Section 11(i) of the Charter of Rights and Freedoms guarantees everyone the right, 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.
What is the Right to Benefit from Lesser Punishment?
Pursuant to section 11(i) of the Charter, everyone has the right, 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. This means that if the punishment for the offence the accused has been convicted of has changed since the offence was committed, the accused will get to benefit from whichever penalty is lower.
From time to time the federal government makes changes to the Criminal Code and other pieces of federal legislation. This may include altering the penalties and punishments for various offences. Sometimes, people are not arrested and charged for an offence they have committed until years or even decades later. For example, it is common for victims of sexual abuse to take years to come forward with their story, meaning the perpetrator will not be arrested until long after the crime occurred. If the accused person is ultimately convicted of the offence and the punishment for the offence has changed at some point after the offence was committed, the offender will benefit from the lesser punishment.
Person A is charged historical with sexual assault and sexual interference after a family friend made allegations of sexual abuse dating back to the 1980’s. The complainant was 13 years old at the time of the alleged offence.
Person A goes to trial and is ultimately convicted of the offences as charged. At the time the offences were committed in the 1980’s the maximum penalty for the offences charged was 10 years in prison. At the time person A is convicted, the maximum penalty is 14 years in prison. Person A can only be sentenced to a maximum of 10 years in prison as he is entitled to benefit from the lesser sentence.
When is the Right Triggered?
The right to benefit from the lesser punishment is triggered once an individual is convicted of an offence.
What Happens if the Right is Violated?
If an individual is convicted of an offence and denied the benefit of the lesser punishment by the trial judge, they may appeal their sentence, arguing that their section 11(i) Charter right has been violated. If their appeal is successful, the sentence may be reduced by the appeal court.
R. v. Rodgers,  1 SCR 554
In the case of R. v. Rodgers, the Supreme Court of Canada addressed the meaning of punishment in the context of section 11(i) of the Charter. The Court indicated that not every consequence of a criminal conviction can be considered punishment. The Court affirmed that punishment does not only refer to prison time and fines imposed on those who have been convicted of an offence, it can include other consequences as well.
R. v. K.R.J.  1 SCR 906
In the case of R. v. K.R.J., the Supreme Court of Canada again addressed section 11(i) and the meaning of the word “punishment”. The Court determined that for something to be considered a punishment it must fit into one of three branches. Under the first branch, a measure can be considered punishment where is it the “consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence”. The measure will be considered punishment under the second branch if “it is imposed in furtherance of the purpose and principles of sentencing”. Finally, a measure will be considered a punishment under the third branch where “it has a significant impact on the offender’s liberty or security interests” [at para. 41].