Her Majesty The Queen Appellant v. Rosaire Poulin, 2019 SCC 47

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 longunreported. Survivors of sexual trauma commonly delay in disclosing abuse for reasons such as embarrassment, fear, guilt, or a lack of understanding andknowledge. 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 toovercome 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 theoverwhelming 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 realadversarial context exists. Second, while it is true that any issue concerning the

interpretation of a Charter provision is always of great importance, thereare 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 thereare conflicting lines of cases here or an issue that is ordinarily evasive of appellate review. Finally, the inequity of proceeding with an appeal against adeceased 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 Charterconsistently, holding that it guarantees any offender the benefit of the lesser sentence that applied between the time of commission of the offence and thetime 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 timeof sentencing. A technical construction such as the one proposed by the Crown is contrary to the Court’s conclusion that a generous and purposiveapproach 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 criminalinvestigation and prosecution — before the time of sentencing — at which an individual might be required to make choices in light of punishments thenapplicable. The protection of s. 11(i), which cannot be contingent on evidence that the accused relied on the existing law, is grounded in this verypossibility. Here, the possibility that the

interpretation of s. 11(

i) adopted by the courts will complicate the analysis of the applicable punishments shouldnot weigh against it. It seems imprudent to rule out an

interpretation that provides offenders with more substantial protection where there is no evidencethat 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 theimposed punishment corresponds to the social stigma associated with the offence at the time of sentencing, seems to confuse the availability of apunishment with its fairness and appropriateness. In a case involving multiple incidents in which serious acts of sexual abuse were committed against ayoung 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, (QC CA), [1989] R.J.Q. 1117; R. v.MacLellan, 2019 NSCA 2, 369 C.C.C. (3d) 482; Forget v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 90; Borowski v. Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342; R. v. Beaton, 2018 ONCA 924; R. v. Wigglesworth, (SCC), [1987] 2S.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., (SCC), [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 (AttorneyGeneral), 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, (SCC), [1995] 1 S.C.R. 686; R. v. Dunn, (SCC), [1995] 1 S.C.R. 226; Carter v.The Queen, (SCC), [1986] 1 S.C.R. 981; R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594; R. v. Potvin, (SCC), [1993] 2 S.C.R. 880; R. v. Kelly, (SCC), [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, (SCC), [1989] 1 S.C.R. 301; R. v. Bengy, 2015 ONCA397, 325 C.C.C. (3d) 22; Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [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; ReB.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. L.M., 2008SCC 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.), (QC CA), [1998] R.J.Q. 971; R. v. Belzil, (QC CA), [1989] R.J.Q. 1117; R. v. Smith,2004 SCC 14, [2004] 1 S.C.R. 385; Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342; R. v.

Cadman, 2018 BCCA100, 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, 2012ONCJ 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., (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., (SCC), [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.), (SCC), [1987] 1 S.C.R. 313;Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [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 , 26 e 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. n o 73 (QL), 2018 CarswellQue 55 (WL Can.) , affirming the sentencing decision of Vanchestein J., 2017 QCCQ 7015 , [2017] AZ-51400728, [2017] J.Q. n o 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 issentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk the offender took byoffending. That punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. Thelatter 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 asentence 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 twopunishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to have theconstitutional 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 islower than both the one to which they exposed themselves when they committed the offence and the one that reflects society’s current sense of thegravity 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 lenientpunishment 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 Iwill explain, these purposes are the rule of law and fairness. Far from supporting a global reading of s. 11(i), these purposes strongly militate towardsreading 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 clementpunishment 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 andwhich bear no connection whatsoever to the offender’s conduct or to contemporary sentencing standards. By granting the offender specific retrospectiveaccess 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 hasever applied to the offence since the offender committed it.

Section 11(

i) did not constitutionalize the right to past punishments that Parliament has sincediscarded or amended. The legal rights reflected in our Charter represent the core tenets of fairness in our criminal justice system. The right to comb thepast 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 notapplicable 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 and1983 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 hissentencing 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 healthproblems. [9] The sentencing judge accepted Mr. Poulin’s position and sentenced him to a conditional sentence of two years less a day for the twocounts of gross indecency. This is the sentence at issue in this appeal. The sentence imposed for the count of sexual assault — a suspended sentence withtwo 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 intoforce 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). Theparties agree that a conditional sentence was no longer applicable to the offence of gross indecency, according to the provisions in force, by the timeMr. 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 conditionalsentences have been made statutorily unavailable for such sexual offences (see Criminal Code, ss. 742.1(b), 151 and 271), the parties consider theconditional sentence to have equally been made unavailable for the indictable acts of gross indecency that are now criminalized under these modernsexual offences.

Put differently, the parties agree that the current restriction on conditional sentences for sexual offences extends to Mr. Poulin’s offencesof 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’sgross 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 theinterval between their commission and sentencing (2017 QCCQ 7015, at paras. 26-27 ). [12] The Crown appealed, arguing, among other things, that a conditional sentence was not available to Mr. Poulin under s. 11(

i) of theCharter. The Court of Appeal rejected the Crown’s argument. It applied its earlier decision in R. v. Belzil, (QC CA), [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 Courtof 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 expresslyrepealed 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 theappellant 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 SupremeCourt 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 thedeadline applicable to Mr. Poulin, which he ultimately did. Mr. Poulin’s counsel later provided affidavit evidence confirming that Mr. Poulin’s executorhad 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 motionto 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 Courtshould 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 areexceptional 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 amoot 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 advocatedfor that position at the hearing of this appeal. The interveners the Criminal Lawyers’ Association (“CLA”) and the Association québécoise des avocats etavocates de la défense (“AQAAD”) also provided the Court with perspectives aligned with Mr. Poulin’s. Thus, this Court has had the benefit ofadversarial 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, theCrown points out that the existing s. 11(

i) decisions addressing the binary/global question, while consistent, do not engage with, let alone identify, theunderlying purposes of the right. This is a critical shortcoming because, as discussed below, the

interpretation of a Charter right hinges on the right’spurposes. 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/globalquestion 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 appealis not restricted to the facts of the case. To the contrary, the proper

interpretation of this Charter provision engages a systemic issue related to theadministration 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 inseeing the question resolved (see Forget v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 90, at p. 97). Moreover, this appeal hasmeaningful collateral consequences; the proper

interpretation of s. 11(

i) touches not only all persons found guilty of offences and their families, but alsoall 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 thepublic interest to address the merits in order to settle the state of the law” (Borowski v. Canada (Attorney General), (SCC), [1989] 1S.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 judicialresources. At this stage and in these circumstances, the option most respectful of all participants’ resources is to decide the appeal. While a decision not toadjudicate this appeal might save this Court some resources in the short term, it would undoubtedly cost other courts and justice system participantsadditional resources in the longer term.

It is much more efficient and fair for this Court to decide this question of national importance now, rather thancause 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 beintruding 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 individualmost 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 toMr. 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 thatthis 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 bearsalmost all of the hallmarks of an appeal warranting adjudication despite its mootness: it is of “importance to the administration of criminal justice”; has “aconstitutional 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 ). This is therefore one of those “rare and exceptional” cases in which the Courtought 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, (SCC), [1987] 2 S.C.R. 541, at p. 558, per Wilson J.). Among the rights enshrined in s. 11 are the right to be presumedinnocent (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 becompelled 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 thebenefit of the lesser punishment. [30] The appellant Crown and the intervener the Attorney General of Ontario argue that s. 11(

i) confers a binary right. In their view, theprovision entitles the offender to the lesser of the punishments under the laws in force at two key points in time: commission of the offence andsentencing. The respondent Mr. Poulin and the interveners the CLA and the AQAAD claim that s. 11(

i) confers a global right. On their view, theprovision entitles the offender to receive the least onerous punishment that has existed for the offence since it was committed. [31] Thus far, Canadian courts have favoured Mr. Poulin’s approach. Courts across this country, including the Quebec Court of Appeal inthis case, have consistently read s. 11(

i) as conferring a global right (see, for instance, Belzil; 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). Generally speaking,and as further detailed below, two factors have led these courts to conclude that s. 11(

i) entitles an offender to receive a lesser punishment that was notapplicable at the time of the offence’s commission or of the offender’s sentencing, but was applicable for a period at some point in between the two. Thefirst factor is s. 11(i)’s use of the word “between”. In their view, “between” indicates that the s. 11(

i) right is concerned with the entire interval of timethat elapses between the offence and sentencing. The second factor is the principle of liberal

interpretation of Charter rights. According to them, thisprinciple dictates that s. 11(

i) should receive the

interpretation most favourable to the offender. [32] Absent from these decisions, however, is an analysis rooted in the purposes of s. 11(i). Indeed, these decisions do not examine thepurposes of s. 11(i). Yet, the

interpretation of a Charter right is a purposive endeavour (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1S.C.R. 295, at p. 344). A Charter right must be interpreted in light of the purpose or purposes driving it.

In Big M, this Court explained that the purpose ofa right or freedom is to be determined “by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate thespecific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rightsand freedoms with which it is associated within the text of the Charter” (p. 344). Accordingly, a proper determination of whether s. 11(

i) confers a binaryor global right cannot be made without examining the purposes of the right by reference to these considerations. [33] In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, this Court stated that the underlying purposes of s. 11(

i) are the rule of law andfairness. I begin my analysis by explaining how s. 11(

i) reflects these two purposes. Building on this foundation, and in accordance with the methodologyarticulated in Big M, I examine the linguistic and historical context of s. 11(i). In my view, the text and history of this provision lend support to the binaryinterpretation. Furthermore, unlike the global

interpretation, the binary

interpretation is consistent with the purposes animating s. 11(i). Far fromadvancing the rule of law and fairness, a global

interpretation of s. 11(

i) would undermine them. Therefore, a purposive analysis of s. 11(

i) leads to theconclusion that it confers a binary right. [34] In order to engage in a purposive analysis of s. 11(i), it is necessary to understand how the provision would operate, both in general aswell as under each of the binary and global approaches. We cannot appreciate the implications of the two competing approaches to s. 11(i), and whetherthese accord with the purposes of s. 11(i), without first understanding the basic mechanics of the provision and what each approach to the provisionentails. I therefore begin by reviewing these mechanics. As will be seen, four questions arise when applying s. 11(i). The fact that s. 11(

i) raises thesequestions is not in dispute. The questions naturally follow from the language of s. 11(

i) and feature in the case law applying the right. As will be seen,what differs between the binary and global approaches to s. 11(

i) is what they require to answer each of the four questions.

(1) Context: How

Section 11(

i) Operates (

a) Question One: What Are the Applicable Sentencing Provisions? [35] It is clear from its wording that s. 11(

i) involves a comparison between multiple “punishments” and an entitlement to the lesser ofthese. Thus, the first question that arises when applying s. 11(

i) is “What are the various sentencing provisions attached to the offence at the relevantpoints in time?” The sentencing provisions needed to apply s. 11(

i) in a binary manner are the ones in force at the time of the offence and the ones inforce at the time of sentencing. By contrast, a global approach to s. 11(

i) would require an exhaustive legislative history of all sentencing provisionsassociated with the offence since its commission. To respect Mr. Poulin’s s. 11(

i) right under a global approach, all of the sentencing provisions bearingon gross indecency over the decades between Mr. Poulin’s offences and his sentencing would need to be identified. Otherwise, the least onerouspunishment available in that interval might inadvertently be overlooked. [36] As set out above, the crime of which Mr. Poulin was found guilty — gross indecency — was repealed in 1988, after he committed it.However, the parties agree that the sentencing provisions applicable to Mr.

Poulin’s offences of gross indecency after that date are the ones applicable tothe indictable sexual offences in the Criminal Code. Then, because amendments to the Criminal Code made the conditional sentence unavailable forthese sexual offences, the parties agree that this sentence was similarly statutorily unavailable for Mr. Poulin’s counts of gross indecency at the time hewas sentenced in 2017. Without the parties’ agreement that the sentencing provisions applicable to the modern sexual offences apply to Mr. Poulin’s actsof gross indecency, it would have been necessary for the court to determine which crime(

s) and associated provisions corresponded to Mr. Poulin’s actsof gross indecency after this crime was repealed. (

b) Question Two: Which Measures Contained in These Sentencing Provisions Constitute “Punishments”?

[ 37 ] Once the relevant sentencing provisions have been identified, the question becomes which of the measures or sanctions contained within these provisions constitute “punishments” in the sense contemplated by s. 11( i ). In K.R.J. , at para. 41 , this Court held that a measure will constitute punishment under s. 11(

i) when: . . . (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. [Footnote omitted; para. 41.] Notably, K.R.J. expanded the s. 11(

i) concept of “punishment” beyond what it had been before. Specifically, K.R.J. added factor (3) to the test for punishment “to carve out a clearer and more meaningful role for the consideration of the impact of a sanction” (para. 41; see also paras. 28 and 36). [ 38 ] Numerous measures and sanctions have been assessed against the s. 11(

i) concept of “punishment”. The following measures have been found to qualify as punishment: the timing of eligibility for parole ( Liang v. Canada (Attorney General) , 2014 BCCA 190 , 355 B.C.A.C. 238, at paras. 27 and 43 ); pre-sentence custody ( R. v. S. (R.) , 2015 ONCA 291 , 333 C.R.R. (2d) 160, at para. 32 ); the conditions governing the “faint hope” regime ( R. v. Simmonds , 2018 BCCA 205 , 362 C.C.C. (3d) 215, at paras. 88-89 ); Criminal Code driving prohibition orders ( R. v. Wilson , 2011 ONSC 89 , 225 C.R.R. (2d) 234, at para. 37 ); and weapons prohibition orders ( Bent , at para. 71 ; see also R. v. Wiles , 2005 SCC 84 , [2005] 3 S.C.R. 895, at para. 3 (although not a s. 11(

i) case)). By contrast, the following sanctions have been found not to constitute s. 11( i ) “punishment”: post-conviction DNA databank orders ( R. v. Rodgers , 2006 SCC 15 , [2006] 1 S.C.R. 554, at paras. 64-65 ); sex offender registration (or “SOIRA”) orders (see, for instance, R. v. Cross , 2006 NSCA 30 , 241 N.S.R. (2d) 349, at para. 84 ); and provincial driving suspensions imposed in response to criminal convictions ( Wilson , at para. 34 ).

However, without commenting on their merits, I observe that these latter decisions were rendered prior to K.R.J . [ 39 ] In this case, the parties accept that a conditional sentence is a “punishment” for the purposes of s. 11( i ). Given my ultimate conclusion that s. 11(

i) confers a binary right and therefore does not entitle Mr. Poulin to any “punishments” temporarily available in the interval between his offence and sentencing, I need not determine whether a conditional sentence constitutes a “punishment” to which Mr. Poulin could be entitled under s. 11( i ). [ 40 ] As the cases outlined above reveal, “punishment” is a broad concept. It captures not only traditional prison sentences, but also ancillary orders and other statutory measures. The consequence of this is significant: in light of the meaning of “punishment”, s. 11(

i) does not involve the simple comparison of two or more whole sentencing provisions. Rather, s. 11(

i) requires that the applicable sentencing provisions be parsed into their various measures. Each type of measure must then be evaluated under the K.R.J. test for “punishment”. In this evaluation, attention must also be paid to whether the measure at issue has been found to constitute “punishment” under ss. 11(

h) or 12 of the Charter , as “punishment should be defined consistently across ss. 11 and 12 of the Charter ” ( R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599, at para. 38 ). [ 41 ] It is only once the evaluation of all of the measures is complete that the court will have before it the various “punishments” that must be compared to identify the “lesser” punishment or punishments to which the offender is entitled under s. 11( i ). A binary approach to s. 11(

i) would only require the evaluation of the measures applicable at the two relevant points in time (offence and sentencing). In contrast, a global approach to s. 11(

i) would require the evaluation of each and every type of measure that was applicable at some point during the entire interval between the offence and sentencing, no matter the length of that interval. (

c) Question Three: Which Punishment(

s) Represent the “Lesser” Punishment(s)? [ 42 ] Once the various “punishments” for the offence have been identified, they must be compared and contrasted to determine which one — or ones — reflect the “lesser” punishment. Often, this determination is obvious; it selects the shorter period of incarceration over the longer one, and the absence of a weapons prohibition over the imposition of one. However, sometimes the determination of the lesser punishment is more nuanced.

For instance, the sentencing court comparing two competing sentencing regimes must be alive to the possibility that each of the regimes contains some “lesser” aspect of punishment. To this end, in R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, this Court observed that while the new sentencing regime was more favourable to Mr.

Johnson if he qualified as a long-term offender, the former regime would be more favourable to him if he did not, as it provided him with the benefit of an earlier parole hearing (para. 46). [ 43 ] Just as it would require an evaluation of all sentencing measures available between the offence and sentencing to answer “Question Two”, the global approach would require a comparison of all punishments identified between the offence and sentencing to answer “Question Three”. On the other hand, answering “Question Three” under a binary approach to s. 11(

i) would involve only the comparison of those punishments applicable under the laws in force at the time of the offence and the time of sentencing. (

d) Question Four: What Punishment(

s) Must Be Imposed to Honour the Offender’s

Section 11(

i) Right? [ 44 ] Finally, once the sentencing court has isolated the lesser punishment or punishments, it must then sentence the offender according to that punishment or those punishments. This is, after all, the right that s. 11(

i) confers, regardless of whether the right is binary or global. What it looks like to receive “the benefit of the lesser punishment” depends on the nature of the punishment in question. [ 45 ] Where the offender does not need to satisfy any statutory criteria to obtain the lesser punishment, receiving the benefit of the lesser punishment simply means having that punishment applied.

Thus, if the punishments being compared are a maximum sentence of seven years’ imprisonment and a maximum sentence of 14 years’ imprisonment, receiving the benefit of the lesser punishment means receiving, at most, a sentence of seven years’ imprisonment (see Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289, at para. 37 ). In the same vein, s. 11(

i) would entitle an offender to a fine of $100 if, at the time of his offence, the law imposed a mandatory fine of $500, but, by the time of his sentencing, the amount of the mandatory fine had dropped to $100. Importantly, in such cases, the sentencing judge is bound under s. 11(

i) to impose the lesser punishment, regardless of whether the judge considers a more onerous punishment to be fit and proportionate. [ 46 ] Where the lesser punishment has built-in criteria that the offender must meet to qualify for the punishment, receiving the benefit of that punishment means, at a minimum, having the court consider the punishment. If the court finds that the offender meets the criteria, the offender becomes entitled to that punishment. This was demonstrated in Johnson , in which this Court held that s. 11(

i) obliged the sentencing judges to consider whether the offenders satisfied the criteria of the newer, more favourable long-term offender regime, before automatically applying the harsher dangerous offender regime already in place when the offenders committed their offences. If the offenders satisfied the criteria of the long-term offender regime, they were entitled to long-term supervision orders as long-term offenders following determinate periods of incarceration, instead of indeterminate detention as dangerous offenders (para. 45). [ 47 ] Notably, the punishment sought by Mr.

Poulin in this case, a conditional sentence, is a form of sentence with built-in prerequisites and criteria (see Criminal Code , s. 742.1 , and, in particular, para. (a); see also R. v. R.A.R. , 2000 SCC 8 , [2000] 1 S.C.R. 163, at paras. 14-16 and 25 ). Therefore, if this sentence were applicable to Mr. Poulin (which I find it is not), and if it were found to constitute the lesser punishment, Mr. Poulin would only be entitled to it if the sentencing judge found that Mr.

Poulin met the relevant statutory criteria. [ 48 ] Finally, where the punishments being compared are qualitatively different versions of a provision or sentencing regime, receiving the benefit of the lesser punishment means being sentenced under the more favourable provision or regime. Thus, in K.R.J. , the order prohibiting the offender from communicating with children had to conform with the version of s. 161(1) (

c) of the Criminal Code in force at the time of K.R.J.’s offence, not the

version in force when he was sentenced, which was more restrictive of liberty (paras. 57 and 115). Similarly, in Liang, the Court of Appeal held that theoffenders were entitled to access the automatic, accelerated parole review (“APR”) process that was applicable to them and their offences when theycommitted those offences. By virtue of s. 11(i), the offenders could not be subjected to the more restrictive parole eligibility rules that had replaced theAPR regime (see also Canada (Attorney General) v. Lewis, 2015 ONCA 379, 126 O.R. (3d) 289, and Nucci v.

Canada (Attorney General), 2015 MBCA122, 333 C.C.C. (3d) 221, which follow Liang). [49] Crucially, and as a number of these examples illustrate, granting the offender the benefit of the lesser punishment does not simplyequate to providing the court with an additional sentencing option (or additional sentencing options) to consider. Rather, s. 11(

i) redefines and delimitsthe scope of the court’s options. It sets the parameters in which the sentencing court is permitted to operate. Those parameters are determined by thelesser punishment. Therefore, instead of lengthening the list of available punishments, a global approach to s. 11(

i) would winnow down the sentencingcourt’s options to those contained within the least onerous punishment on the books for the relevant offence since the offence’s commission. Of course, ifthis “least” punishment involved criteria which the offender did not meet, a global approach to s. 11(

i) would require the court to apply the “next least”punishment. In this sense, a global s. 11(

i) right would also sometimes require the sentencing court to create a kind of “ranking” of the lowestpunishments. [50] Having itemized the four questions that arise when applying s. 11(i), I acknowledge that, generally speaking, parties invoking a globals. 11(

i) right have not systematically asked and answered them. Instead, the offender has typically requested and received a particular lesser punishmentavailable at some time in the interval between the offence and sentencing. Indeed, this is what occurred in Mr. Poulin’s case. Rather than canvassing allof the sentencing measures available for his offence since he committed it, he proposed to the court a conditional sentence, presumably considering it tobe the most favourable “lesser punishment”. [51] However, this approach is not what the global

interpretation of s. 11(

i) contemplates. As the jurisprudence reviewed in this sectionreveals, under the global approach, the sentencing court cannot be satisfied that it has respected the offender’s constitutional right to receive “the benefitof the lesser punishment” unless it has canvassed and evaluated all of the relevant sentencing provisions and compared and contrasted all of the relevant“punishments”. The failure to do so may result in the offender being subjected to a harsher punishment than the one to which they are constitutionallyentitled if a global approach to s. 11(

i) is taken. [52] In essence, the global approach posits that these numerous historical punishments be considered as potentially applicable sentenceseven though they bear no temporal relationship to the offender’s unlawful actions or the legal proceedings commenced against the offender in respect ofthose actions. If such an approach to s. 11(

i) is to be adopted, it must be warranted by the right’s purposes. I now turn to those purposes.

(2) Purposive Analysis [53] As outlined above, a Charter right must be interpreted purposively — that is, in a manner that is justified by its purposes. This bearsrepeating because, as this Court has observed, “purposive” can be mistakenly conflated with “generous” (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353,at para. 17; see also P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at p. 36-30).

This is despite this Court’s instruction in Big M that,in applying a generous — rather than legalistic — lens, “it is important not to overshoot the actual purpose of the right or freedom in question” (p. 344).As was reiterated in Grant, “[t]he purpose of a right must always be the dominant concern in its

interpretation; generosity of

interpretation is subordinateto and constrained by that purpose” (para. 17). This is because an overly generous reading of a right risks protecting “behaviour that is outside thepurpose and unworthy of constitutional protection” (Hogg, at p. 36-30). Indeed, “[i]n the case of most rights . . . the widest possible reading of the right,which is the most generous

interpretation, will ‘overshoot’ the purpose of the right” (ibid.). [54] Thus, while it has often been said that Charter rights must be interpreted in a “large and liberal” manner, they are ultimately boundedby their purposes. Put differently, Charter rights, including s. 11(i), must be interpreted liberally within the limits that their purposes allow. This wasacknowledged in K.R.J., in which the Court held that s. 11(

i) warranted a “liberal and purposive approach” (para. 37 (emphasis added)). Indeed, in thatcase, the Court justified its liberal

interpretation of the term “punishment” by linking it to the purposes of s. 11(i). The Court explained that the rule of lawand fairness purposes of s. 11(

i) would, in fact, be “compromised” if a liberal

interpretation of “punishment” were not adopted (para. 37). Similarly, in R.v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, a majority of this Court held that the right in s. 10(

b) of the Charter “to retain and instruct counsel” uponarrest or detention does not grant detainees the right to suspend their police interrogations to consult counsel upon reasonable request. The majorityrejected this generous

interpretation of s. 10(

b) as the purpose of the right did not warrant it (Sinclair, at paras. 36 and 56-57). Rather, the purpose ofs. 10(

b) was satisfied by a more measured reading of the right, which permits detainees under interrogation to consult counsel anew when a change ofcircumstances in the course of the investigation justifies consultation. [55] In my respectful view, courts that have given s. 11(

i) a global reading have fallen into the error identified in Grant of prioritizinggenerosity over purpose. Rather than identifying the principles or purposes underlying s. 11(i), they have simply concluded that s. 11(

i) should be giventhe

interpretation most generous to the accused, which they have called the liberal

interpretation (see Yusuf, at para. 30 ; Mehanmal, atparas. 75-76; R. v. D.H., 2017 ONCJ 51, at para. 17 ; Bent, at para. 79; see also Cadman, which relies on these paragraphs of Yusuf and Bent).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 ofCharter

interpretation. It is a principle of penal statutory

interpretation (see R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, at paras. 27, 29and 38-39; R. v. Dunn, (SCC), [1995] 1 S.C.R. 226, at para. 28). As just explained, Charter rights do not automatically receive the mostgenerous

interpretation that their language can bear (see Sinclair, at paras. 19-23 and 35-36; see also, for example: Wigglesworth, at pp. 553-54, in whichthis Court gave a “narrower

interpretation” to the broad opening words of s. 11 (“[a]ny person charged with an offence”); Carter v. The Queen, (SCC), [1986] 1 S.C.R. 981, per Lamer J.; R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594, per McIntyre J.; R. v. Potvin, (SCC), [1993] 2 S.C.R. 880, per Sopinka J., in which this Court held that the right “to be tried within a reasonable time” under s. 11(

b) of theCharter does not protect against pre-charge delay or appellate delay). [56] In light of the above, it is necessary to approach the determination of whether s. 11(

i) confers a binary or a global right from anunderstanding of the purposes of s. 11(i) — and not simply from the perspective of the interested offender. [57] Echoing this Court’s statement in Big M, Professor Hogg observes that guidance about a right’s purposes “can be obtained from thelanguage in which the right is expressed, from the implications to be drawn from the context in which the right is to be found, including other parts of theCharter, from the pre-Charter history of the right and from the legislative history of the Charter” (p. 36-30).

In this case, I find that the language andorigins of s. 11(i), in particular, provide helpful indicia of the provision’s meaning. Therefore, after reviewing the purposes of s. 11(

i) already identified inK.R.J., I study the language and origins of s. 11(i). Then, with the purposes, language and origins of s. 11(

i) in mind, I turn to the heart of the purposiveanalysis: deciding which

interpretation of s. 11(

i) is supported by the right’s purposes. (

a) The Recognized Purposes and Effect of

Section 11(i) [58] At common law, the general rule is that an accused must be tried and punished under the substantive law in force at the time theoffence was committed, rather than the law in force at any other time — such as at trial or sentencing (R. v. Kelly, (SCC), [1992] 2S.C.R. 170, at p. 203, per McLachlin J.; Johnson, at para. 41; K.R.J., at para. 1; R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 42. I call this a“general rule” as it can sometimes be displaced by other interpretive rules or principles). Where the law changes after an offence is committed, the new

criminal provisions are generally presumed not to apply retrospectively to the offence (R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 10, 35and 45-46; Brosseau v. Alberta Securities Commission, (SCC), [1989] 1 S.C.R. 301; Tran, at para. 43; R. v. Bengy, 2015 ONCA 397,325 C.C.C. (3d) 22). This explains why, in this case, the state was able to charge Mr. Poulin in 2014 for an offence that had been repealed from theCriminal Code in 1987. While the offence no longer existed when Mr. Poulin was charged, convicted and sentenced, it existed when he committed hisoffences of gross indecency between 1979 and 1983 (see also

Interpretation Act, R.S.C. 1985, c. I-21, s. 43). [59] The rationale for this common law rule is the rule of law and, more specifically, the principle of legality. The principle of legalitydictates 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 notsubsequently be held to different laws, particularly more stringent ones (K.R.J., at paras. 22-25). This principle is a pillar of the criminal law. In K.R.J.,this Court recognized that it lies at the heart of s. 11(i) (paras. 2, 23-24, 27 and 37).

Section 11(

i) safeguards the principle of legality by “constitutionallyenshrin[ing] the fundamental notion that criminal laws should generally not operate retrospectively” (K.R.J., at para. 22). The principle of legality alsofinds expression, for instance, in s. 11(

g) of the Charter, which protects a person against being convicted for

an act which was not a crime when theperson engaged in it. As explained in Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123,at p. 1152: [T]here can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying thisprinciple is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct inorder that persons be given fair notice of what to avoid . . . . [60]

Section 11(

i) of the Charter enshrines the common law rule that an offender should not be retrospectively subjected to a heavierpunishment than the one applicable at the time the person committed the offence (Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R.392, at para. 55; K.R.J., at para. 22). However, it does not stop there.

Section 11(

i) constitutionalizes an additional protection. It stipulates that, where thelaw 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 thebenefit of this more favourable, current punishment. This is so even though the offender actively risked a greater punishment in committing the offence. [61] Why, then, should the offender enjoy access to a lower present-day punishment? The clear rationale is fairness (see K.R.J., at paras. 2,27, 37 and 39).

It would not be fair to subject an offender to a punishment which, in choosing to reduce it, Parliament has expressly recognized as nolonger appropriate. Further, a criminal sentence is an expression of society’s collective voice; it is meant to reflect contemporary values. It would frustratea fundamental principle of sentencing — proportionality (Criminal Code, s. 718.1) — to impose a disproportionately high, outdated punishment which nolonger reflects the moral blameworthiness of the offence.

Thus, an offender who committed an offence at a time when that offence attracted a lifesentence should not be imprisoned for life if, at the moment of sentencing, the offence now attracts a lesser sentence of imprisonment. Instead of beingunfairly subjected to a sentence which is out of step with current moral norms, this offender should receive the benefit of society’s current, modernizedview of the offender’s conduct. [62] By adopting this view and entitling the offender to lesser, current punishments, s. 11(

i) involves an expansion of the offender’scommon law right to be judged according to the law in force at the time of the offence. The additional protection that s. 11(

i) confers is, therefore, accessto a decrease in punishment which coincides with an important step in the proceedings — namely, sentencing. Instead of merely guaranteeing to theoffender the punishment applicable at the time of the offence, s. 11(

i) designates that punishment as the ceiling. An offender is entitled to the benefit ofthat punishment if it is favourable to the offender, and to the benefit of a lesser punishment if one has replaced the first punishment. The result is that,where the punishment at the time of the offence is lesser, the offender is entitled to it even though its imposition might mean that the offender receives apunishment which is now considered disproportionately low. Conversely, where the current punishment is lesser, the offender is entitled to it even thoughthe offender might have risked a much higher punishment at the time the offender broke the law. In this way, s. 11(

i) balances, on one hand, the principleof the rule of law (or legality) and, on the other, the principle of fairness (see F. Chevrette, H. Cyr and F. Tanguay Renaud, “La protection lors del’arrestation, la détention et la protection contre l’incrimination rétroactive”, in G.-A. Beaudoin and E. Mendes, eds., Canadian Charter of Rights andFreedoms (4th ed. 2005), at p. 781). [63] The parties and interveners appear to agree that the rule of law and fairness are underlying purposes of s. 11(i). Their dispute centreson whether these purposes support a binary or a global

interpretation of s. 11(i). For its part, and as further discussed below, the CLA asserts that anadditional purpose of s. 11(

i) is to counteract the randomness or arbitrariness of the timing of one’s sentencing. I see no indication of such a purpose inthe right’s language or origins. To the contrary, I find that the language and origins of s. 11(

i) lend support to a binary

interpretation of the provision. Iexamine each of them next. (

b) The Language of

Section 11(i) [64] When conducting a purposive analysis of a Charter right, “the starting point must be the language of the section” (Grant, at para. 15).To reiterate, s. 11(

i) reads: 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 thebenefit of the lesser punishment. 11. Tout inculpé a le droit : . . .

i) de bénéficier de la peine la moins sévère, lorsque la peine qui sanctionne l’infraction dont il est déclaré coupable est modifiée entre le moment de laperpétration de l’infraction et celui de la sentence.

[ 65 ] In support of a binary

interpretation of this right, the Crown emphasizes the word “lesser” in “lesser punishment”, which denotes the lower of two options. It says that, had Parliament intended for s. 11(

i) to confer a global right, it could have specified that the offender was entitled to the “least severe punishment” instead of the “lesser punishment”. To the extent that the French version of s. 11(

i) employs broader language evoking the least severe punishment (“ la peine la moins sévère ”), the Crown says that, in this case, the English wording must take precedence. This is because of the established principle of bilingual

interpretation that the authoritative meaning is the common meaning between the two provisions ( R. v. Daoust , 2004 SCC 6 , [2004] 1 S.C.R. 217, at paras. 26 and 29 ; 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, at para. 53 ). As “least” encompasses “lesser”, the latter is the common meaning between the two. [ 66 ] For his part, Mr. Poulin emphasizes the word “between”, which he says demonstrates Parliament’s intent that s. 11(

i) capture those punishments available in the interval between the offence and sentencing. As set out above, the courts in Cadman , at para. 44 , Bent , at para. 79 , and Mehanmal , at para. 75 , placed similar reliance on the term “between” in reading s. 11(

i) globally. [ 67 ] I do not find that the use of “between” favours a global reading of s. 11( i ). In my view, this wording is consistent with both a binary and a global

interpretation of s. 11( i ). While it evokes an interval, an interval, in itself, does not suggest a global

interpretation. This is because, for a different punishment to exist at the time of sentencing than existed at the time of the offence, the punishment must necessarily have changed in the interval between those two times. By its orientation toward change during that interval, s. 11(

i) does not necessarily constitutionalize a right to the most favourable of any multiple changes in that interval. Put simply, s. 11( i )’s use of “between” tells us nothing about whether the right it confers is binary or global; it only tells us that s. 11(

i) concerns itself with the situation where the punishment has been “varied between” the time of the offence and the time of sentencing — whether only once or multiple times. [ 68 ] Not only do I reject Mr. Poulin’s reliance on “between”, I agree with the Crown that “lesser” evokes the comparison of two options. Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another.

For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11(

i) uses the binary language “the lesser punishment”. “Lesser” further reflects the more specific, common meaning between the two articulations of s. 11( i ) ( R. v. Stillman , 2019 SCC 40 , [2019] 3 S.C.R. 144, at para. 32 ; see also R. v. Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 483, at paras. 85-87 , per Bastarache J., concurring; R. v. S.A.C. , 2008 SCC 47 , [2008] 2 S.C.R. 675, at para. 15 ). As such, I reject the view that the use of “between” overcomes, or even counterbalances, the use of “lesser”. [ 69 ] Further, I find that the origins and history of s. 11(

i) corroborate the conclusion that s. 11(

i) was worded to confer a binary right. (

c) The Origins of

Section 11(i) [ 70 ] Unlike those Charter rights that refer to evolving, open-ended standards — such as “reasonable” and “unreasonable” (ss. 8, 11( a ), 11(

b) and 11( e )), “fundamental justice” (s. 7), and “cruel and unusual” (s. 12) — s. 11(

i) enunciates a rule with a particular application. In simple terms, s. 11(

i) was enacted to confer a particular, constant protection. As explained above, the protection that s. 11(

i) confers is something greater than the general common law entitlement to be judged according to the substantive law in force at the time of the offence. To understand what protection s. 11(

i) is meant to confer, and in accordance with the direction in Big M , it is useful to review the origins of the right. While these are not determinative of the right’s proper scope, they provide an instructive starting point. [ 71 ] As the following history reveals, there was nothing to inspire a global s. 11(

i) 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. [ 72 ] Published by the Government of Canada in 1969, possibly the earliest documented draft of what is now s. 11( i ) (then s. 11( g )) read: (

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.] (Government of Canada, 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 (1969), at p. 54) As is apparent, this early draft of s. 11(

i) simply enshrined the common law principle that an offender should only face as heavy a punishment as they risked at the time of their offence. This version did not entitle the offender to any decrease in punishment occurring after the offence. [ 73 ] The 1969 publication introducing this provision notes that, unlike many of the other legal rights contained in the Charter , s. 11(

i) did not have an existing counterpart in the Canadian Bill of Rights , S.C. 1960, c. 44 (Government of Canada, at p. 54). However, the policy paper does not explain the origin of the right. [ 74 ] Nonetheless, it is reasonable to assume that this first articulation of s. 11(

i) was inspired by two similar provisions. The first is s. 37(

e) of the

Interpretation Act , S.C. 1967-68, c. 7 — a form of which has existed since 1886 ( Dunn , at paras. 17 and 41 ), and which is now expressed in s. 44 (

e) of the

Interpretation Act , R.S.C. 1985, c. I-21 .

Section 37 (

e) stated (and s. 44 (

e) continues to state, with minor changes): 37. Where an enactment (in this

section called the “former enactment”) is repealed and another enactment (in this

section called the “new enactment”) is substituted therefor, . . . (

e) when any penalty, forfeiture or punishment is reduced or mitigated by the new enactment, the penalty, forfeiture or punishment if imposed or adjudged after the repeal shall be reduced or mitigated accordingly . . . . Mr. Poulin agrees that s. 11(

i) was inspired by what is now s. 44 (e) (R.F., at para. 55). Indeed, s. 11(

i) has been characterized as the constitutional entrenchment of s. 44 (

e) of the

Interpretation Act (Chevrette, Cyr and Tanguay-Renaud, at pp. 780-81; see also the comments of L’Heureux-Dubé J. in Dunn , at paras. 49-50 , although dissenting, she was not contradicted by the majority). [ 75 ] The second provision which can be credited for inspiring the first draft of s. 11(

i) is art. 7(1) of the European Convention on Human

Rights, 213 U.N.T.S. 221 (“ECHR”), which came into force on September 3, 1953. While Canada is not a party to the ECHR, the first draft of s. 11(i)bears strong resemblance to art. 7(1), which stated (an

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