Criminal Law Notebook

Cruel and Unusual Punishment

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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]

  1. ↑ See R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Wilson J at pages 1072-74

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), per Charron J at para 3
  2. ↑ R v Montague, 2014 ONCA 439 (CanLII), per Feldman JA, at para 38
  3. ↑ R v Cross, 2006 NSCA 30 (CanLII), per Bateman JA

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".[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]
  1. ↑ R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ at para 14
    R v Smith, [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), 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. ↑ Montague at para 40
    R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at paras 27-28
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 75
    R v Nur, 2013 ONCA 677 (CanLII), 117 O.R. (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

Reasonable Hypotheticals

Real cases should be used as starting points when crafting a reasonable hypothetical.[1]

A reasonable hypothetical cannot be "far‑fetched or marginally imaginable cases" or "remote or extreme examples".[2]

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."[3] The consideration should focus on "whether the sentence would be grossly disproportionate in reasonably foreseeable cases".[4]

  1. ↑ R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 33
  2. ↑ R v Goltz, 1991 CanLII 51 (SCC), [1991] 3 SCR 485, per Gonthier J, at p. 506 and 515 [SCR]
  3. ↑ R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ at para 57
  4. ↑ Nur, ibid. at para 57

Mandatory Minimums

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]

The analysis of the constitutionality of the sentencing provisions requires two inquiries.[2]

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.[3]

There are only three instances where the Supreme Court of Canada have found that minimum sentences to be unconstitutional.[4]

  1. ↑ R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Lamer J at p. 1072 [SCR]
    R v Miller, [1977] 2 SCR 680, 1976 CanLII 12 (SCC), per curiam at p. 688 [SCR]
  2. ↑ Smith, supra
  3. ↑ R v Crockwell, 2013 CanLII 8675 (NL SCTD), per Leblanc J at para 32
  4. ↑ Smith, supra - 7 year minimum for importing narcotics
    R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ - 3 year minimum for possessing prohibited or restricted firearm with ammo
    R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ - 1 year minimum for trafficking marijuana

"Grossly Disproportionate"

What is grossly disproportionate must be "more than merely excessive".[1]

The sentence must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to Canadian society.[2]

To determine if a sentence is "grossly disproportionate" the court consider factors including:[3]

  • 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.
  1. ↑ R v Lloyd, [2016] 1 SCR 130, 2016 SCC 13 (CanLII), per McLachlin CJ, at para 24
  2. ↑ Lloyd, ibid. at para 24
    R v Ferguson, [2008] 1 SCR 96, 2008 SCC 6 (CanLII), per McLachlin CJ
    R v Morrisey, [2000] 2 SCR 90, 2000 SCC 39 (CanLII), per Gonthier J, at para 26
    R v Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), per Lamer J at p. 1072
  3. ↑ R v Smith at p. 1073 (SCR), per Lamer J
    R v Roach, 2009 ONCA 156 (CanLII), per Doherty JA at para 9
    R v Goltz, [1991] 3 SCR 485, 1991 CanLII 51 (SCC), per Gonthier J, at p. 500
    Morresey, supra at paras 27‑28
    see also R v Wiles, 2005 SCC 84 (CanLII), [2005] 3 SCR 895{, per Charron J
    Ferguson, supra

Considered Offences

The mandatory minimum of 5 years jail for an offence under s. 95(2)(a)(ii) for an offender with a prior related record was in violation of s. 12 and cannot be saved by s. 1.[1]

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.[2]

The mandatory minimum of 90 days (summary) and 12 months (indictment) for child luring was upheld as not cruel and unusual.[3]

Section 99(2) mandatory minimum of 3 years was found to be unconstitutional.[4]

The offence of distribution of child pornography with a minimum of 1 year was found to be constitutional.[5]

  1. ↑ R v Charles, 2013 ONCA 681 (CanLII), per Cronk JA
  2. ↑ R. v Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), per Lamer J
  3. ↑ R v Stapley, 2014 ONCJ 184 (CanLII), per Griffin J
  4. ↑ R v Trepanier, 2016 NBPC 2 (CanLII), per Jackson J
  5. ↑ R v Schultz, 2008 ABQB 679 (CanLII), per Topolniski J

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), 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), (1987), 38 CCC (3d) 534 (Ont. C.A.), 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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