Charter Considerations

• Author: Erin Winocur/Danielle Robitaille/Maya Borooah
• Pages: 229-282



Charter

Considerations

7

I. General Principles of the Charter and Sentencing ............... 

II. Section  ................................................ 

A. Proportionality: The Relationship Between

Sections  and  ................................... 

III. Section (b) ............................................ 

IV. Sections (h)-(i) and the Meaning of Punishment .............. 

A. Section (h) ....................................... 

B. Section (i) ....................................... 

C. The Meaning of Punishment .......................... 

D. Time of Commission of the Oence .................... 

E. The Time of Sentencing .............................. 

V. Section : Cruel and Unusual Treatment or Punishment ......... 

A. Mandatory Minimum Sentences ....................... 

B. Challenges to Mandatory Minimum Sentences in the

ProvincialCourt ..................................... 

C. Section  Applied to Treatment ....................... 

VI. Remedies ............................................... 

A. Section () ....................................... 

B. Section () and Mandatory Minimum Penalties ......... 

C. Section (): Exclusion of Evidence .................... 

VII. Section  ................................................ 

VIII. Final Thoughts ........................................... 

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Sentencing: Principles and Practice

I. General Principles of the Charter and Sentencing

Sections 7 through 14 of the Canadian Charter of Rights and Freedoms contain the

constitutionally protected legal rights. Since the enactment of the Charter in 1982,

the cases that have interpreted these provisions have had a profound impact on the

investigation of criminal oences and the administration of justice in Canada. In

the context of sentencing, the application of the Charter is unique. There are spe-

cific provisions that speak directly to punishment, such as section 11(h), which pro-

tects against being punished twice for the same crime; section 11(i), which protects

against retrospective changes in sentencing; and section 12, which prohibits cruel and

unusual treatment or punishment. Other rights of more general application impact

the sentencing process, such as section 7, which captures principles of fundamental

justice, and section 11(b), which requires persons be tried within a reasonable time.

The application of the Charter to the sentencing process diers from its application

at other stages in the process because the legal rights contained in sections 7 through

14 have been held to have a more limited scope at sentencing than they do prior to a

finding of guilt:

Once guilt has been established, our fundamental principles of justice dictate a focus on

the most appropriate sentence for the guilty party. To assume that s. 7 post-trial protec-

tion should be identical to pre-trial and trial protection ignores a rather critical interven-

ing fact: the accused has been found guilty of a crime. Having so found, the court places

greater emphasis on the interests of society in developing a sentence that is appropriate

to the guilty party.1

Further,

[t]he sentencing principles and objectives set out in theCriminal Code, including the

fundamental principle of proportionality in s. 718.1, do not have constitutional status

and may be limited by Parliament where necessary to achieve a valid penal purpose, so

long as a sentencing judge is not required to impose a sentence that is “grossly dispro-

portionate” to the sentence normally mandated by ss. 718 to 718.2 of theCriminal Code.2

“[S]ome of the procedural protections that are available at trial are attenuated”3

at sentencing. For example, the Crown is generally not required to prove that a state-

ment is voluntary before it may be received into evidence at the sentencing hearing.4

1 R v Jones, [1994] 2 SCR 229, 1994 CanLII 85 at para 119.

2 R v Boutilier, 2017 SCC 64 at para 52, citing R vSafarzadeh-Markhali, 2016 SCC 14 at

para 71;R vNur, 2015 SCC 15 at paras 40-42.

3 R v Ricciardi, 2018 ONSC 445 at para 26.

4 Jones, supra note 1 at para 119; Ricciardi, supra note 3 at para 27. Diluca J went on to observe

in para 27 that a voluntarinessvoir dire might be “warranted in cases where the same types

of concerns that warrant a voluntariness assessment at trial are present at a sentence hear-

ing, for example where the Crown was seeking to rely on a confession to prove another

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Chapter  Charter Considerations 

This is not to suggest that at sentencing, anything goes. This chapter will review how

the Charter impacts the sentencing process and includes a discussion of the applica-

tion of the principles of fundamental justice (s 7), the right to be tried (and sentenced

within a reasonable time (s 11(b)), the protection against double jeopardy (s 11(h)),

the prohibition against retrospective punishment (s 11(i)), and the protection against

cruel and unusual punishment (s 12). The chapter concludes with consideration of

the remedies available pursuant to sections 24(1) and (2) in the event of a Charter

breach and a discussion of section 1 of the Charter, which defines the circumstances

under which a law may limit rights otherwise protected by the Charter.

II. Section 

Everyone has the right to life, liberty and security of the person and the right not to be deprived

thereof except in accordance with the principles of fundamental justice.

The principles of fundamental justice are about the basic values underpinning our

constitutional order. The section 7 analysis is concerned with capturing inherently

bad laws: laws that take away life, liberty, or security of the person in a way that runs

afoul of our basic values. The principles of fundamental justice are an attempt to cap-

ture those values. A fundamental principle within the meaning of section is a

legal principle about which there is significant societal consensus that it is fundamental

to the way in which the legal system ought fairly to operate, and it must be identified

with sucient precision to yield a manageable standard against which to measure depri-

vations of life, liberty or security of the person.5

“Underlying the rights in s. 7 is a concern for the protection of individual auton-

omy and dignity.”6 “Liberty protects ‘the right to make fundamental personal choices

free from state interference.’”7 It also “protects against physical restraint ranging

from actual imprisonment or arrest … to the use of state power to compel attendance

at particular place.”8 Section 7 aords protection to people only. It does not extend

to corporations.9

uncharged criminal oence,” citing Wilband v The Queen, [1967] SCR 14, [1967] 2 CCC 6 and

R v Campbell, 2003 CanLII 49352, [2003] OJ No 4085 (QL) (Sup Ct J).

5 R vMalmo-Levine;R v Caine, 2003 SCC 74 at para 113; Sahaluk v Alberta (Transportation Safety

Board), 2017 ABCA 153 at para 113.

6 R v Ndhlovu, 2022 SCC 38 at para 51.

7 Ibid at para 51 , citing Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at

para 54; R v Clay, 2003 SCC 75 at paras 31-32.

8 Ndhlovu, supra note 6 at para 51, citing Malmo-Levine; Caine, supra note 5, Fleming v Ontario,

2019 SCC 45, R v Beare; R v Hiins, [1988] 2 SCR 387 at 402, 1988 CanLII 126.

9 Quebec (AG) v 9147-0732 Québec inc, 2020 SCC 32 at para 15, citing Irwin Toy Ltd v Quebec

(AG), [1989] 1 SCR 927, 1989 CanLII 87.

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