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It was the first time the Supreme Court had spelled out the meaning of a section of the Charter of Rights and Freedoms that gives offenders the right to 'the lesser punishment' if the penalty for that particular crime 'has been varied between the time of commission and the time of sentencing.'

The Canadian Press

The Supreme Court says Canadian judges have been too soft on punishment for 30 years in giving offenders the lowest possible sentence that applied at any time between their crime and the sentencing.

The court was ruling in the case of a child predator sentenced to house arrest in the seniors’ residence where he lived – although no such penalty was available when he was sentenced or at the time of the offence. House arrest was possible for several years between the two periods.

But using the punishment most favourable to the accused had occurred in many contexts, even regarding convicted murderers’ wait for parole eligibility, the court said.

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In a 4-3 decision, it said that approach was too generous.

“The legal rights reflected in our Charter represent the core tenets of fairness in our criminal justice system,” the majority said, referring to such rights as the right to counsel and the right to be presumed innocent. “The right to comb the past for the most favourable punishment does not belong among these rights.”

It was the first time the Supreme Court had spelled out the meaning of a section of the Charter of Rights and Freedoms that gives offenders the right to “the lesser punishment” if the penalty for that particular crime "has been varied between the time of commission and the time of sentencing.”

Rosaire Poulin of Quebec was convicted in 2016 for offences, including sodomy, on a child between the ages of seven and 15 that occurred between 1979 and 1987. Prosecutors asked for a prison term of 3½ to five years, but the defence, pointing to Mr. Poulin’s age (82) and poor health, requested a conditional sentence.

A Quebec judge gave him the conditional sentence, which had been available from 1996 to 2012. (A Liberal government created the conditional sentencing, and a Conservative government abolished such penalties for dozens of types of crimes.) When prosecutors challenged it, the Quebec appeal court upheld it unanimously. Prosecutors appealed to the Supreme Court. (Mr. Poulin had died by the time the court heard the case, but the majority ruled that it was so important it should be heard anyway.)

Ever since the early years of the 1982 Charter, critics have said the court has tilted the justice system toward the accused and convicted criminals by declaring that rights must be interpreted in a “large and liberal” way.

A narrow majority in the Poulin case seemed, when it comes to this particular right anyway, to side with the critics, saying the lower courts did not keep in mind what the drafters of the Charter intended: To ensure offenders face the consequences of their actions as they were when they undertook them (or a lesser penalty if, by the time of sentencing, Parliament has decided those consequences are excessive).

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“While it has often been said that Charter rights must be interpreted in a ‘large and liberal’ manner, they are ultimately bounded by their purposes,” the majority said in a ruling written by Justice Sheilah Martin, and supported by Chief Justice Richard Wagner, Justice Michael Moldaver and Justice Suzanne Côté.

They also focused on the meaning of “lesser” – implying a choice between two – while the dissenters explored the meaning of “between," suggesting something continuing.

In the dissent, Justice Andromache Karakatsanis, supported by Justice Rosalie Abella and Justice Russell Brown, said the majority ruling is contrary the court’s history of taking a “generous and purposive" approach to interpreting constitutional rights.

Marianne Salih, who represented the Criminal Lawyers Association, which intervened in the case, said the ruling “may not be as consequential as some might fear,” because the Supreme Court established in previous cases the parameters of most Charter rights that apply in criminal-law cases, such as to life, liberty and security, to be free from unreasonable search and seizure, and to protection against cruel and unusual punishment.

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