On the 9th podcast episode, Garth Barriere and Eric Purtzki join Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective. Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States.
Garth and Eric are both criminal defence attorneys in Vancouver. Both have appeared before the Supreme Court of Canada on numerous occasions.
A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.
A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.
There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.
The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion. In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.
In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:
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
It is also helpful to understand how s. 1 of the Charter works. Section 1 of the Charter states that:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.
The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.
Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineley, in which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.
The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board. Garth was lead counsel in this case.
Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act. Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division. In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.
Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here: