Section 11(g) of the Charter of Rights and Freedoms ensures that everyone has the right not to be found guilty on account of an act or omission, unless at the time of the act or omission, it constituted a criminal offence under Canadian or International law or was criminal according to the general principles of law recognized by the community of nations. In short, section 11(g) protects everyone from being found guilty of an offence that was not an offence at the time it was committed.
What is the Right not to be Found Guilty of an Offence if it was not an Offence at the Time it was Committed?
Section 11(g) of the Charter guarantees everyone the right not to be found guilty of committing an offence if it was not an offence at the time it was committed. A fundamental principle of our justice system is that people must be provided with sufficient notice of the laws and regulations of the land. This means laws must be clear and accessible to the population. Individuals must be able to foresee the consequences of their actions so as to know what to avoid. For this reason, this section applies only to statutorily created laws, not those created through judge made caselaw.
From time to time, the Canadian government will make changes to the Criminal Code and other pieces of federal legislation. This may include repealing existing sections or subsections, adding to existing sections or subsections, or adding entirely new sections including new offences.
When a new law is passed that creates a new offence, it will be added to the Criminal Code or whichever pieces of federal legislation it relates to. Once the law is deemed to be in effect by the government, anyone who commits that offence through an act or omission may be charged and convicted. However, if an individual committed the offence before it became illegal, they cannot be convicted of the offence. Essentially, new offences cannot be applied retroactively. If it was not a crime or other offence at the time, you cannot be convicted.
Person A is arrested and charged with the offence of causing another individual to undergo conversion therapy contrary to section 320.102 of the Criminal Code. The information (charging document) indicates that person A committed this act between May 2016 and September 2016. Offences related to conversion therapy were not added to the Criminal Code until 2021. Section 11(g) of the Charter applies, and person A cannot be found guilty of the offence because it was not an offence in 2016.
When is the Right Triggered?
The right not to be found guilty of an offence that was not an offence at the time it was committed is triggered immediately once an individual is charged with an offence. When an individual is charged with a criminal offence the police must specify the date of the offence, or at the very least a date range. If the offence was created after the date of the act or omission that constitutes the offence, section 11(g) will apply, and the accused cannot be convicted.
What happens if the Right is Violated?
Once an individual is charged with an offence, they must be provided with particulars of the alleged offence including the date of the offence. If the offence date is before the date that the offence itself was created, the accused cannot be convicted. Defence counsel may raise this issue with the Crown prior to trial, which may result in the Crown withdrawing the charges. If the Crown refuses, a section 11(g) Charter challenge may be necessary to quash the proceedings.
R. v. Finta,  1 SCR 701
In the case of R. v. Finta, the Supreme Court of Canada addressed section 11(g) of the Charter in relation to war crimes. The accused was charged with various Criminal Code offences including unlawful confinement, robbery, kidnapping, manslaughter, and war crimes after helping to process and transport Jewish individuals in Hungary during World War II. The individuals were placed on trains by the accused and other soldiers and sent to death camps. The Criminal Code offences relating to war crimes were not in the Criminal Code during WWII. The accused argued, among other things, that his section 11(g) Charter right was being violated.
The Court rejected the argument, stating that the accused right had not been violated. The Court reasoned that the acts were morally objectionable, and any reasonable person should have known that they were wrong. They reasoned that even though the offences themselves did not exist; the accused acts were certainly illegal at the time they were committed according to the general principles of law.
R. v. Levkovic,  2 SCR 204
In the case of R. v. Levkovic, the Supreme Court of Canada discussed section 11(g) of the Charter and the rule of law, indicating that in any free and democratic society, it is essential that people are able to foresee the consequences of their actions to be able to avoid punishment. To accomplish this, citizens must be provided fair notice of the laws of the land. In criminal law, this is particularly important given that those who are found guilty of criminal offences are liable to lose their liberty. Government must provide citizens with clear, legislative standards regarding what is permissible within society and what is not.