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Lesser V. Least: No Right To 'Comb The Past' For Favourable Penalty, Court Says

Darpan News Desk The Canadian Press, 11 Oct, 2019
  • Lesser V. Least: No Right To 'Comb The Past' For Favourable Penalty, Court Says

OTTAWA - A convicted person is entitled to the lesser of two punishments — the one in effect when the offence took place, or the one on the books at the time of sentencing — the Supreme Court of Canada has ruled.

 

However, the guilty party does not have a constitutional right to the least severe penalty that might have been in effect between those two points.

 

The clarification of sentencing procedures came Friday in the case of Rosaire Poulin, who was convicted in Quebec in 2016 of sexual assault and acts of gross indecency.

 

At the time of the incidents, from 1979 to 1987, the victim was between the ages of seven and 15.

 

A Quebec court said that under the Charter of Rights and Freedoms an accused has a right to the least harsh punishment in effect from the time of the offence until the sentencing.

 

Poulin received a conditional sentence of two years less a day, to be served in the community, for the counts of gross indecency.

 

The Crown unsuccessfully challenged the decision in the Quebec Court of Appeal, prompting an appeal to the Supreme Court.

 

In its 4-3 decision, the high court said Poulin, who has since died, was not eligible for the conditional sentence because it did not exist at the time of his offences or at his sentence, only temporarily between those points.

 

At issue in the case was section 11(i) of the charter, which grants a guilty person the right to the benefit of the lesser punishment if the penalty has been varied between the time of the offence and the sentencing.

 

In writing for a majority of the court, Justice Sheilah Martin said the section does not confer the right to past punishments that Parliament has since discarded or amended.

 

"The legal rights in our charter represent the core tenets of fairness in our criminal justice system," Martin said. "The right to comb the past for the most favourable punishment does not belong among these rights."

 

Martin described the occurrence of the offence and the time of sentencing as meaningful points to which a penalty should be tethered.

 

"The former reflects the jeopardy or legal risk the offender took by offending," she wrote.

 

"The latter 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 a sentence that reflects society's most up-to-date view of the gravity of the offence and the degree of responsibility of the offender."

 

Given Poulin's death, there is no need to revise his sentence, Martin said. "There is no utility in passing a new sentence which the offender cannot serve."

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