The Constitutional Right to the Benefit of a Lesser Punishment: What Constitutes “punishment”?


People’s conduct and the legal consequences that flow from it should be judged on the basis of the law in force at the time.  This is a basic tenet of our legal system.

In recognition of this principle, s.11(i ) of the Canadian Charter of Rights and Freedoms provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to “the benefit of the lesser punishment”.  Like the other legal rights enshrined in s.11(i ) of the Charter, s.11(i ) is fundamentally important to our justice system because it protects the fairness of criminal proceedings and safeguards the rule of law.

This constitutional aversion to retrospective criminal laws is in part motivated by the desire to safeguard the rule of law: acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.

The Framework for Defining Punishment in Section 11(i) of the Charter 

The test for determining whether a consequence amounts to “punishment” under s.11(i ) is as follows:

1.       the imposed measure must be a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence,

                                                  and either

2.        it is imposed in furtherance of the purpose and principles of sentencing, or

3.        it has a significant impact on an offender’s liberty or security interests.



Applying this test, the Supreme Court of Canada held that an order made under section 161 of the Criminal Code prohibiting the offender from using a computer system for the purpose of communicating with a person under the age of 16 years constituted a punishment within the meaning of 11(i).

See R. v. K.R.J., 2016 SCC 31.

In earlier jurisprudence, that same court has held that post-conviction DNA databank orders do not constitute punishment because they are imposed to assist in the investigation of future crimes, not in furtherance of the purpose and principles of sentencing.  The fact that a DNA profile may deter offenders is merely a “residual benefit”.

R. v. Rodgers,  2006 SCC 15 (CanLII)



Canadian Charter of Rights and Freedoms

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.

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