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R v. Poulin - P. Gutowski

Revising Canadian Courts’ Interpretation of Sentencing Rights

A majority of the Supreme Court of Canada issued a decision on s. 11(i) of the Canadian Charter of Rights and Freedoms that conflicts with 30 years of Canadian jurisprudence.[1] In R v Poulin, the SCC held that s. 11(i) confers a binary, not global right. As a result, the defendant was entitled to the lesser of two sentences, either the one which was in effect when the offence was committed or the one available at the time of sentencing, but not to any that were available in the interim.

In 2016, Poulin was found guilty of gross indecency and sexually assaulting his nephew, a minor at the time, between 1979 and 1987. Poulin received a conditional sentence of two years less a day for two counts of gross indecency. This punishment was not available when the offences occurred, nor was it applicable to the relevant offences when Poulin was charged. Conditional sentences were available for a time as a form of punishment for gross indecency in the interim. Despite having passed away, the SCC moved forward with the appeal.

The court grappled with how to interpret s. 11(i) of the Charter, which states, “Any person charged with an offence has the right: 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.”[2] Two competing interpretations were considered, that the section protects either a binary right or a global right.

Reading s.11(i) as conferring a binary right provides an accused the right to compare the punishments for a crime available at two points in time. In this case, Poulin would have had the benefit of being sentenced according to the guidelines effective at the time he committed the offence or at the time he was being sentenced. As a result, the conditional sentence he received would not be available. Alternately, if s. 11(i) conferred a global right, he would have been entitled to benefitting from the least severe punishment that existed at any instance between those two points in time. This would include the conditional sentences made available in 1996.

When reading criminal law statutes, “a provision bearing more than one plausible meaning must be read in a manner that favours the accused”.[3] Naturally, lower courts have approached s.11(i) with this mindset and have applied it as a global right. This position will now be reversed. The majority in R v Poulin emphasized the importance of applying a purposive analysis to Charter rights. In doing so, it distinguished this interpretive approach from the principle of generous interpretation that courts apply when reading penal statutes. The majority clearly rejected the notion that Charter interpretation also includes this principle.

The purposive approach to analysis is appropriate considering the need for flexibility in Charter analysis. The Constitution must be able to adapt to changes in society. In determining the purpose of the right, the majority discussed the language of the section, common law history, and the rationale for Parliament’s extension of the common law protection.

The majority pointed to the fact that the language of s. 11(i) uses the word “lesser”[4] instead of least, which points to a comparison of two options. Furthermore, it rejected that the word “between”[5] supports the creation of a global right. Martin J then proceeded to describe the origin of the right. Before the Charter, the common law principle was that an offender would not be subject to punishments greater than what existed at the time he or she committed the offence.[6] Initial drafts copied this rule and later extended it, but not to the extent that the drafters indicated an intention to create a global right.


Finally, Martin J argued that the purposes of s. 11(i), the rule of law and fairness, indicate that it confers a binary right. Martin stated that it is neither unfair, nor arbitrary, to punish an offender based on the more favourable of two laws. It was held that the time the offence was committed, and the time of sentencing are “linked” and “bear a deep connection to the offender’s conduct and criminality.”[7] It would be less sensible to allow an accused to shop around for punishments that bear no relation to their actions or trial.


Importantly, Martin stated that a global approach would “have the effect of resurrecting punishments which Parliament has, by repealing or amending them, expressly rejected”.[8] Clearly, the right is meant to protect offenders from being punished excessively for actions society has found to be less egregious over time, while also preventing individuals from being punished more severely than they could have expected at the time of the offence. Criminal punishments involve greater stigma, therefore information regarding laws and consequences need to be knowable ahead of time.


The dissent sided with the years of Canadian jurisprudence that found s. 11(i) to confer a global right to offenders. What is perhaps the dissent’s most valuable caution is the concern with a binary approach not allowing an offender to be sentenced according to provisions that they had relied on when constructing their defense. Investigations and trials often take place over long periods of time. The fear is that Parliament may change the relevant law in the meantime, which would be unfair to the offender.


A rigid understanding of the binary nature of the right can lead to such an absurd result. The majority considered this issue, and Martin stated that the fact the law had to be effective at the time of sentencing will not necessarily extend to all cases. I believe lower courts will consider sentences available from the time offenders are charged, up to the time they are sentenced, as this time period undoubtedly bears “a deep connection to the offender’s conduct and criminality.”[9]


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Endnotes [1] R v Poulin, 2019 SCC 47 at para 137 [Poulin]. [2] Canadian Charter of Rights and Freedoms, s 11, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [3] Poulin, supra note 1 at para 55. [4] Charter s 11 supra note 2. [5] Ibid. [6] Poulin supra note 1 at para 58. [7] Ibid at para 90. [8] Ibid at para 100. [9] Ibid at para 90.

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Resistance and the Law

Robson Crim is committed to criminal law education at Robson Hall & to public legal education; Richard Jochelson, Amar Khoday, David Ireland & David Milward reflect on new Canadian criminal law developments.

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