Cruel and Unusual Punishment
Section 12 of the Charter guarantees under the heading of "Treatment or punishment" provides:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The meaning of "cruel and unusual" focuses on whether the "treatment" was "grossly disproportionate" or "outrages the standards of decency".
- See R v Smith, 1987 CanLII 64 (SCC),  1 SCR 1045 at pages 1072-74
Treatment or Punishment
The impositIon of a SOIRA Order is not.
Cruel and Unusual
Whether a sentence is "cruel and unusual" depends on "whether the sentence is grossly disproportionate", which requires that it be more than "excessive", "unfit" or "excessive". It must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable".
There are two steps in the analysis:
- examine the effect of the provision on the particular offender, which includes looking at the factors of:
- the gravity of the offence,
- the personal characteristics of the offender and the circumstances of the case,
- the actual effect of the punishment on the individual,
- the penological goals and sentencing principles upon which the sentence is fashioned,
- the existence of valid alternatives to the punishment imposed, and
- a comparison of punishments imposed for other crimes in the same jurisdiction
- if the punishment is not grossly disproportionate, consider "reasonable hypotheticals" that "could commonly arise in day-to day-life" but are not far-fetched or "marginally imaginable"
R v Ferguson, 2008 SCC 6 (CanLII),  1 SCR 96 at para 14
R v Smith,  1 SCR 1045, 1987 CanLII 64 (SCC),
R v McDonald, 1998 CanLII 13327 (ON CA),  OJ 2990 (ONCA) at para 68 ("The test for whether a punishment is cruel and unusual is whether it is grossly disproportionate to what would have been appropriate. The punishment must be so excessive as to outrage standards of decency. A sentence that is merely excessive or even unfit, is not necessarily grossly disproportionate.")
Montague at para 40
R v Morrissey, 2000 SCC 39 (CanLII),  2 SCR 90, at paras 27-28
R v Latimer, 2001 SCC 1 (CanLII),  1 SCR 3, at para 75
R v Nur, 2013 ONCA 677 (CanLII), 117 O.R. (3d) 401, at para 78
- R v Goltz, 1991 CanLII 51 (SCC),  3 SCR 485, at pp. 505, 516
Real cases should be used as starting points when crafting a reasonable hypothetical.
A reasonable hypothetical cannot be "far‑fetched or marginally imaginable cases" or "remote or extreme examples".
The question of "reasonable hypothetical" is simply asking whether "it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples' situations, resulting in a violation of s.12." The consideration should focus on "whether the sentence would be grossly disproportionate in reasonably foreseeable cases".
A penalty will be found to violate s. 12 of the Charter where "the punishment prescribed is so excessive as to outrage standards of decency".
The analysis of the constitutionality of the sentencing provisions requires two inquiries.
First, the judge must consider whether the sentence is cruel and unusual punishment based on the circumstances of the offender and offence. This involves determining what the fit and proper sentence is. Where it is "grossly disproportionate" to the mandatory minimum there will be a section 12. If it is not disproportionate, the judge may then consider reasonably hypothetical situations could be "grossly disproportionate" and be in violation of s. 12.
There are only three instances where the Supreme Court of Canada have found that minimum sentences to be unconstitutional.
R v Smith, 1987 CanLII 64 (SCC),  1 S.C.R. 1045 per Lamer J. at p. 1072 [SCR]
R v Miller,  2 SCR 680, 1976 CanLII 12 (SCC) at p. 688 [SCR]
- Smith, supra
- R v Crockwell, 2013 CanLII 8675 (NL SCTD) at para 32
Smith, supra - 7 year minimum for importing narcotics
R v Nur, 2015 SCC 15 (CanLII) - 3 year minimum for possessing prohibited or restricted firearm with ammo
R v Lloyd, 2016 SCC 13 (CanLII) - 1 year minimum for trafficking marijuana
To determine if a sentence is "grossly disproportionate" the court consider factors including:
- the harm caused by the offence
- the effect of the criminalized conduct on the individual victims and the broader community;
- the extent to which the harm done by the prohibited conduct impacts disproportionately on discrete and particularly vulnerable categories of victims;
- the problems associated with the effective prevention and detection of the criminal activity involved in the offence;
- the value as a deterrent of mandatory minimum sentences; and
- the legislative intent and purpose of the provision.
R v Smith at p. 1073 (SCR) per Lamer J.
R v Roach, 2009 ONCA 156 (CanLII) at para 9
R v Goltz,  3 SCR 485, 1991 CanLII 51 (SCC), at p. 500
R v Morrisey,  2 SCR 90, 2000 SCC 39 (CanLII) at paras 27‑28
see also R v Wiles, 2005 SCC 84 (CanLII),  3 SCR 895
R v Ferguson, 2008 SCC 6 (CanLII), (2008), 228 CCC (3d) 385 (S.C.C.)
Section 5(1) of the Narcotics Control Act which required a 7 year minimum for importing controlled substances into Canada was found to be cruel and unusual.
Section 99(2) mandatory minimum of 3 years was found to be unconstitutional.
Factors to consider whether police treatment of the accused amounts to cruel and unusual include:
- the decision to use force of any kind in the first instance;
- the nature and seriousness of the offence for which the arrest was made;
- the certitude that the offence for which the arrest was made actually occurred;
- the need for detention as an aspect of intervention;
- the protection of the officers and other persons from violence;
- the prospect of flight/escape;
- the likelihood of continuation/resumption of the offending conduct;
- the apparent physical condition of the person being arrested and/or alleged victims;
- police modules and training affecting the use of force;
- the prospect of escalation and retaliation;
- knowledge of the identity and access to the person to be arrested;
- the nature and extent of the force reasonably contemplated as likely to be necessary; and
- other exigent circumstances.
In relation to sentencing, see Charter Issues in Sentencing#Cruel_and_Unusual_Punishment.
Treatment While in Custody
Segregation per se is not cruel and unusual punishment, it must be "so excessive as to outrage standards of decency".
R v Olson, 1987 CanLII 4314 (ON CA), (1987), 38 CCC (3d) 534 (Ont. C.A.), aff’d  1 SCR 296, 1989 CanLII 120 (SCC) (“[s]egregation to a prison within a prison is not, per se, cruel and unusual treatment … [but] it may become so if it is so excessive as to outrage standards of decency.”)
R v Marriott, 2014 NSCA 28 (CanLII)