Compared to many other rights in the Charter, s. 27(2) and s. 27(3) have a clearly defined sphere of operation. You need to consider s. 27(2) and s. 27(3) in assessing legislation, a policy or a program that is relevant to sentencing in criminal law, where it:

  • seeks to introduce a new range of sentencing initiatives that expand or reduce the scope of possible sanctions or that impose further restrictions or remove restrictions on convicted offenders;
  • seeks to extend the period of detention of persons who have been convicted of an offence;
  • alters penalties or penalty levels for offences;
  • introduces or makes changes to the orders that can be made on conviction that are in the nature of a penalty.


These policy triggers are not exhaustive.