Section 11 (i) of the Charter guarantees the right to offenders “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.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.
This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 . A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).
The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” . Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam .
A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”. Purpose is found by looking at the language of a particular Charter provision , and the original context at the time of its enactment ; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.
Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “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’” ). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” . This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” .
Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” . Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” . Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” ; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes ; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment . What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” .
The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” . Also, “lesser” does not denote a solely binary interpretation . The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” . Put this way, “there is no principled argument that would justify such a limitation…” . Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law . All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process . Instead, the entire continuum of possible options should serve to benefit the offender.
In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.
First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “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” .
Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.
Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.
The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:
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”.
This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.
This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.