A "broad and liberal" interpretation of rights guaranteed by the Charter?

The Supreme Court of Canada recently held that s. 11 (i) of the Canadian Charter confers a binary right, not a global one. That’s what the majority concluded (Justices Abella, Karakatsanis and Brown dissented) on October 11 in R v. Poulin  after having exceptionally exercised its discretion to adjudicate a criminal appeal rendered moot by the accused’s death.

In addition to deciding whether it ought to exercise that discretion, the Court addressed the scope of the right guaranteed by s. 11 (i) of the Charter, which guarantees “the benefit of the lesser punishment” to those charged with an offence and found guilty where the punishment “has been varied between the time of commission and the time of sentencing."

The Court had to rule on the proper interpretation to be given to this Charter provision, namely whether it confers a binary or a global right. The majority, written by Justice Sheilah Martin, held it to be a binary right. The decision according to the dissenting judges, marks a significant shift, and overturns 30 years of consistent case law on this issue.

The majority relied on an interpretation consistent with the purposes underlying s. 11 (i), namely the rule of law and fairness. The Court also clarified that all Charter rights should be interpreted purposively, meaning that interpretation must be justified by the purposes of these rights.

In other words, the Court does not exclude a “generous” or "large and liberal” interpretation of Charter rights – which the courts have often relied on – insofar as the analysis remains bound by the purposes driving those rights. On this point, Peter W. Hogg has already rightly pointed out that “[i]n the case of most rights […] the widest possible reading of the right, which is the most generous interpretation, will ‘overshoot’ the purpose of the right […].” (Constitutional Law of Canada (5th ed. Supp.) vol. 2, at p. 36-30).

In the case at hand, the majority concluded that to give a global – rather than a binary – reading to s. 11 (i) would improperly favour a liberal interpretation of that provision, thereby undermining its purposes. According to the majority, that is precisely the error Canadian courts have made in the past by giving s. 11 (i) a global reading, and holding that the accused should benefit from the most generous, or liberal, interpretation.

In this regard, the Court rejects the notion that a provision bearing more than one plausible meaning must be read in a manner that favours the accused. That is a principle of penal statutory interpretation, the Court writes, not a principle of Charter interpretation.

This binary interpretation means that that in the future, the accused will have the right under s. 11 (i) to benefit from the lesser punishment between the one in force at the time the offence was committed and the one in force at the time of sentencing, and not the least severe punishment that has ever existed for that offence since the accused committed it.

The Supreme Court's volte-face on this point may surprise some, particularly in light of the likely impact it will have on the Canadian judicial system. Even so, the majority relied on an interpretation principle that is hardly revolutionary. In fact, the reasons given by Justice Martin are a reminder of sorts of the instruction set out by the Court in Big M, back in 1985, to the effect that the analysis should be “a generous rather than a legalistic one, […]” but “[a]t the same time it is important not to overshoot the actual purpose of the right or freedom in question […].”

Ultimately, while the purposive interpretation does not replace, strictly speaking, the "broad and liberal" one frequently applied by Canadian courts, the endeavour that must guide the latter is one that prioritizes the purposes underlying the Charter rights, rather than one that automatically grants them the most generous interpretation that their wording allows.