Canadian Criminal Sentencing/Procedure/Charter Issues

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Retrospective punishments[edit]

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[1] and license suspension under provincial law which is considered a "civil disability"[2].

SOIRA Orders[edit]

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".[3] As such, the dominant line of cases suggests that the provisions of SOIRA are retrospective.[4]

Cruel and Unusual Punishment[edit]

Section 12 of the Charter states: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

References[edit]

  1. see Re Gittens and the Queen [1983] 1 FC 152, 68 CCC 2d 438 (FCTD); Hurd v. Canada (MEI) [1989] 2 FC 594 (FCA);
  2. see Johnston v. Superintendent of Motor Vehicles [1987] BCJ No44 (BCSC)
  3. R. v. Cross 2006 NSCA 30 [1] at 85
  4. R. v. Cross, supra
    R .v. Aberdeen, [2005] AJ No. 1062 [2]
    R. v. Rouschop