Canadian Criminal Sentencing/Procedure/Charter Issues
Section 11(i) of the Canadian Charter of Rights and Freedom states:
11. Any person charged with an offence has the right ...
- (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Ex post facto treatment of the offender is not viewed as punishment under s. 11(i). That includes deportation following conviction and license suspension under provincial law which is considered a "civil disability".
SOIRA legislation is not considered a "punishment" within the meaning of s. 11(i) of the Canadian Charter of Rights and Freedoms except where the impact of the order amounts to "harsh treatment". As such, the dominant line of cases suggests that the provisions of SOIRA are retrospective.
Cruel and Unusual Punishment
Section 12 of the Charter states: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."