The wheels of justice move slowly. So slowly sometimes, that their conclusion occurs after all practical considerations for the parties are finished.
The Supreme Court of Canada’s decision in R. v. Poulin is an example of this, with the defendant passing away within four months of the Court granting leave for appeal.
In case you were wondering, he did not have the opportunity to file his factum.
Prior to his demise, the Crown had unsuccessfully sought to bring a motion to suspend the execution of his conditional sentence. The conditional sentence provided by the trial judge was due to his advanced age of 82 years year old at the time of sentencing, and a number of health problems that would make incarceration challenging for him.
The trial judge stated,
 Given his age and his lack of a criminal record, it is clear that the accused does not represent a danger for the community. In addition, with respect to the objectives of deterrence and denunciation, the remarks of Twaddle J.A. remain relevant:
- As far as general deterrence is concerned, I doubt that any prospective offender would be encouraged to commit a similar crime by the imposition of a non-incarceratory sentence in this case. Such a person would surely not wish to qualify for lenient treatment by being struck down by disabling muscular dystrophy.
- That leaves denunciation as the remaining principle to be addressed. This principle usually requires a prison term for an offence of the kind involved here. We must not forget, however, that the punishment must fit the offender as well as the offence.
 The medical evidence adduced by the accused convinces the Court that his state of health is deteriorating significantly and that it has before it an exceptional case, which warrants the analysis of an exceptional solution.
 To reiterate the remarks of Twaddle J.A., “Justice without clemency, in appropriate circumstances, is injustice.”
However, conditional sentences for gross indecency did not exist when the defendant committed the two counts of gross indecency and one count of sexual assault, contrary to ss. 157 and 246.1(1)(a) of the Criminal Code, between 1979 and 1987. They were introduced in 1996 under Bill C-41, An Act to amend the criminal code (sentencing) and other Acts in consequence thereof,
Gross indecency was also repealed from the Criminal Code in 1998, as the term was defined in the Code itself and was effectively used to police consensual adult relationships. But much of the defendant’s conduct would still be captured by newer provisions, such as ss. 151 and 271. Bill C-32, An Act related to the repeal of section 159 of the Criminal Code, was intended to address some of the residual impacts of these provisions, the history of which were detailed in Halm v. Canada. However, this Bill has not moved past First Reading.
The defendant was charged, convicted and sentenced between 2014-2017. During this time and to the present, a conditional sentence was statutorily unavailable for these sexual offences, under ss. 742.1(b), 151 and 271).
The only reason for the Court’s deliberation in Poulin was a provision in the Charter which 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.
The Crown appealed the decision, claiming that the defendant did not have the right under this provision of the Charter to a conditional sentence.
The Quebec Court of Appeal denied this appeal, citing its own decision in R. v. Belzil. They interpreted this provision as protecting the accused from an increased sentence when legislative changes occur after the commission of an offence, which could theoretically occur as an abuse of executive or legislative power. The Quebec court cited the transitional provisions of s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976, and the Court’s decision in R. v. Gamble to support this position.
Consequently, even though it was only a temporary softening of a sentence during this period, the defendant in Poulin was entitled to receive the benefit of that lower penalty. Most appellate and trial courts across Canada have interpreted the provision in the same way, such as in R. v. Cadman, R. v. Bent, R. v. Yusuf, and R. v. Mehanmal. Only a single reported case, R. v. Dubois, Que. Sup. Ct., December 8, 1982, appears to interpret it differently.
The majority of the Court disagreed with this traditional position, stating,
 A purposive analysis of s. 11(i) leads me to conclude that it confers a binary right, not a global one. In particular, I find that the language and origins of s. 11(i) both confirm the purposes set out in K.R.J. — namely the rule of law and fairness — and indicate that s. 11(i) is intended to confer a binary right consistent with these purposes. It would not respect the purposes of s. 11(i) to read the right globally. Nor would it respect Parliament’s role in adapting sentencing provisions, or the courts’ role in crafting proportionate sentences under those provisions. While s. 11(i) embraces a degree of retrospectivity (in allowing the lesser current punishment to replace the harsher punishment at the time of the offence), this principled, purposive retrospectivity does not support an interpretation of s. 11(i) that embraces retrospectivity writ large.
To support this purposive interpretation, the majority cited a 1969 document by The Right Honourable P. E. Trudeau, The Constitution and the People of Canada: An Approach to the Objectives of Confederation, the Rights of People and the Institutions of Government, which contains a draft of what would become these provisions under the Charter,
(g) the right of a person not to be held guilty of an offence on account of any act or omission which at the time of its commission or omission did not constitute an offence, and the right of a person on being found guilty of an offence not to be subjected to a penalty heavier than the one applicable at the time the offence was committed;
[emphasis added by the court]
However, the majority ignores that the legislatures and political representatives that drafted the Charter deliberately omitted this language. They effectively are using outside historic documents to claim a purposive intention that provides a more restrictive Charter right. The fact that the common law contained a similar principle, that an offender should only face as heavy a punishment as they risked at the time of the offence, does nothing to address this interpretative shortcoming.
Although the majority claims that none of the previous decisions embarked in a purposive interpretation, the reality is that all of them do. It’s just that they employ the common principle that Charter rights should be construed broadly, and in this case, to benefit the accused [Bent at paras 78-79 (cited in Cadman at para 37); Yusuf at paras 29-30; Mehenmal at paras 66, 74-77].
Notably, these courts also make reference to the applicable Interpretation Act [Bent at paras 44, 72, 77-78; Mehanmal at para 77]. In doing so, the majority imposes their preferred approach to interpretation above that of the legislature.
The majority also attempts to bolster its purposive approach through reference to the European Convention on Human Rights, which was entered into force on Sept. 3, 1953, and states in Article 7,
(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
[emphasis added by the court]
Canada is not a signatory to this Convention, but it has played a significant role in the development and interpretation of the Charter.
The Court in R. v. Oakes makes reference to the Convention in the context of reverse onuses at paras 54-55, but does so again to provide a broad and liberal interpretation of the Charter. At para 63, the Court explained the dual functions of s. 1, to guarantee the rights and freedoms in the Charter, and to provide exclusive justificatory criteria.
In citing this dual function, the Court in Slaight Communications Inc. v. Davidson conceded that international human rights obligations should inform not only the guaranteed rights in the Charter, but also what are the justifiable restrictions under s. 1,
 …the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a State Party, should generally be
indicative of a high degree of importance attached to that objective. This is consistent with the importance that this Court has placed on the protection of employees as a vulnerable group in society.
However, the contents of European Convention can only be described as a floor or minimum rights to an accused, and not a justification for failing to provide a lesser sentence [see also, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia at para 39]. The Court in Suresh v. Canada also elaborated on how international law can impact Canadian law,
 The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada’s international obligations and values as expressed in “[t]he various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms”…
 International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.
The majority in Poulin effectively take this floor argument and turn it into a ceiling. Although theoretically this could be possible to create these limitations under the Charter, the proper way to do so would be under a s. 1 limitation to s. 11 as in R. v. Stone, utilizing the dual purpose of the provision, and not as a muddled attempt to provide a purposive interpretation.
Further support for this approach can be found in the Court’s decision in R. v. Hape, which discusses the an adoptionist approach to the reception of customary international law,
 Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.
Even if the majority in Poulin were to find a global interpretation of s. 11(i) of the Charter to be inconsistent with customary international law, the express provisions of the Charter still suggest a more expansive interpretation. The historic context they point to, with additional wording that was deliberately omitted by the legislature, only bolsters that argument.
The strongest argument afforded by the majority is the constraints placed on purposive interpretation, found in R. v. Grant,
 Constitutional guarantees such as ss. 9 and 10 should be interpreted in a “generous rather than . . . legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC),  1 S.C.R. 295, at p. 344). Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to “subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62,  3 S.C.R. 3, at para. 23).
 While the twin principles of purposive and generous interpretation are related and sometimes conflated, they are not the same. The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at pp. 36-30 and 36-31). While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes. In brief, we must construe the language of ss. 9 and 10 in a generous way that furthers, without overshooting, its purpose: Big M Drug Mart, at p. 344.
However, the manner in which the Court did this in Grant was to examine the context that ss. 9 and 10 play in conjunction with related protections in the Charter. They did not use historic documents and international treaties to read words into the Charter to provide a more restrictive meaning.
What this decision likely reflects is a reaction from the Court to criticisms from certain segments of the bar and society that the application of the Charter has grown too far. This possibility is strengthened by the dissent’s position of the mootness of the appeal and the lack of a real adversarial context. In other words, this decision may be a decision to set the groundwork for decisions to come.
The Court, in responding to these concerns, may be attempting to trim the living tree that is our constitution, which may in fact be warranted. Doing so must proceed in a logically consistent and coherent manner, and not one that disregards numerous principles of interpretation employed by the Court in the past.