- It is possible to charge with, convict of, and sentence for serious offences at any time, even 120 years later.
- The punishment is determined by checking the punishment at two points in time: at the time of commission, and at the time of sentencing. The lesser punishment applies. However, after expiry or repeal of a law, the punishment is not considered to have been reduced to zero but is instead the same penalty as immediately before expiry or repeal.
- The penalty for murder, treason, and piracy was lowered to life imprisonment, so sentences in 2022 for those crimes, even if committed in the past, cannot result in a death sentence, since section 11(i) of the Charter would reduce the penalty. The same applies to various military offences whose punishments were reduced from death to life imprisonment.
- Sentencing in 2022 for older crimes might result in a death sentence. What are those crimes that could result in a death sentence, or are there none?
There is no statute of limitations on hybrid and indictable offences, so people can be charged with hybrid and indictable offences at any time. This means an accused can be charged with and found guilty of offences committed 120 years ago.
However, summary offences must be charged within 12 months after they are committed.
In Canada, anyone can be charged with, convicted of, and sentenced for an offence committed in the past if it was an actual offence at the time of commission, even after expiry or repeal of the law for that offence. The offence for the charge does not need to be an offence at the time of charge, conviction, or sentencing, as long as it was an offence at the time of commission.
A person can still be charged with a repealed offence as long as the offence is in existence at the time that the offence was committed.
Under Section 11(i) of the Charter, "Any person charged with an offence 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." However, if something was previously an offence, but it later became no longer an offence, then the punishment was not "varied" and the punishment still applies to those convicted before it stopped being an offence. For example, if X is an offence on 2000-01-01 but no longer an offence on 2000-01-02, then "X on 2000-01-01" is an offence subject to the penalty if convicted on 2001-01-03, but "X on 2000-01-02" is not an offence.
The penalty immediately before the repeal would be the penalty at the time of sentencing for the purpose of section 11(i) of the Charter specifying lesser punishment, under the Interpretation Act:
43 Where an enactment is repealed in whole or in part, the repeal does not […]
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
As an example, on 2018-12-11, someone was charged with "pretending to practise witchcraft" under section 365(b) of the Criminal Code, even though it was repealed two days later on 2018-12-13, and conviction and sentencing were still possible when the article was published on 2018-12-19.
Timmins police charged 33-year-old Tiffany Butch on Dec. 11, accusing her of demanding money in return for lifting a curse. Two days later, Section 365 of the Criminal Code — which prohibits "pretending to practise witchcraft" — was formally repealed.
It's likely that Butch, who goes by the nickname "White Witch of the North," will be the last person in Canada to be charged, and potentially tried, for the offence.
Marc Depatie, a spokesperson for the Timmins force, said police and prosecutors work with the laws that are on the books at the time of the alleged offence, pointing to historical sexual offences as an example.
"That's why police and the Crown attorneys keep ancient, or aged, versions of the Criminal Code on hand, to see what laws apply," he said.
Depatie said the fact that the offence was about to be scrubbed from the Criminal Code was not a factor in the decision to lay the charge. Elements of the case were "best captured" by that section of the Criminal Code in consultation with the local Crown attorney's office, he said.
In these types of fraud cases, if the accused pays restitution, they would drop the charges, which is the outcome of that case when the Crown withdrew charges on 2019-03-26. However, if they pressed for charges and a conviction occurred later, a sentence would be based on the lesser of the penalty at the time of commission and time of sentencing, which would be up to imprisonment of 2 years less one day plus a fine of not more than $5,000. Even though section 365(b) would have been repealed at the time of sentencing, the punishment would still apply.
The article correctly says she was "likely" to be the last person charged and potentially tried, since later charges under this section were possible until 2019-12-12, 12 months after a possible charge for that offence committed on 2018-12-12.
In the case of a conviction for "having sexual relations with a stepdaughter in violation of paragraph 153(1)(a) of the Criminal Code (now repealed)" repealed at the time of sentencing (the section was also renumbered to 158, implying the offence was committed between 1970 and 1985), the court does not consider a repeal as the punishment being "varied" to zero:
The Court of Appeal also rejected the argument of there being a section 11(i) benefit due to the punishment having been, in effect, reduced to zero by the previous offence having been repealed
Section 11(i) does not afford the right to any “lesser punishment” that was temporarily available in the time between the commission of the offence and sentencing for that offence. Thus, in cases where an offence was committed before a lesser punishment became available, and where sentencing occurred after that lesser punishment was eliminated, the offender would not have the benefit of the lesser punishment available in the interim period. Rather, section 11(i) provides a binary right, granting only the lesser of two punishments: that on the date of the offence and that on the date of sentencing (Poulin, supra).
If sentencing occurs after repeal or expiry of an offence, the punishment still applies. The punishment at the time of sentencing, for the purpose of section 11(i), would be the punishment immediately before the repeal or expiry (see section 43 of Interpretation Act cited above).
Abolition of death penalty offences committed later
The penalty for murder, treason, and piracy was lowered to life imprisonment effective 1976-07-26, and the penalty for various military offences was lowered to life imprisonment effective 1999-09-01. Anyone convicted of these offences today would suffer life imprisonment instead of death, so these offences are no longer punishable by death, even if they were committed before 1976. In Criminal Law Amendment Act (No. 2), 1976, they also explicitly commute all death sentences for three particular offences: [(4) is omitted because it is similar to (2)]
25 (1) If, on the day this Act comes into force, any person is under a sentence of death for murder punishable by death that has not been commuted, that sentence thereupon becomes a sentence of imprisonment for life for first degree murder without eligibility for parole until he has served twenty-five years of his sentence.
(2) If, after the coming into force of this Act, an appeal against conviction by a person under a sentence of death upon the coming into force of this Act for murder punishable by death is dismissed, that sentence thereupon becomes a sentence of imprisonment for life for first degree murder without eligibility for parole until he has served twenty-five years of his sentence.
(3) If, on the day this Act comes into force, any person is under sentence of death for treason or piracy that has not been commuted, that sentence is deemed to have been commuted to imprisonment for life with like effect as if the commutation had been granted before the day this Act came into force.
They commute death sentences only for murder, treason, and piracy, so other older offences could still be punishable by death.
Death penalty not "cruel and unusual"
The Supreme Court found that the death penalty and even mandatory death penalty are not "cruel and unusual treatment or punishment" under section 2(b) of the Bill of Rights (Miller et al. v. The Queen,  2 S.C.R. 680).
However, the lesser punishment of life imprisonment without parole was recently found to be "cruel" punsishment (R. v. Bissonnette, 2022 SCC 23).
Would this judgement have any effect on death penalty sentencing in 2022? Or would it have no effect, because life imprisonment without parole is different from death (and somehow a punishment could be "cruel" but lesser than a punishment that is not "cruel"), or because it would be retroactive?
If there is some capital offence from a long time ago that is no longer an offence, without any reduction to its punishment, and someone in 2022 is convicted of committing that offence while it was still an offence, then it would be punishable by the death penalty. For example, if Y was an offence with death specified as the minimum punishment, but then it was repealed effective 1921-01-01 with death still specified as the minimum punishment when it was repealed, then someone convicted in 2022 of "Y on 1920-12-31" would be necessarily sentenced to death. Similarly, if an offence specified death as the maximum punishment, then someone convicted of it would be possibly sentenced to death. Do these offences exist, and if so, what are they? (even though the federal cabinet would probably commute a death sentence in 2022)
It would be hypocritical for Canada to characterize itself as a country opposed to capital punishment by refusing extradition when the possibility of death penalty would "shock the conscience", while simutaneously subjecting those under its jurisdiction to liability of death penalty for ancient, repealed/expired offences. Is there anything preventing this, such as a lack of applicable offences?