Cruel and Unusual Punishment: Difference between revisions

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==Mootness==
Where a challenge under s. 12 of the Charter is before the statutory provincial court, that court may, at its discretion, elect not to determine the constitutionality of the mandatory minimum penalty at issue.<ref>
See {{CanLIIR|RA|j13lj|2019 NWTTC 10 (CanLII)}}{{perNWTTC|Gorin J}}{{AtL|j13lj|35}} ("Certainly a statutory court may make a preliminary finding that determining the issue could not make a difference in the case before it and accordingly elect not to determine the MMP’s constitutionality.  However, the question of mootness is distinct from the issue of the MMP’s constitutional validity.")<br>
{{CanLIIRP|Lloyd|gpg9t|2016 SCC 13 (CanLII)|[2016] 1 SCR 130}}{{atsL|gpg9t|18| to 19}} ("To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision­making process in the case.")
</ref>
However, it has been suggested that where MMPs create inflationary floors it is necessary to consider their validity in order to calibrate the appropriate range in any event.<Ref>
{{CanLIIRP|Doucette|jcpht|2021 ONSC 371 (CanLII)}}{{perONSC|Schreck J}}{{atL|jcpht|21}}
</ref>
{{reflist|2}}
=="Grossly Disproportionate"==
=="Grossly Disproportionate"==
It will only be in "rare and unique" cases where the court will find a sentence grossly disproportionate.<Ref>
It will only be in "rare and unique" cases where the court will find a sentence grossly disproportionate.<Ref>

Revision as of 14:05, 9 June 2021

General Principles

Section 12 of the Charter guarantees under the heading of "treatment or punishment" that:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

– CCRF

The meaning of "cruel and unusual" focuses on whether the "treatment" was "grossly disproportionate" or "outrages the standards of decency".[1] The standard is a "high bar".[2] Courts should be careful not to "stigmatize every disproportionate or excessive sentence".[3]

The two words "cruel" and "unusual" are not to be treated as conjunctive whereby separate assessments for each word are required. They should be tread as a "compendious expression of a norm".[4]

Remedy

A constitutional exemption is not an available remedy where a mandatory minimum violates s. 12 of the Charter.[5]

History

The source of the phrase "cruel and unusual punishment" finds its origin in the English Bill of Rights of 1688, which protected against excessvie fines and punishment.[6]

  1. ↑ See R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Wilson J, at pp. 1072-74
  2. ↑ R v Hills, 2020 ABCA 263 (CanLII), per O’Ferrall JA, at para 37
  3. ↑ Smith, supra at para 55 ("The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence")
  4. ↑ Hills, ibid., at para 114
    Miller et al v The Queen, 1976 CanLII 12 (SCC), [1977] 2 SCR 680 at 689-90(complete citation pending)
  5. ↑ R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ, at para 2
  6. ↑ 9147-0732 Québec inc. c. Directeur des poursuites criminelles et pénales, 2019 QCCA 373 (CanLII), per Belanger JA, at para 113 (2:1)

Treatment or Punishment

The imposition of a weapons prohibition under s. 109 is a form of punishment.[1] As is the making of a forfeiture order.[2]

The imposition of a SOIRA Order is not.[3]

  1. ↑ R v Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895, per Charron J, at para 3 ("The Crown concedes that a weapons prohibition order constitutes a “treatment or punishment” within the meaning of s. 12 of the Charter. In my view, this concession is well made. Although the purpose of the prohibition order is primarily preventative, in taking away the privilege to possess weapons, it may have some punitive effect on the offender. The question then is whether the loss of this privilege upon conviction of the offence of production is “cruel and unusual”.")
  2. ↑ R v Montague, 2014 ONCA 439 (CanLII), 120 OR (3d) 401, per Feldman JA, at para 38 ("In my view, the explanation that applies to loss of the right to possess weapons can also apply to the forfeiture of weapons under s. 491(1)(b). Even if the forfeiture is not intended to be a punishment as part of the sentence, it is a consequence of conviction of certain weapons offences that may have a punitive effect. Furthermore, the Crown has allowed in its factum that the forfeiture provision may be a “treatment” for the purpose of s. 12 of the Charter.")
  3. ↑ R v Cross, 2006 NSCA 30 (CanLII), 205 CCC (3d) 289, per Bateman JA

Cruel and Unusual Punishment

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".[1]

There are two steps in the analysis:[2]

  1. examine the effect of the provision on the particular offender, which includes looking at the factors of:
    1. the gravity of the offence,
    2. the personal characteristics of the offender and the circumstances of the case,
    3. the actual effect of the punishment on the individual,
    4. the penological goals and sentencing principles upon which the sentence is fashioned,
    5. the existence of valid alternatives to the punishment imposed, and
    6. a comparison of punishments imposed for other crimes in the same jurisdiction
  2. 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"[3]
One Proposed Approach

It has been suggested that analysis should follow these steps:[4]

  1. determine a fit sentence (absent the mandatory minimum) which is proportional to the gravity of the accused’s crime and circumstances in the context of relevant sentencing objectives and principles;
  2. determine whether the statutorily prescribed mandatory minimum sentence is grossly disproportionate to the accused’s offence and personal circumstances;
  3. determine whether the mandatory minimum sentence would be grossly disproportionate for a reasonably foreseeable hypothetical offender; and
  4. the appropriate sentence for the accused.
  1. ↑ R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ, at para 14 ("The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”: ... .")
    R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Wilson J
    R v McDonald, 1998 CanLII 13327 (ON CA), [1998] OJ 2990 (ONCA), per Rosenberg JA, 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.")
  2. ↑ R v Montague, 2014 ONCA 439 (CanLII), 120 OR (3d) 401, per Feldman JA, at para 40 ("The test is applied in a two-stage analysis. The court first examines the effect of the impugned provision on the particular offender. That involves considering a number of contextual factors including: 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 found to be grossly disproportionate for the affected individual, then at the second stage, the court is to consider “reasonable hypotheticals” that “could commonly arise in day-to day-life” but are not far-fetched or “marginally imaginable”:...")
    R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at paras 27 to 28
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 75 ("...a full contextual understanding of the sentencing provision also requires a consideration of 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. However, not all of these matters will be relevant to the analysis and none of these standing alone will be decisive to a determination of gross disproportionality.")
    R v Nur, 2013 ONCA 677 (CanLII), 117 OR (3d) 401, per Doherty JA, at para 78, appealed to 2015 SCC 15 (CanLII), per McLachlin CJ
  3. ↑ R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gothier J, at pp. 505, 516
  4. ↑ R v Cvitko, 2021 ABPC 52 (CanLII), per Saccomani J, at para 17

"Grossly Disproportionate"

It will only be in "rare and unique" cases where the court will find a sentence grossly disproportionate.[1]

Gross disproportionality must be in "regard of the nature of the offence and circumstances of the offender".[2]

What is grossly disproportionate must be "more than merely excessive".[3] It has been suggested that a sentence that is grossly disproportionate is not necessarily cruel and usual.[4]

The standard for s. 12 must apply a "stringent and demanding" test or else risk "trivializing the Charter".[5]

The sentence must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to Canadian society.[6]

A person should not be permitted to "suffer a grossly disproportionate punishment simply to send a message to discourage others from offending".[7]

To determine if a sentence is "grossly disproportionate" the court consider factors including:[8]

  • 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.

The court may also consider:[9]

  • "whether the punishment is necessary to achieve a valid penal purpose,"
  • "the effects of the punishment on the actual or a hypothetical offender"
  • "whether the punishment is founded on recognized sentencing principles" and
  • "whether there are valid alternatives to the punishment"

No consideration by itself is considered determinative.[10]

  1. ↑ R v Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 SCR 1385, per Cory J at 1417 (SCR) ("It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter.")
  2. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 39
    R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Lamer J at p. 1073
  3. ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ, at para 24
    Smith, supra, at p. 1072
  4. ↑ R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, per O'Farrell JA (concurring), at para 116
  5. ↑ Steele, supra at p. 1417 (SCR) ("It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter.")
  6. ↑ Lloyd, ibid., at para 24
    R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ
    R v Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 26
    Smith, supra, at p. 1072
  7. ↑ Nur, supra, at para 45
  8. ↑ Smith, ibid., at p. 1073 (SCR), per Lamer J
    R v Roach, 2009 ONCA 156 (CanLII), 246 OAC 96, per Doherty JA, at para 9
    R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gonthier J, at p. 500
    Morrisey, supra, at paras 27 to 28
    see also R v Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895, per Charron J
    Ferguson, supra
  9. ↑ R v Boudreault, 2018 SCC 58 (CanLII), [2018] 3 SCR 599, per Martin J, at para 48
    Smith, supra, at p. 1072
    Goltz, supra, at p. 500
  10. ↑ R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 75

Reasonable Hypotheticals

A "reasonable hypothetical", divorced from the specific facts of the case, is permitted to be argued on a s. 12 challenge.[1] The scope of hypothetical is limited to those cases that are "reasonably foreseeable".[2]

The reason for this is because the focus of the analysis should be on the "nature of the law" and not the "status of the accused". By disallowing hypotheticals, violate the rule of law to permit constitutional laws to "remain on the books indefinitely" waiting for the right set of facts.[3] It would "dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order."[4] It would "undermine the prospect of bringing certainty to the constitutionality of legislation".[5] No one should be subject to an unconstitutional law.[6]

The use of hypotheticals is a manner of asking the questions: (a) what is the reach of the law? (b) what kind of conduct is the law reasonably expected to catch? and (c) what is the law's foreseeable impact?[7]

The "Likelihood" of the Hypothetical

It must be a hypothetical that will render a disproportionate sentence for "some peoples' situation".[8] It should not be based in "mere speculation".[9] A law should not be struck down "on the basis of examples that were unlikely ever to arise".[10]

A reasonable hypothetical cannot be "far‑fetched or marginally imaginable cases" or "remote or extreme examples".[11] This would include cases with the most innocent and sympathetic case imaginable.[12]

That being said, the hypothetical can be foreseeable and "unlikely to arise.[13]

Personal characteristics are permitted to be included in the hypothetical so long as they do not produce remote or far-fetched examples.[14]

It is recommended that the judge start with actual real cases that have arisen as starting points when crafting a reasonable hypothetical.[15] From that real case, the court may then "make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable".[16]

The court may consider reported cases as examples of actual cases "provided that the relevant facts are sufficient report".[17] Any reported cases, no matter how marginal or uncommon, can be used as a reasonable hypothetical.[18]

Reasonably foreseeable test

A law will violate s. 12 where its "reasonably foreseeable applications" would impose grossly disproportionate sentences on other offenders.[19]

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."[20] The consideration should focus on "whether the sentence would be grossly disproportionate in reasonably foreseeable cases".[21]

Other requirements of hypothetical

The hypothetical situations must be "grounded in judicial experience and common sense."[22]

marginal or outlier circumstances

Reasonably foreseeable hypotheticals include "outlier" cases that are not likely to occur or to be prosecuted with great frequency.[23] It should not exclude "marginal" conduct either.[24]

The foreseeability is not restricted to those "likely to arise in the general day-to-day application of the law".[25] Nor does the standard exclude those offences that are unlikely to arise.[26]

Discretion of Police and Crown not a factor

The fact that Crown or police will likely exercise discretion to not allow a prosecution is not a relevant consideration.[27] Nor is it a factor that the Crown may exercise discretion to re-elect to proceed by summary conviction.[28]

Connection with charges

The hypothetical must make out the actual offence charged and not a related or similar offence, nor can it be composed of facts that "leaves uncertainty about whether the offence is actually made out".[29]

Personal Characteristics

Personal characteristics of the offender cannot be "entirely excluded".[30] However, it is not appropriate to use "personal features to construct the most innocent and sympathetic case imaginable".[31]

  1. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 51
    See also R v Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295 per Dickson J(complete citation pending) at p. 314 ("[i]t is the nature of the law, not the status of the accused, that is in issue")
  2. ↑ Nur, ibid., at para 58
  3. ↑ Nur, supra, at para 51 and 64
  4. ↑ Nur, supra, at para 63
  5. ↑ Nur, supra, at para 64
  6. ↑ Nur, supra, at para 51
    Big M, supra at p. 313 (SCR)
  7. ↑ Nur, supra, at para 61
  8. ↑ Nur, supra, at para 57
  9. ↑ Nur, supra, at para 62 ("Laws should not be set aside on the basis of mere speculation.")
  10. ↑ Nur, supra at para 54
  11. ↑ R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gonthier J, at pp. 506 and 515 [SCR]
    R v Charboneau, 2019 ABQB 882 (CanLII), at para 54 ("According to the analytical framework in Nur and Lloyd, a law violates s 12 if its “reasonably foreseeable applications” would impose grossly disproportionate sentences on offenders not currently before the court ... . To determine this, the court considers hypothetical situations where the mandatory minimum sentence would apply. These hypotheticals must be reasonable; hypotheticals that are fanciful or remote are excluded from consideration.")
    ("The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.")
  12. ↑ Nur, supra at para 75 ("...far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality.")
  13. ↑ Nur, supra at para 68
  14. ↑ Nur, supra at para 76
  15. ↑ R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 33 ("Again, it is to be remembered that the courts are to consider only those hypotheticals that could reasonably arise. Homicide is far from a common occurrence in Canada. Criminal negligence causing death with a firearm is even less common. It is thus appropriate to develop hypotheticals from the case law by distilling their common elements. Goltz requires that hypotheticals be “common” rather than “extreme” or “far-fetched”. It is sufficient when dealing with a rare and uncommon crime that the hypotheticals be common examples of the crime rather than examples of common occurrences in day-to-day life. However, in constructing hypotheticals, courts can be guided by real life cases, but to the extent that these cases may not be exhaustively reported, they are not bound to limit the fashioning of hypotheticals to the cases that are made available to them. In fashioning hypotheticals for the purpose of a s. 12 analysis, reported cases can be used with caution as a starting point, and additional circumstances can be added to the scenario to construct an appropriate model against which to test the severity of the punishment. ")
    Nur, ibid., at para 62 ("The judge may wish to start with cases that have actually arisen ..., and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded")
  16. ↑ Nur, ibid., at para 62
  17. ↑ Nur, ibid., at para 72 ("A third ancillary question is whether reported cases should be considered in determining whether it is reasonably foreseeable that a mandatory minimum sentencing provision will result in cruel and unusual punishment, contrary to the s. 12 guarantee. The majority in Morrisey said reported cases should be excluded if the court considers them “marginal”, and the minority, without qualification, said they may be considered. In my view, they can. Reported cases illustrate the range of real-life conduct captured by the offence. I see no principled reason to exclude them on the basis that they represent an uncommon application of the offence, provided that the relevant facts are sufficiently reported. Not only is the situation in a reported case reasonably foreseeable, it has happened. Reported cases allow us to know what conduct the offence captures in real life. However, they do not prevent the judge from having regard to other scenarios that are reasonably foreseeable: see Morrisey, at para. 33.")
  18. ↑ Charboneau, supra, at para 57
  19. ↑ R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ, at para 22 ("The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: ... . A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: ...")
  20. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 57
  21. ↑ Nur, ibid., at para 57 (" Unfortunately, the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. The question is simply 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 terminology of “reasonable hypothetical” may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional interpretation.")
  22. ↑ Nur, ibid., at para 62 ("The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense.") see also para 75
  23. ↑ R v Morrison, 2019 SCC 15 (CanLII), [2019] 2 SCR 3, per Moldaver J
  24. ↑ Nur, supra, at para 68 ("The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz, at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.")
  25. ↑ Nur, ibid., at para 68
  26. ↑ Charboneau, supra, at para 57
  27. ↑ Charboneau, supra, at para 58
  28. ↑ R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per Martin JA, at para 17 ("These hypotheticals are reasonable, foreseeable and realistic, and some are versions of actual cases. In my opinion, in the absence of a mandatory minimum provision, all would call for a sentence ranging from a suspended sentence to a conditional sentence, or at the most, a custodial sentence measured in days, not months. Accordingly, all demonstrate that the mandatory minimum sentence of one year imprisonment required to be imposed upon conviction of an offence under s 151(a) is grossly disproportionate as that term has been defined in Nur and Lloyd. As noted in Nur at paras 85–88, Crown discretion to proceed by summary conviction or to decline to charge cannot save a minimum sentence that mandates cruel and unusual punishment.")
    Nur, supra, at paras 85 to 88
  29. ↑ R v Charboneau, 2019 ABQB 882 (CanLII), at para 56
    R v EJB, 2018 ABCA 239 (CanLII), at para 66 ("As said, the search for a reasonable hypothetical, the existence of which would undermine the constitutionality of a minimum sentence, must consider a reasonable hypothetical for the crime charged and not for some other crime: ... . Nor would it be appropriate to consider a hypothetical set of facts where the offender might be acquitted of the offence charged. Nor would it be appropriate to consider factors in the hypothetical that do not or should not diminish the culpability of the offender for the crime charged.")
  30. ↑ Nur, ibid., at para 74
  31. ↑ Nur, ibid., at para 75

Examples

The following hypotheticals have been judicially approved:

  • For an offence under s, 286.1 [communication for purpose of obtaining sexual services of a minor], the hypothetical of paying a person under the age of 18 for a kiss has been approved.[1]
  • An 18 year old "communicating with a more sophisticated 17 year old where the younger individual quickly rebuffs the advances and no further action is taken".[2]
  1. ↑ R v Badali, 2016 ONSC 788 (CanLII), per Glass J, at para 67
    R v Alvi, 2018 ABPC 136 (CanLII), per Robertson J, at para 71
  2. ↑ R v JLM, 2017 BCCA 258 (CanLII), 353 CCC (3d) 40, per Bennett JA, at para 60 ("Another example is a naïve 18-year-old young person who awkwardly propositions a more sophisticated 17-year-old classmate with money for a sexual service, and is immediately rebuffed (and likely ridiculed). A six-month minimum jail sentence would clearly be grossly disproportionate to this act and offender. A young adult offender with mental disabilities, who may have the mental function of a young teenager, would also be vulnerable to the mandatory minimum sentence if they engaged in conduct as noted above.")
    Alvi, supra

Mandatory Minimum Penalties

See also: Mandatory Minimum Penalties

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".[1]

A mandatory minimum is by its nature a departure from the principle of proportionality.[2] It modifies the ability of judges to review "all relevant factors".[3] It "deprive[s] courts of the ability to tailor proportionate sentences" in the lower end of the range and in extreme cases impose unjust sentences.[4]

Two-Phase Inquiry

The analysis of the constitutionality of the sentencing provisions requires two phases.[5]

First, the judge must consider whether the minimum sentence is grossly disproportionate to the circumstances of the offender and offence before the court.[6] If the sentence is disproportionate, then the minimum is unconstitutional.

Second, if the sentence is not disproportionate, the judge may then move on to perform the same analysis on what it would consider to be a reasonable hypothetical would be grossly disproportionate.[7]

The analysis of disproportionality requires the court to:

  1. determine what is a proportionate sentence for the offence, absent the mandatory minimum. Only a rough scale of the appropriate sentence is required. There is no need for setting a sentence or range.[8]
  2. ask whether the mandatory minimum will require the imposition of a grossly disproportionate sentence.[9]
History of Mandatory Minimum Challenges

Prior to 2016, there were only three instances where the Supreme Court of Canada have found that minimum sentences to be unconstitutional.[10]

  1. ↑ R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Lamer J, at p. 1072 [SCR]
    R v Miller, 1976 CanLII 12 (SCC), [1977] 2 SCR 680, per curiam, at p. 688 [SCR]
  2. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 44
  3. ↑ Nur, ibid., at para 44
  4. ↑ Nur, ibid., at para 44
  5. ↑ Smith, supra
    Nur, supra, at para 46
    R v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 SCR 130, per McLachlin CJ, at para 23
  6. ↑ Nur, supra, at para 77
    Lloyd, supra, at para 22
  7. ↑ R v Crockwell, 2013 CanLII 8675 (NLSCTD), per Leblanc J, at para 32
    Nur, supra, at para 77
    Lloyd, supra, at para 22
  8. ↑ R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per Martin JA, at para 10
    Lloyd, supra, at para 23
  9. ↑ Ford, ibid., at para 10 Lloyd, supra, at para 23
  10. ↑ Smith, supra - 7 year minimum for importing narcotics
    Nur, supra - 3 year minimum for possessing prohibited or restricted firearm with ammo
    Lloyd, supra - 1 year minimum for trafficking marijuana

Considered Offences

See also: Mandatory Minimum Penalties

Police Conduct

Factors to consider whether police treatment of the accused amounts to cruel and unusual include:[1]

  1. the decision to use force of any kind in the first instance;
  2. the nature and seriousness of the offence for which the arrest was made;
  3. the certitude that the offence for which the arrest was made actually occurred;
  4. the need for detention as an aspect of intervention;
  5. the protection of the officers and other persons from violence;
  6. the prospect of flight/escape;
  7. the likelihood of continuation/resumption of the offending conduct;
  8. the apparent physical condition of the person being arrested and/or alleged victims;
  9. police modules and training affecting the use of force;
  10. the prospect of escalation and retaliation;
  11. knowledge of the identity and access to the person to be arrested;
  12. the nature and extent of the force reasonably contemplated as likely to be necessary; and
  13. other exigent circumstances.

In relation to sentencing, see Charter Issues in Sentencing#Cruel and Unusual Punishment.

  1. ↑ R v Knight, 2010 ONCJ 400 (CanLII), 79 CR (6th) 39, per Clark J
    R v Magiskan, 2003 CanLII 859 (ON SC), [2003] OJ No 4490, per Zelinski J, at para 27

Treatment While in Custody

Segregation per se is not cruel and unusual punishment, it must be "so excessive as to outrage standards of decency".[1]

  1. ↑ R v Olson, 1987 CanLII 4314 (ON CA), 38 CCC (3d) 534, per Brooke JA, aff’d [1989] 1 SCR 296, 1989 CanLII 120 (SCC), per curiam (“[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), per Oland JA

See Also

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