points in time.
[4] By contrast, there is no principled basis for offenders to enjoy the automatic constitutional right to a previous punishment which is lower than both the one to which they exposed themselves when they committed the offence and the one that reflects society’s current sense of the gravity of the offence and the responsibility of the offenders. Reading s. 11(i) in a manner that would grant an offender the right to the most lenient punishment that existed for the offence at any point between its commission and sentencing would both exceed and distort the purposes of s. 11(i). As I will explain, these purposes are the rule of law and fairness. Far from supporting a global reading of s. 11(i), these purposes strongly militate towards reading s. 11(i) in a manner that sets the applicable punishment at the time of the offence as the ceiling, and entitles the offender to a more clement punishment under the laws in force at the time of sentencing, if one exists.
[5] As a result, I conclude that s. 11(i) does not resurrect any temporary reductions in punishment which came after the offence and which bear no connection whatsoever to the offender’s conduct or to contemporary sentencing standards. By granting the offender specific retrospective access to the applicable punishment at the time of the offence, s. 11(i) need not and does not open the door to the lowest identifiable punishment that has ever applied to the offence since the offender committed it. Section 11(i) did not constitutionalize the right to past punishments that Parliament has since discarded or amended. The legal rights reflected 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.
[6] I would therefore allow the Crown’s appeal. Mr. Poulin was not eligible for the conditional sentence imposed on him as it was not applicable to his offences under the sentencing provisions in force either at the time of commission or, according to the parties, of his sentencing. However, given Mr. Poulin’s recent death, I decline to pass a different sentence or remit the matter for sentencing.
II. Facts and Judicial History
[7] In 2016, Mr. Poulin was found guilty of historical sexual offences: two counts of gross indecency and one count of sexual assault, contrary to ss. 157 and 246.1(1)(a) of the Criminal Code, R.S.C. 1970, c. C‑34. Mr. Poulin committed the offences of gross indecency between 1979 and 1983 and the offence of sexual assault between 1983 and 1987 when the complainant was 7 to 15 years old and Mr. Poulin was 44 to 51 years old.
[8] By the time of his sentencing, Mr. Poulin was 82 years old and suffering from a number of significant health problems. At his sentencing hearing, Mr. Poulin conceded that a prison sentence of three and a half years would be appropriate for his crimes. However, he argued that, exceptionally, he should receive a conditional sentence — i.e. a sentence of less than two years, to be served in the community — because of his health problems.
[9] The sentencing judge accepted Mr. Poulin’s position and sentenced him to a conditional sentence of two years less a day for the two counts of gross indecency. This is the sentence at issue in this appeal. The sentence imposed for the count of sexual assault — a suspended sentence with two years’ probation, together with ancillary orders — is not at issue.
[10] Conditional sentences did not exist when Mr. Poulin committed his acts of gross indecency. The conditional sentence entered into force as a form of sentence in 1996 (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6). The parties agree that a conditional sentence was no longer applicable to the offence of gross indecency, according to the provisions in force, by the time Mr. Poulin was charged, convicted and sentenced (2014 to 2017). Their view is that, when gross indecency was repealed from the Criminal Code, R.S.C. 1985, c. C‑46 , in 1988 (R.S.C. 1985, c. 19 (3rd Supp.), s. 4 , which came into force in 1988), some conduct that had amounted to gross indecency, including Mr. Poulin’s, was now captured under other sexual offence provisions, such as ss. 151 and 271 of the Criminal Code . Since conditional sentences have been made statutorily unavailable for such sexual offences (see Criminal Code, ss. 742.1 (b), 151 and 271 ), the parties consider the conditional sentence to have equally been made unavailable for the indictable acts of gross indecency that are now criminalized under these modern sexual offences. Put differently, the parties agree that the current restriction on conditional sentences for sexual offences extends to Mr. Poulin’s offences of gross indecency. I do not comment on this interpretation as it is not an issue that has been raised before this Court.
[11] The sentencing judge did not analyze the threshold question of whether a conditional sentence was actually available for Mr. Poulin’s gross indecencies. Rather, the judge considered that s. 11(i) entitled Mr. Poulin to the benefit of a lesser sentence that was applicable to his offences in the interval between their commission and sentencing (2017 QCCQ 7015, at paras. 26‑27 (CanLII)).
[12] The Crown appealed, arguing, among other things, that a conditional sentence was not available to Mr. Poulin under s. 11(i) of the Charter . The Court of Appeal rejected the Crown’s argument. It applied its earlier decision in R. v. Belzil, [1989] R.J.Q. 1117 (C.A.), which took for granted that s. 11(i) confers a global right (2018 QCCA 21, 43 C.R. (7th) 216, at paras. 32‑33; Belzil, at p. 1139). Thus, the Court of Appeal held that s. 11(i) gave Mr. Poulin the right to a sentence that was not on the books at the time of his offences, and that had been expressly repealed for his offences by the time of his sentencing.
[13] The Crown now appeals to this Court by leave.
[14] On February 22, 2019, shortly before the hearing of this appeal, Mr. Poulin 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.
III. Issues
[15] This appeal raises two issues:
A. Should this Court exercise its discretion to decide this moot appeal?
B. Does s. 11(i) of the Charter constitutionalize a binary or a global right?
IV. Analysis
A. Should This Court Exercise Its Discretion to Decide This Moot Appeal?
[16] As outlined above, Mr. Poulin passed away, a few weeks before the hearing of this appeal. Mr. Poulin’s death occurred after the appellant Crown had filed its factum and after this Court had granted leave to intervene to the interveners.
[17] Upon learning of Mr. Poulin’s death, the Crown filed a motion to proceed with its appeal, in accordance with s. 76 of the Supreme Court Act, R.S.C. 1985, c. S‑26 . Mr. Poulin’s counsel wrote to the Crown saying that he would proceed to file the respondent’s appeal materials by the deadline applicable to Mr. Poulin, which he ultimately did. Mr. Poulin’s counsel later provided affidavit evidence confirming that Mr. Poulin’s executor had instructed Mr. Poulin’s counsel to continue representing Mr. Poulin’s position on this appeal should this Court decide to hear it. The Crown’s motion to proceed with the appeal was heard alongside the appeal. Mr. Poulin’s counsel did not take a position on the motion to proceed.
[18] The Crown appropriately concedes that this appeal is moot in light of Mr. Poulin’s death. However, the Crown argues that this Court should exercise its discretion to adjudicate this appeal despite its mootness. I agree.
[19] In R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, this Court set out five (non‑exhaustive) factors for determining whether there are exceptional circumstances warranting the adjudication of an appeal rendered moot by the accused’s death. These factors are:
1. whether the appeal will proceed in a proper adversarial context;
2. the strength of the grounds of the appeal;
3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(b) a systemic issue related to the administration of justice;
(c) collateral consequences to the family of the deceased or to other interested persons or to the public;
4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the Court in free‑standing, legislative‑type pronouncements more properly left to the legislature itself. [para. 50]
[20] Overall, these factors militate towards adjudicating the Crown’s appeal.
[21] First, despite Mr. Poulin’s death, Mr. Poulin’s counsel submitted a full‑length factum advancing Mr. Poulin’s position and advocated for that position at the hearing of this appeal. The interveners the Criminal Lawyers’ Association (“CLA”) and the Association québécoise des avocats et avocates de la défense (“AQAAD”) also provided the Court with perspectives aligned with Mr. Poulin’s. Thus, this Court has had the benefit of adversarial submissions in this case.
[22] Second, the appellant’s case is clearly more than “arguable” (see R. v. MacLellan, 2019 NSCA 2, 369 C.C.C. (3d) 482, at para. 96). The Crown’s appeal raises an important constitutional question that has not yet received comprehensive treatment in the jurisprudence. Indeed, the Crown points out that the existing s. 11(i) decisions addressing the binary/global question, while consistent, do not engage with, let alone identify, the underlying purposes of the right. This is a critical shortcoming because, as discussed below, the interpretation of a Charter right hinges on the right’s purposes. There is, accordingly, “real substance” to the Crown’s appeal and the Crown raises a serious issue (ibid.).
[23] Third, the proper interpretation of s. 11(i) is “a legal issue of general public importance” which “transcend[s] the death” of Mr. Poulin. The binary/global question is the sole question on appeal in this case. By granting leave to appeal, this Court signalled that it considers the binary/global question to be of public importance and to merit closer analysis (see Supreme Court Act, s. 40(1) ). Further, and unlike in Smith, the question in this appeal is not restricted to the facts of the case. To the contrary, the proper interpretation of this Charter provision engages a systemic issue related to the administration of justice, since s. 11(i) applies to all sentencing proceedings. As a result, the Crown, acting on behalf of the public, has a strong interest in seeing the question resolved (see Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, at p. 97). Moreover, this appeal has meaningful collateral consequences; the proper interpretation of s. 11(i) touches not only all persons found guilty of offences and their families, but also all persons interested in the sentencing of those offenders — which extends beyond victims and their loved ones to society at large. As such, it is “in the public interest to address the merits in order to settle the state of the law” (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 364).
[24] Fourth, the value of this Court’s ruling on the proper interpretation of s. 11(i) clearly outweighs any concerns about limited judicial resources. At this stage and in these circumstances, the option most respectful of all participants’ resources is to decide the appeal. While a decision not to adjudicate this appeal might save this Court some resources in the short term, it would undoubtedly cost other courts and justice system participants additional resources in the longer term. It is much more efficient and fair for this 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 this Court anew. There is a clear “social cost in leaving the matter undecided” which outweighs any small cost to this Court associated with deciding the appeal (Borowski, at pp. 361‑62).
[25] Fifth, and finally, it is for the courts, not Parliament, to define the scope of Charter rights. Unlike in Borowski, this Court would not be intruding on the legislative role by answering the question put to it.
[26] Based on these five factors, I am satisfied that there is “a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice” (Smith, at para. 4; see also para. 50). The Crown’s factum, filed prior to Mr. Poulin’s death, is exclusively concerned with the proper interpretation of s. 11(i), and not the sentencing of Mr. Poulin per se. This demonstrates that this appeal raises a pure question of law that stands on its own, independent of the now moot factual context that initially gave rise to it. Indeed, it bears almost all of the hallmarks of an appeal warranting adjudication despite its mootness: it is of “importance to the administration of criminal justice”; has “a constitutional dimension”; requires “the interpretation of a statutory provision . . . of frequent application”; and involves a matter “in the daily business of our trial courts” (R. v. Beaton, 2018 ONCA 924, at para. 14 (CanLII)). This is therefore one of those “rare and exceptional” cases in which the Court ought to exercise its discretion to adjudicate a moot criminal appeal (Smith, at para. 10). I would grant the motion to proceed with the appeal.
[27] In these reasons, I refer to the position advanced on behalf of Mr. Poulin as “Mr. Poulin’s position”, despite his death.
B. Does Section 11(i) of the Charter Constitutionalize a Binary or a Global Right?
[28] Section 11(i) of the Charter sits within a larger provision that protects “crucial fundamental rights” of the accused (R. v. Wigglesworth, [1987] 2 S.C.R. 541, at p. 558, per Wilson J.). Among the rights enshrined in s. 11 are the right to be presumed innocent (s. 11(d) ); the right to a trial within a reasonable time (s. 11(b) ); the right to trial by jury for certain serious offences (s. 11(f) ); the right not to be compelled to be a witness against oneself (s. 11(c) ); and the right not to be denied reasonable bail without just cause (s. 11(e) ).
[29] Section 11(i) of the Charter 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.
[30] The appellant Crown and the intervener the Attorney General of Ontario argue that s. 11(i) confe