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Definition of punishment


If a prohibition that is imposed as part of a criminal sentencing process meaningfully restricts the liberty or security interest of an accused, the object of the prohibition is sufficiently punitive to attract the presumption against retrospectivity, even if it also serves to protect the public. R v Hooyer, 2016 ONCA 44 at paras 41-44. E.g.: a DNA order or a sex-offender registry order would not be regarded as punishment: para 45


Application of the presumption


The application of the presumption against retrospectively applies to criminal laws.  It does not depend on the specific terms of an order made by a judge under a criminal law in a given case: R v Hooyer, 2016 ONCA 44 at para 46  



Time of Commission

Section 11(i) fixes “the time of commission” of the offence as one of the two relevant points in time to be considered when applying the section - the other being the time of sentencing. A crime is committed when culpability attaches. In the case of a conspiracy, liability attaches when the accused forms the agreement to commit the offence: R v Lalonde, 2016 ONCA 923, at paras 26-28

Specific examples


The presumption against retrospectively applies in interpreting the temporal scope of that section: R v Hooyer, 2016 ONCA 44 at paras 48-49

In R v Lalonde, 2016 ONCA 923, the Court of Appeal held that the retrospective abolition of eligibility for accelerated parole increased the punishment on inmates and therefore violated s 11(i). 


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