Section 11(i) – Lesser punishment

Provision

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

  1. 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.

Similar provisions

There are similar or related rights in the following international instruments binding on Canada: Article 15(1) of the International Covenant on Civil and Political Rights, and Article XXVI of the American Declaration of the Rights and Duties of Man.

A similar understanding of the term “punishment” should apply to both sections 11(h) and 11(i): “harmony between s. 11 (i) and (h) is desirable as fairness in punishment underlies both provisions” (R. v. K.R.J., [2016] 1 S.C.R. 906 at paragraph 39; R. v. Rodgers, [2006] 1 S.C.R. 554). The definition of “punishment” that has been developed in the context of ss. 11(h) and (i) also applies when interpreting that term under section 12 (R. v. Boudreault, [2018] 3 S.C.R. 599 at paragraph 38). Note that the protection of section 12 extends to “treatment” in addition to punishment (Rodgers, supra, paragraph 63).

Section 11(g) of the Charter also has a temporal aspect, providing a right not to be found guilty for an act or omission unless it constituted an offence at the time of the act or omission.

The Supreme Court also has interpreted section 11(h) of the Charter (double jeopardy) to provide protection against “retrospective changes to the conditions of the original sanction which have the effect of adding to the offender's punishment” (Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392 at paragraph 44).

Residual rights in respect of the retroactive or retrospective application of law may apply under section 7 of the Charter in situations where life, liberty or security of the person are at stake (Gamble v. The Queen, [1988] 2 S.C.R. 595; Cunningham v. Canada, [1993] 2 S.C.R. 143).

A statutory interpretive provision of an analogous nature is found in paragraph 44(e) of the Interpretation Act, RSC 1985, c I-21. As well, there exist common law interpretive presumptions against retrospective and retroactive operation of statutes and against interference with vested rights. These presumptions are of varying weight and, unlike section 11(i) and other constitutional restrictions, can be displaced by explicit terms of legislation or by the necessary implication of the legislation’s provisions. Subject to the restrictions in the Charter, there is no general constitutional restriction against legislative retrospectivity or retroactivity (British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473).

The Supreme Court recently considered in some detail the common law and statutory rules of temporal application, as well as temporal application principles under international law instruments, in determining the extent of protection provided by section 11(i) (R. v. Poulin, 2019 SCC 47).

Purpose

Section 11(i), along with section 11(g), “constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively,” because “people’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at the time” (K.R.J., supra at paragraphs 1, 22). This “is rooted in values fundamental to our legal system, including respect for the rule of law and ensuring fairness in criminal proceedings” (K.R.J., supra at paragraph 27; see also Poulin, supra). Retrospective criminal laws prevent individuals from reliably foreseeing the consequences of their action, undercut the perceived integrity of the current law, are perceived as unfair, and can thereby undermine public confidence in the administration of justice (K.R.J., supra at paragraphs 23-25).

Both sections 11(i) and 11(g) “express society's repudiation of retroactive punishment, broadly defined — of retroactive legislation establishing a criminal offence in the case of section 11(g), and of retroactive legislation under which a harsher penalty would apply to an offence committed before its enactment in the case of s. 11(i)” (Whaling, supra at paragraph 55).

Analysis

Section 11(i) applies only to a person who has been “charged with an offence”. This follows from the opening words of section 11. For guidance on this requirement, please refer to the general section 11 entry.

1. Nature of the right protected by section 11(i)

Section 11(i) is engaged where a person has been “found guilty of the offence”. Where section 11(i) is engaged, it provides that a person is entitled “to the benefit of the lesser punishment” if “the punishment for the offence has been varied between the time of commission and the time of sentencing.”

Four main issues have arisen so far in applying section 11(i). First, what kind of measures constitute “punishment” for the purpose of section 11(i) such that retrospective increases to their severity would infringe section 11(i)? Second, does this right apply where changes are made to the punishment for a similar but not necessarily identical offence? Third, what is the "time of commission"? Fourth, what does it mean for the punishment to have been “varied”, and how does one determine the “lesser punishment”?

2. Is the measure at issue a “punishment”?

The Supreme Court has taken a “liberal and purposive” approach to the term “punishment” in section 11(i), and has indicated that it cannot be limited to “imprisonment and heavy fines” imposed upon conviction for an offence (Rodgers, [2006] 1 S.C.R. 554 at paragraph 59). At the same time, the term punishment does not encompass “every potential consequence of being convicted of a criminal offence” (Rodgers, supra at paragraph 63, cited in K.R.J., supra at paragraph 29).

A measure will be a punishment if: “(1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests” (K.R.J., supra at paragraph 41).

This section will first provide additional information on each branch of the K.R.J. framework, before outlining the case law on whether specific kinds of measures amount to punishment.

(i) The K.R.J. framework

In order to be considered a punishment, a sanction must meet the first branch and either the second branch or the third branch. There is no need to meet all three.

The first branch reflects the ordinary sense of punishment as being “a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence” (Rodgers, supra at paragraphs 62-63).

There is little jurisprudence elaborating on this branch. It is clearly met by terms of imprisonment or heavy fines, and other sanctions that can (or must) be imposed by a sentencing judge in respect of a particular offence (see e.g., K.R.J., supra at paragraph 50; Rodgers, supra at paragraph 62). The Supreme Court has implied that other kinds of orders that can be made at the time of sentencing may also meet the first branch, such as forfeiture orders, firearm prohibitions, driving prohibitions, and restitution orders (Rodgers, supra at paragraph 63).

Changes to the general rules governing parole eligibility do not satisfy the first branch. They may affect the conditions under which an individual’s judicial sentence will be served, but such alterations to the general system are not (in and of themselves) among the arsenal of sanctions that can be imposed on an individual as a consequence of conviction (Whaling, supra at paragraph 50). However, Whaling indicates that to the extent that changes to parole eligibility can lengthen an individual’s period of incarceration while under sentence, they can amount to a change in the severity of an offender’s punishment, and thus implicate temporal rights under the Charter.

The second branch focuses on the underlying purpose of a sanction. To satisfy it, “a consequence of conviction must be imposed in furtherance of the purpose and principles of sentencing. … [T]he purpose of sentencing is to ‘protect society’ or advance ‘respect for the law and the maintenance of a just, peaceful and safe society’ (section 718 of the Criminal Code) by fulfilling one or more of the traditional sentencing objectives (ss. 718(a) through (f)) in accordance with the principles of sentencing reflected in ss. 718.1 and 718.2” (K.R.J., supra at paragraphs 32, 34).

The mere fact that a measure is aimed at public safety or protection does not exempt it from the scope of punishment, including under the second branch. Because public protection is an essential aspect of criminal sentencing, “sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11(i) affords and may qualify as punishment” (K.R.J., supra at paragraph 33).

In K.R.J., prohibition orders were held to meet the second branch because they are intended to accomplish such recognized sentencing objectives as separation from society, assisting in rehabilitation, and deterring re-offending. An additional consideration was that the orders are imposed through a “discretionary and flexible process” that “aligns with the principles of sentencing articulated in ss. 718.1 and 718.2” (K.R.J., supra at paragraph 52).

The third branch focuses on the impact of a measure on the individual. Even if a consequence of conviction does not meet the purpose-based test of the second branch, it will still be a punishment if “it has a significant impact on an offender’s liberty or security interests.” According to the Supreme Court, this requires “a significant impact on an offender’s constitutionally protected liberty or security interests”. Meeting this threshold requires that “a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public” (K.R.J., supra at paragraph 42, citing Hooyer, 2016 ONCA 44 at paragraph 45).

(ii) Whether specific kinds of measures amount to “punishment”

Clearly a term of imprisonment imposed on a convicted offender as part of his or her sentence would be considered punishment. So too would a fine imposed as a penalty for an offence. The Supreme Court has not directly established this in the context of section 11(i), but with respect to section 11(h) see Whaling, supra at paragraph 51: “Incarceration is … the most obvious example of punishment in the ‘arsenal of sanctions’ available under the Criminal Code. It and heavy fines are the benchmark sanctions against which other, less severe sanctions are assessed”. See also Rodgers, supra at paragraph 59.

The Supreme Court has recognized the following additional measures as punishments for the purpose of section 11(i):

The Supreme Court has held that a judicial order to gather a DNA sample from a convicted offender, pursuant to section 487.055 of the Criminal Code, does not amount to part of that offender’s punishment. First, “DNA sampling and analysis is no more part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence than the taking of a photograph or fingerprints” (Rodgers, supra at paragraph 65). Second, such orders are made to assist in the investigation of future crimes. They may have the “residual benefit” of deterring the offender but that is not their underlying purpose. (Rodgers, supra at paragraphs 64-65, K.R.J., supra at paragraphs 29, 53). Third, providing a DNA sample does not “meaningfully impair” liberty or security of the person (Rodgers, supra at paragraph 64; K.R.J., supra at paragraph 55, citing R. v. Hooyer, supra).

The Saskatchewan Court of Appeal has held that the word "punishment" refers to the legislatively fixed punishment and not to the range of sentences imposed by the courts. The section 11(i) right does not entitle an offender to benefit from a more lenient judicial attitude to punishment that may have existed at the time the offence was committed (R. v. R. D. (1996), 48 C.R. (4th) 90 (Sask. C.A.).

There is appellate-level authority on whether the following measures amount to part of the punishment for the purpose of section 11(i):

Without commenting on the merits of certain cases that had found particular measures not to be punishment prior to the restatement of the analytical framework in K.R.J., the Supreme Court did observe that those cases predated K.R.J. (Poulin, supra, paragraph 38).

Conditional sentencing orders became available as a sentencing option for certain criminal offences in 1996, although eligibility for them was somewhat restricted in 2007. The Supreme Court has found that the creation of this regime constituted a mitigation of the available punishment within the meaning of the analogous provisions of paragraph 44(e) of the Interpretation Act (R. v. R.A.R., [2000] 1 S.C.R. 163). Subsequently, when a section 11(i) issue regarding conditional sentencing was directly before the Supreme Court, the majority declined to rule on whether changes to the conditional sentencing regime constituted punishment under the Charter. Rather the majority ruled that offenders who committed offences prior to the enactment of the conditional sentence regime, but were sentenced after their eligibility was curtailed by the 2007 amendments, would not have a section 11(i) right to the regime as it stood in the interim period (thus making it unnecessary to determine whether the conditional sentencing that had been available was a variation in punishment; Poulin, supra, at paragraph 39).

3. Is the "offence" the same?

In Gamble, supra, Wilson J. stated that she was not persuaded that it would be appropriate to give a restrictive reading to section 11(i) such that it would apply only to changes in the punishment for the same offence, as opposed to situations where both the offence and punishment had changed. Wilson J., however, did not have to decide the question and expressly refrained from doing so.

Subsequently, the British Columbia Court of Appeal decided that for section 11(i) to apply, there must be a real correspondence between the offence as described previously and the offence having a lesser punishment. It found that there is no real correspondence between having sexual relations with a stepdaughter in violation of paragraph 153(1)(a) of the Criminal Code (now repealed) and the offence provided for in section 146 of the Code prohibiting sexual contact with a young person by a person in a position of trust or authority. The Court of Appeal also rejected the argument of there being a section 11(i) benefit due to the punishment having been, in effect, reduced to zero by the previous offence having been repealed (R. v. E.R. (1992), 77 C.C.C. (3d) 193 (B.C.C.A.)).

4. What is the “time of commission”?

This issue has not been addressed by the Supreme Court, and the case law from provincial appellate courts is mixed.

According to the Ontario Court of Appeal, the “time of commission” for the offence is the time that culpability attaches for an offence. In other words, the “time of commission” is the time when the person becomes “liable to be convicted for the offence” because “he or she has performed the required actus reus with the required mens rea. Criminal culpability exists from that point forward whether the offence is a continuing one or not” (Canada (Attorney General) v. Lalonde, 2016 ONCA 923 at paragraphs 15-17). Therefore, where a person has been found guilty of a conspiracy offence (or some other continuing offence that may “straddle” the date on which the available punishment was varied), the “time of commission” is the time when the person began to commit the offence, and not the time when that offence was completed or terminated (ibid. at paragraph 16).

However, appeal courts in Quebec and Saskatchewan have applied a different approach to continuing offences, appearing in brief reasons to have understood the “time of commission” to mean the time that the offence was completed (R. v. Pouliot, 2006 QCCA 643 at paragraph 4; R. v. V.I.C., 2005 SKCA 95 paragraph 11). Note the consideration of these decisions in Lalonde, supra at paragraphs 20-24.

5. Has the punishment been varied, and if so, what is the lesser punishment?

Section 11(i) gives the accused the benefit of the lesser punishment only if the variation in punishment occurs before sentencing. In this respect, the provision differs from Article 15(1) of the International Covenant on Civil and Political Rights, which extends the benefit of lesser punishment to any time after conviction (R. v. Milne, [1987] 2 S.C.R. 512).

The lesser punishment is identified through a comparison of the effects of the different punishments on the offender. According to the Supreme Court, “the ‘lesser punishment’ to which an accused is entitled” is deemed to be the “punishment with the less severe impact on the liberty or security of an offender” (K.R.J., supra at paragraph 40).

The maximum sentence that can be imposed on an offender at the time of sentencing “is limited by the maximum sentence available at the time of the commission of the offence.” Thus, in a case where the maximum sentence had increased from 7 to 14 years between the time of commission and the time of sentencing, the offender “could not receive a sentence greater than seven years” (Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289 at para. 37).

Even though the sentence imposed on an offender may be in line with current sentencing ranges and principles rather than those applied at the time of commission, section 11(i) is complied with as long as the actual sentence imposed is less than or equal to the maximum prescribed by law at the time of commission. Thus, in R. v. W.G., 1995 CanLII 4034 (Sask. C.A.), the accused committed sexual offences between 1972 and 1981. Several years later he was charged with these offences when the maximum punishment for sexual assault prescribed by the Criminal Code had increased from 5 to 10 years. He was sentenced to three years (in line with the sentencing ranges in effect at the time of sentencing) and thus received a lesser punishment than the maximum of 5 years prescribed at the time the offence was committed.

The BC Court of Appeal has held that the legislative enactment of mandatory aggravating factors in sentencing did not increase the severity of the punishment imposed on an offender, even though those factors were specifically referred to by the sentencing judge. The reason was that the legislative enactment merely codified and made mandatory aggravating factors that were already applied by courts as a matter of common law, well before the amendment came into force: “[t]hus, the judge did not impose a greater punishment because of any amendment to the Criminal Code made after [the offender] committed her offence” (R. v. Dunkers, 2018 BCCA 363 at para. 60).

Section 11(i) does not afford the right to any “lesser punishment” that was temporarily available in the time between the commission of the offence and sentencing for that offence. Thus, in cases where an offence was committed before a lesser punishment became available, and where sentencing occurred after that lesser punishment was eliminated, the offender would not have the benefit of the lesser punishment available in the interim period. Rather, section 11(i) provides a binary right, granting only the lesser of two punishments: that on the date of the offence and that on the date of sentencing (Poulin, supra).

It is unclear whether section 11(i) can come into play where a change in the legislation occurs while a matter is under appeal. Appellate courts are divided on this issue. Certain courts have found that section 11(i) applies only until the accused is sentenced at the trial level (R v. Luke (1994), 87 C.C.C. (3d) 121 (Ont. C.A.), leave to appeal to the SCC refused, [1994] S.C.C.A. No. 299; R. v. Bishop (1994), 94 C.C.C. (3d) 97 (Alta. C.A.)). Other courts have held that "time of sentencing" means once all appeals have been expended (R. v. Lusignan (1993), 79 C.C.C. (3d) 572, (N.S.C.A.); R. v. Dussault, [1993] A.Q. no 1219 (Que. C.A.) (QL); R. v. Dowd (1997), 120 C.C.C. (3d) 360 (N.B.C.A.); R. v. Olah (1997), 115 C.C.C. (3d) 389 (Ont. C.A.), leave to appeal refused, [1997] S.C.C.A. No. 549).

Section 1 considerations specific to this section

When assessing whether an infringement of a Charter right is justifiable under section 1, “the relevant frame of reference is not the overall scheme of the legislation, but the aspect of the law that is challenged” (Liang, supra at paragraph 48). Therefore, a section 1 justification in relation to an infringement of section 11(i) should focus on whether “the retrospective operation of the impugned law” [emphasis added] is justifiable. However, “the more general purpose” for the amendments at issue “informs the specific rationale for applying the amendments retrospectively” (K.R.J., supra at paragraph 62; see also R.S., supra at paragraph 39).

Courts have, on several occasions, rejected section 1 justifications that were based on the argument that retrospective application of the “new” or “amended” regime would be more effective than what was in place at the time the person’s offence was committed. According to the B.C. Court of Appeal, the “mere assertion that a previous regime has been suboptimal, and the new regime preferable, does not” necessarily suffice as a section 1 justification: “the fact the offender will receive a lesser punishment, and perhaps one that does not meet the objectives of the present sentencing regime, is exactly what s. 11(i) contemplates” (Liang, supra at paragraphs 59-60; R.S., supra at paragraph 43).

One way that section 11(i) limitations have been justified is by showing that changing social circumstances have required an existing provision to be updated or expanded, to maintain its effectiveness. In K.R.J., the retrospective application of the Criminal Code section 161(1)(d) prohibition order power was upheld as a justifiable infringement of section 11(i) in part because it was “directed at grave, emerging harms precipitated by a rapidly evolving social and technological context”, which were inadequately addressed by the version of the measure that was in place at the time the offender had committed his offences (paragraphs 101-114). In comparison, with respect to the section 161(1)(c) measure that was not upheld as justifiably retrospective, the majority held that “Parliament does not appear to have been responding to an emerging threat, or an evolving social context” (paragraph 83). In R. v. J.D., supra, the Ontario Court of Appeal rejected a section 1 justification for the retrospective application of the prohibition order powers under section 161(1)(a) and (b) as they did not fill a legislative gap that Parliament could not have earlier anticipated and nothing else in the legislative record provided a temporal justification for making the provisions retrospective.