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Charter - s.11(i) Lesser Punishment (2). R. v. Archambault
In R. v. Archambault (SCC, 2024) the Supreme Court of Canada (from two judges, the largest single judgment in the majority) dismissed a Crown criminal appeal, here where it "raises the question of the temporal application of a legislative amendment" (here regarding entitlement to a preliminary inquiry).
Here the court considers an amendment to criminal preliminary inquiries law and Charter s.11(i) ['Lesser punishment']:(2) An Accused’s Right to the Benefit of the Lesser Punishment Does Not Affect the Determination of the Right to a Preliminary Inquiry
[74] Although an accused may receive a reduced maximum sentence for a crime committed before the sentence was increased, the accused’s right to the benefit of the lesser punishment does not defeat the right to a preliminary inquiry. To conclude otherwise would lead to an absurd result, in addition to penalizing the accused and disregarding the sequence of the various stages of a trial.
[75] In establishing an accused’s right to a preliminary inquiry, s. 535 Cr. C. is closely linked to the right set out in s. 548(1)(b) Cr. C., that is, the right to be discharged of any charge if, on the whole of the evidence adduced during the preliminary inquiry, no sufficient case is made out to put the accused on trial on the charge. In this sense, it is a provision favourable to the accused. Section 535 Cr. C. cannot be interpreted narrowly in light of other provisions that are equally favourable to the accused, such as s. 11(i) of the Charter and ss. 43(d) and 44(e) of the Interpretation Act, which establish the accused’s right to the benefit of the lesser punishment. Concluding that accused persons who enjoy such protection have no right to a preliminary inquiry leads to an absurdity, which results from the application of provisions whose purpose is precisely to preserve their interests.
[76] We are also unable to agree with the conclusion of our colleague Karakatsanis J. that Mr. Grenier and Mr. Archambault would not be penalized by such an interpretation. While an accused’s right to the benefit of the lesser punishment guarantees a maximum sentence of 10 years’ imprisonment because of the date of the alleged offence for which the statutory sentence has since been increased, the accused can be given a sentence heavier than the one that would have been imposed at the time, as we explained above (Friesen, at paras. 3, 5 and 107; Bertrand Marchand, at para. 31). There is therefore a significant difference between the situation of an accused charged with an offence punishable by imprisonment for a term of 10 years and that of an accused charged with a historical offence for which the statutory sentence has since been increased.
[77] We reiterate that Tran does not support the conclusion that the accused must be personally facing a maximum term of imprisonment of 14 years in order to have the right to a preliminary inquiry. Drawing an analogy with s. 36(1)(a) of the Immigration and Refugee Protection Act, as our colleague Karakatsanis J. does, overlooks the sequence of stages in criminal trials. The preliminary inquiry and sentencing occur at different times and are separated by the trial. The order in which these stages proceed plays an important role, because the preliminary inquiry takes place well before sentencing. To hold otherwise could lead to results that are absurd in practice, if not harmful. There are circumstances in which the justice cannot say with certainty that the accused will have the rights set out in s. 11(i) of the Charter. Adopting the reasoning proposed by our colleague would create the risk of denying a preliminary inquiry to an accused who should be entitled to one. The application of s. 11(i) of the Charter is a question of law, which a judge decides only at the sentencing stage.
(3) Application to the Facts
[78] It must be kept in mind that, since 2015, offences in the nature of those with which Mr. Grenier and Mr. Archambault were charged, or the equivalent offences, have been punishable by a maximum term of imprisonment of 14 years. Under s. 11(i) of the Charter, the respondents are entitled to the benefit of the lesser maximum punishment in effect at the time the alleged acts were committed, that is, a maximum of 10 years’ imprisonment. The fact remains that the intent expressed by Parliament is to toughen the sentences applicable to the offences charged against Mr. Grenier and Mr. Archambault. Section 535 Cr. C. must be interpreted in a manner consistent with that intent.
[79] The offences with which Mr. Grenier and Mr. Archambault were charged fall within the category of the most serious offences, because if the acts in question were committed today, they would be punishable by a maximum term of imprisonment of 14 years. This is not in dispute. They therefore have the right, under the new s. 535 Cr. C., to request a preliminary inquiry.
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