Since Chief Justice Wagner’s swearing into office on December 18, 2017,1 the unanimity of Supreme Court of Canada decisions has noticeably declined relative to decisions of the Court under his predecessor, Chief Justice McLachlin.2 Though a declining consensus in decisions from the Court is certainly indicative of disagreement on the state of the law in the particular circumstances of each case, the consequence should not necessarily be perceived as being negative. For instance, many matters before the Court are complex and rightfully deserving of having that complexity borne out through diverging reasons reflecting the multiple perspectives of the members of the Court. Indeed, the consequence of forcing unanimity in the context of a given decision may be to significantly narrow the scope of a particular opinion3 with the effect of limiting the law’s potential to develop alongside the needs of society over time.4 Divided decisions waging over particularly nuanced or intricate areas of law may, therefore, lend contribution to an eventual reconciling of opinion for the betterment of the law and the benefit of society.
As Canada’s top court, the Supreme Court of Canada functions not only as arbiter but also as educator to both lower courts and the public. As educator, the Supreme Court should “add clarity to the law, provide clear direction for lower courts,” and, ideally, give the decided law “legitimacy in the eyes of the public.”5 But unlike fulfilling its role as arbiter, which is naturally fulfilled by any majority decision by virtue of the doctrine of stare decisis, the Court’s fulfillment of its role as educator cannot so easily be taken for granted.
The Court’s exercise is to explore every facet of the legal issue at stake,6 with the result being a rigorous application of the underlying authoritative and persuasive elements that give rise to the Court’s decision. Failure to approach its role as educator with ambition and vigor, however, compromises the Court’s efficacy in “address[ing] the merits [of the case] in order to settle the state of the law.”7 As presented below, the majority and dissenting reasons in R. v. Poulin,8 when taken together, exemplify the precariousness that arises where lack of unanimity meets a foundering in the Court’s effectiveness in educating, as described above.
In Poulin, for the first time since the enactment of the Charter,9 the Supreme Court contemplated two possible interpretations of the constitutional right provided by s. 11(i):10 the global interpretation, which would provide the offender with the right to the “least severe” of all punishments that have existed for an offence between its commission and the offender’s sentencing;11 or the binary interpretation, which would provide the offender with the “lesser…punishment” as between that which existed when the offence was committed and that when the offender was sentenced.12 The question arose in the context of the Crown’s sentence appeal13 following Poulin’s conviction on two counts of gross indecency, which he committed between 1979 and 1983.14 The sentencing judge, taking into account Poulin’s “suffering from a number of significant health problems,”15 sentenced him to a conditional sentence of two years less a day.16
The issue arises from the fact that conditional sentences were available neither at the time the offence took place nor at the time of sentencing.17 The question, then, was whether Poulin was entitled to a sentence that was made available for only a brief period between the commission of the offence and the time of sentencing. Splitting four to three in its decision, the Supreme Court signified that it stands—albeit shakily—in favour of s. 11(i) as conferring on the accused a binary right to the lesser of the two punishments available at the time of commission of the offence and at the time of sentencing.18 Most salient to this comment’s analysis, however, is how the majority and dissent arrived at their conclusions and, consequentially, the potential implications this process has on one’s faith in the administration of justice.
Having determined the purpose of s. 11(i) to be the rule of law and fairness,19 the majority’s analysis continued to consider the consequence of the subsection’s particular wording.20 In holding “lesser” as being determinative of a binary interpretation of s. 11(i), the majority relied almost exclusively on personal perceptions of the contexts in which the word “lesser” is commonly used.21 Whereas the dissent, with quick reference to multiple dictionary definitions, had interpreted “lesser” as not restricting comparison to between two objects,22 the majority relied on anecdotal evidence to rule out any potential that s. 11(i)’s construction might afford to the global interpretation.
This preliminary conclusion on s. 11(i)’s construction appears to colour the remainder of the majority’s analysis, including its interpretation of the effects of the provision’s origin. On this point, the majority compared s. 11(i) to two international and two domestic pre-Charter references.23 Whereas two of these references merely mirror the common law’s neither-global-nor-binary position,24 the remaining two were not given the critical attention that their ambiguity ought to necessitate.25 Foregoing such analysis, the majority hastily concluded that there is “nothing to inspire a global s. 11(i) right”26 and instead suggested that “there is good reason to believe that s. 11(i) was intended to confer no more than the binary right reflected in its language.”27 However, a lack of evidence in favour of one conclusion is not necessarily evidence in favour of another. Without compelling evidence or rigorous reasoning in favour of a binary interpretation of s. 11(i), it is difficult to fully accept the majority’s reasons as presented.
In the paragraphs that follow, the majority (rightly) raised concern with nearly three decades of Canadian jurisprudence—which consistently applied a global interpretation—for its failure to properly engage in a purposive analysis of s. 11(i).28 The dissent, on the other hand, failed to acknowledge this fundamental oversight in its reasons, and paid deference to the apparent validity of those lower court judgments. Worse, the dissent noted the appellant’s failure to consider “that a generous and purposive approach must be taken to the interpretation of Charter rights.”29 The dissent here chose to hold the appellant to this fundamental Charter principle (as established over thirty years ago in R. v Big M Drug Mart Ltd.30) but regrettably failed to do so for the appellate courts the Supreme Court oversees. This paradoxical oversight, potentially critical to the dissent’s conclusion, underscores the value left wanting from both sets of reasons provided by the Court in Poulin.
Admittedly, Poulin is but one of more than one hundred appeals decided so far (at the time of this writing) in the Wagner C.J.C. era of the Supreme Court of Canada. It would therefore be extremely short-sighted and unduly presumptuous to draw from this case alone any conclusions related to flaws in the Court’s collegiality or decision-making process. Even so, Poulin raises some cause for concern. Indeed, more careful engagement with the issues highlighted above would be likely to improve the coherence and authority of both issued reasons and, perhaps, reconcile some of the conflicting perspectives of the Court. Furthermore, cogent reasons from the Court—important to any decision—are critical to enhancing the legitimacy of the views, both majority and minority, of a split bench. Whereas a decision issued by the Supreme Court should put more questions to rest than it raises, the Court in Poulin has done little, beyond its role as arbiter, to deliver clarity to the law as it pertains to s. 11(i) of the Charter.
* JD Candidate (Saskatchewan), BSc (Simon Fraser).
1 “The Right Honourable Richard Wagner, P.C., Chief Justice of Canada” (last modified
23 February 2018), online: Supreme Court of Canada <www.scc-csc.ca/judges-juges/bio-eng.aspx?id=richard-wagner>.
2 In 2017, the Supreme Court of Canada was unanimous in 54% of the cases it decided, whereas in 2018 and 2019, the Court was unanimous in only 48% and 42% of the cases it decided, respectively: see “2019 Year in Review” (30 April 2020), online (pdf): Supreme Court of Canada <www.scc-csc.ca/review-revue/2019/yr-ra2019-eng.pdf>, archived: <perma.cc/GU8P-DTJU>.
3 See Emmett Macfarlane, “Consensus and Unanimity at the Supreme Court of Canada” (2010) 52:2 SCLR 379 at 383.
4 See The Honourable Claire L’Heureux-Dubé, “The Length and Plurality of Supreme Court of Canada Decisions” (1990) 28:3 Alta L Rev 581 at 586.
5 Macfarlane, supra note 3 at 384. See also L’Heureux-Dubé, supra note 4 at 586–87. Speaking particularly in the context of Charter interpretation cases, Justice L’Heureux-Dubé suggests that a plurality of decisions allows a particular doctrine to develop through the introduction and distillation of multiple arguments over time (ibid).
6 L’Heureux-Dubé, supra note 4 at 585.
7 Borowski v Canada (Attorney General),  1 SCR 342 at 364, 1989 CanLII 123, quoted in R v Poulin, 2019 SCC 47 at para 23, 438 DLR (4th) 1 [Poulin].
8 Poulin, supra note 7.
9 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
10 Ibid, s 11(i):
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.
11 Poulin, supra note 7 at para 2 [emphasis omitted].
13 Ibid at paras 12–13.
14 Ibid at para 7.
15 Ibid at para 8.
16 Ibid at para 9.
17 Ibid at para 10.
18 Ibid at para 3.
19 See ibid at paras 58–63.
20 See ibid at paras 64–69.
21 See ibid at para 68: “For instance, we speak of the ‘better’ of two options and the ‘best’ of multiple, the ‘higher’ of two heights and the ‘highest’ of multiple, the ‘faster’ of two speeds and ‘fastest’ of multiple, to give only a few examples.”
22 See ibid at para 149.
23 See ibid at paras 70–85.
24 See ibid at para 72 (referencing the earliest documented draft of what is now s. 11(i)); ibid at para 75 (referencing Article 7(1) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) [ECHR]), a convention Canada has not acceded to). The common law provides that an offender shall not be subjected to a penalty heavier than the one applicable at the time the offence was committed—it does not contemplate a lesser sentence in the same sense as is being contemplated here: see Poulin, supra note 7 at para 72.
25 See Poulin, supra note 7 at para 74 (referencing s. 37(e) of the Interpretation Act, SC 1967–68, c 7); Poulin, supra note 7 at para 76 (referencing Article 15(1) of the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, Can TS 1976 No. 47 (entered into force 23 March 1976) [ICCPR]). Despite acknowledging Article 15(1) of the ICCPR’s expansive offering, its influence on s. 11(i) (Poulin, supra note 7 at para 78), and its ambiguity (ibid at para 83)—but without engaging in a thorough analysis to determine its meaning—the majority rejected the possibility that Article 15(1) might lend to a global right in favour of a quickly drawn binary interpretation of s. 37(e) of the Interpretation Act and Article 7(1) of the ECHR (supra note 24) (which, despite Canada having never acceded to it, is presumed to have influenced the drafters of the Charter) (Poulin, supra note 7 at paras 82–83).
26 Poulin, supra note 7 at para 71 [emphasis added].
27 Ibid at para 80 [emphasis added].
28 See ibid at paras 105–09. See also ibid at paras 31–32.
29 Ibid at para 151 [emphasis in original].
30  1 SCR 295, 1985 CanLII 69.