What is the test for fairness in punishment in the Charter of Canada?
British Columbia, Canada
The following excerpt is from R. v. Simmonds, 2018 BCCA 205 (CanLII):
Fairness in punishment underpins ss. 11(h) and (i) of the Charter. Although directed at different rights, the sections operate in harmony and the term “punishment” generally has the same meaning in both: K.R.J. at para. 39; Liang v. Canada (Attorney General), 2014 BCCA 190, leave to appeal dismissed, [2014] S.C.C.A. No. 298 at paras. 35-37; Canada (Attorney General) v. Lewis, 2015 ONCA 379 at paras. 24-25. Section 11(i) expresses society’s repudiation of retroactive legislation under which a harsher penalty would be applied to an offence that was committed before its enactment. Section 11(h) protects against legislation that has the effect of retrospectively increasing an offender’s punishment when a penalty has already been imposed: Whaling at paras. 55-56.
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.
Other Questions
When will the Court of Justice LaForme be able to continue to uphold the Charter of Canada's Charter of Human Rights? (British Columbia, Canada)
What is the current state of the law in Canada under s. 12 of the Canada-Canada Border Security Act? (British Columbia, Canada)
Does the identification of "punishment" in the context of section 11(i) of the Charter apply to a child as a punishment? (British Columbia, Canada)
What is the test for applying s. 1 of the Charter of Canada's "reasonable limits" or as can be demonstrably justified? (British Columbia, Canada)
Does extradition to the United States violate the Charter right of Canadian citizens to remain in Canada? (British Columbia, Canada)
What is the effect of media freedom of expression in the context of the Charter of Canada? (British Columbia, Canada)
What is the test for s. 11(b) of the Charter of Canada? (British Columbia, Canada)
How have sections 6 and 7 of the Charter of Canada been interpreted? (British Columbia, Canada)
What factors will the courts use to determine whether a mandatory minimum punishment under section 12 of the Charter is disproportionate? (British Columbia, Canada)
What is the test for equalization in s. 15 of the Charter of Canada? (British Columbia, Canada)
