Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki

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Last updated on October 24th, 2020

On the 9th podcast episode, Garth Barriere and Eric Purtzki joins 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.

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