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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]

History

The source of the phrase "cruel and unusual punishment" finds its origin in the English Bill of Rgiths of 1688, which protected against excessvie fines and punishment.[2]

  1. ↑ See R v Smith, 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, per Wilson J, at pp. 1072-74
  2. ↑ 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), 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, supra, 2014 ONCA 439 (CanLII), per Feldman JA, at para 40
    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
    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

A law will violate s. 12 where its "reasonably foreseeable applications" would impose grossly disproportionate sentences on other offenders.[1]

Real cases should be used as starting points when crafting a reasonable hypothetical.[2]

A reasonable hypothetical cannot be "far‑fetched or marginally imaginable cases" or "remote or extreme examples".[3]

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."[4] The consideration should focus on "whether the sentence would be grossly disproportionate in reasonably foreseeable cases".[5]

The hypothetical situations must be "grounded in judicial experience and common sense."[6]

It is recommended that the judge start with an actual case that has arisen and then "make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable".[7]

The court may consider reported cases as examples of actual cases "provided that the relevant facts are sufficient report".[8] Any reported cases, no matter how marginal or uncommon, can be used as a reasonable hypothetical.[9]

The hypothetical must 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".[10]

The foreseeability is not restricted to those "likely to arise in the general day-to-day application of the law".[11] Nor does the standard exclude those offences that are unlikely to arise.[12]

A hypothetical cannot be excluded because it is marginal conduct[13] , the Crown or police will likely exercise discretion to not allow a prosecution[14] , nor the Crown can avoid disproportionate sentences by proceeding by summary conviction.[15]

Personal Characteristics

Personal characteristics of the offender cannot be "entirely excluded".[16] However, it is not appropriate to use "personal features to construct the most innocent and sympathetic case imaginable".[17]

  1. ↑ R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130, per McLachlin CJ, at para 22
  2. ↑ R v Morrissey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 33
  3. ↑ 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, at para 54
    Nur, infra, at para 62
  4. ↑ R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ, at para 57
  5. ↑ Nur, ibid., at para 57
  6. ↑ 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
  7. ↑ Nur, ibid., at para 62
  8. ↑ Nur, ibid., at para 72
  9. ↑ Charboneau, supra, at para 57
  10. ↑ R v Charboneau, 2019 ABQB 882, at para 56
    R v EJB, 2018 ABCA 239, at para 66
  11. ↑ Nur, ibid., at para 68
  12. ↑ Charboneau, supra, at para 57
  13. ↑ Nur, supra, at para 68
  14. ↑ Charboneau, supra, at para 58
  15. ↑ R v Ford, 2019 ABCA 87 (CanLII), per Martin JA, at para 17
    Nur, supra, at paras 85 to 88
  16. ↑ Nur, ibid., at para 74
  17. ↑ Nur, ibid., at para 75

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]

Two-Phase Inquiry

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

First, the judge must consider whether the minimum sentence is grossly disproportionate to the circumstances of the offender and offence before the court.[3] 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.[4]

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.[5]
  2. ask whether the mandatory minimum will require the imposition of a grossly disproportionate sentence.[6]
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.[7]

  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
    R v Nur, 2015 SCC 15, per McLachlin CJ, at para 46
    R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130, per McLachlin CJ, at para 23
  3. ↑ Nur, supra, at para 77
    Lloyd, supra, at para 22
  4. ↑ R v Crockwell, 2013 CanLII 8675 (NL SCTD), per Leblanc J, at para 32
    Nur, supra, at para 77
    Lloyd, supra, at para 22
  5. ↑ R v Ford, 2019 ABCA 87 (CanLII), per Martin JA, at para 10
    Lloyd, supra, at para 23
  6. ↑ Ford, ibid., at para 10 Lloyd, supra, at para 23
  7. ↑ Smith, supra - 7 year minimum for importing narcotics
    Nur, supra - 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.

The court may also consider:[4]

  • "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.[5]

  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. ↑ Smith, ibid., 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
    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
  4. ↑ R v Boudreault, 2018 SCC 58, per Martin J, at para 48
    Smith, supra, at p. 1072
    Goltz, supra, at p. 500
  5. ↑ R v Latimer, 2001 SCC 1 (CanLII), , [2001] 1 SCR 3, per curiam, at para 75

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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