R v. Poulin: Charter Right to the Lesser of Two Punishments Not the Lesser of Many
Updated: Oct 25
Author: I Faisal-Ismail
In 2016 Mr. Poulin was found guilty of sexual offences he committed in 1979 and 1987 against two minors who were 7 and 15 years old while Poulin himself was 44 and 51 years old. At the time of his sentencing, Mr. Poulin was old and sick, he was suffering from a degenerative neurological disorder and was living in a full-time care facility. Because of his condition he requested a conditional sentence, an option that became available in 1996, meaning that it was not in effect when the offences were committed or at the time of sentencing. The Quebec Court agreed, and the crown appealed unsuccessfully.
To make his argument, Mr. Poulin relied on section 11 of the Charter which guarantees any convicted accused the benefit of the lesser punishment if there were any variations between the time of the offence and the time of sentencing. The case appeared before the Supreme Court on the same argument. It is understandable why section 11 of the Charter requires clarification from the highest court of the land as it can be interpreted in two ways. The first approach would interpret the section to include all changes in the law between the time the offence was committed and the time of sentencing.
The Supreme Court judgment refers to this as the ‘global approach’. This is what Mr. Poulin and his counsel subscribe to as well as the approach taken by the courts in previous cases. Equally as logical is the approach which would take a narrower interpretation of section 11. It would take it to only refer to potential variation at the time the offence was committed and at the time of sentencing. This is referred to in the judgement as the ‘binary approach’.
Ultimately the Supreme Court went with the latter. A majority decision authored by Martin J, decided that Mr. Poulin (who had passed away at this point) was not entitled to a conditional sentence because it was not available at the time, he committed the offence and it was no longer available for gross indecency offences according to provisions in force by the time he was charged, convicted and sentenced.
The majority rejected what they referred to as the “generous approach” to Charter interpretation employed by lower courts which gives the most generous interpretation to the accused. The majority argues this method of interpretation is more appropriate for penal statues, the charter on the other hand should be interpreted purposively- i.e. in a manner that is justified by its purpose.
The majority then engaged in a historical and contextual analysis to analyze the language of section 11. They state that there is nothing in the historical context to suggest that section 11 was inspired by a global right since such an idea was not part of the legal landscape at the time. According to Justice Martin writing for the majority, section 11 balances two principles: the rule of law and fairness. A common law rule that an offender should not be retrospectively be subjected to a harsher punishment than the one applicable at the time of the offence respects the rule of law allowing individuals to rely on the state of the law as it was at the material time and not risk being held to a stricter standard. Section 11 goes one step further and enshrines an additional protection which engages fairness by allowing the accused to benefit from a more favourable punishment where one exists at the time of sentencing. It would be unfair to subject an accused to punishment Parliament no longer deems appropriate and no longer reflects contemporary societal values.
A binary interpretation according to the majority is the fairest option because both of the possible punishments are linked to the offender and the proceedings relating to his offence: one reflects the state of the law at the time of the offence and the other reflects a more favourable law that reflects society’s view of the seriousness of the crime.
The case also comes with a very strong dissent which is mostly concerned with how the majority’s interpretation will diminish the right outlined in section 11. Justice Karakatsanis, writing for the dissent argues that there are several points in the course of a criminal investigation before the actual sentencing happens at which an accused may be required to make choices in light of punishments applicable then. In her view, the protection offered by section 11 is grounded by this very possibility and so cannot be contingent on evidence that the accused relied on the existing law. She also takes issue with the majority’s assertion that one of the purposes of section 11 is to have the punishment reflect contemporary society’s view of the crime because this would confuse fairness with availability of a punishment.
The judgement comes as a troubling surprise. Firstly, the case was heard despite the fact that one of the parties is deceased meaning that no real justice can be served by allowing the appeal. And while any charter litigation is certainly important, there is nothing to suggest that the case should survive the accused’s death. Secondly to establish their interpretation, the majority went against 30 years of decisions thus rendering 30 years of perfectly reasonable and consistent case law obsolete. In doing all of that the majority came up with an interpretation that seems to be applied rather arbitrarily. If we are to say that it is a possibility that an offender relied on the sentencing provisions at the time they committed the offence then why could we not say that it is a possibility that an accused relied on the law in relation to their offence at any point in time between committing the offence and the time of sentencing?
At the very least, it is not guaranteed that an accused relied on the law at the time of committing the offence. This reliance is central to the majority definition of fairness and it is for the most part what informs their interpretation.
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