What Does Section 12 of the Canadian Charter Protect Against?

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How Is “Cruel and Unusual Punishment” Defined?

The Supreme Court of Canada first explored the meaning of Section 12 in the 1987 case of R. v. Smith. The Court defined “cruel and unusual punishment” as punishment “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate.”

In Smith, the accused pleaded guilty to importing seven and a half ounces of cocaine into Canada. He argued that the seven-year mandatory minimum sentence for importing narcotics was unconstitutional. The Court agreed, finding that because the law could catch such a diverse variety of substances or quantities, the mandatory minimum could force judges to impose disproportionate sentences for minor offences.

What Factors Do Courts Consider When Assessing Proportionality?

In R. v. Smith, the Supreme Court suggested several factors to consider when measuring whether a punishment is proportional:

• The seriousness of the crime
• The personal characteristics of the offender
• The range of punishments available for the court to impose

In R. v. Goltz (1991) and R. v. Morrisey (2000), the Supreme Court added additional considerations:

• How would the punishment in practice impact the offender
• The objectives of the punishment
• Whether other types of punishment could be used instead
• How are other categories of crime punished

Despite these factors, the test remains deferential to the government. In Steele v. Mountain Institution (1990), Justice Cory wrote that judges should only find a punishment to be cruel and unusual in “rare and unique” cases. Courts are generally encouraged to exercise restraint in correcting Parliament’s judgment on appropriate punishments.

Who Does Section 12 Apply To?

Only the government of Canada and its agents are legally bound by the Charter. Section 12, therefore, only applies to punishment imposed by the Canadian government.

The Supreme Court has ruled that judges are not agents of the government for Charter purposes. This means Section 12 can only be used to challenge a punishment that is prescribed by law or imposed by Parliament. Other legal mechanisms allow defence lawyers to appeal sentences imposed by judges.

In 2020, the Supreme Court held that Section 12 protects humans only and does not protect corporations.

How Has Section 12 Been Applied to Mandatory Minimum Sentences?

Section 12 has been applied most commonly to challenge mandatory minimum sentences legislated by the government. The government prescribes an appropriate range of punishment for every offence in the Criminal Code, and, in theory, these ranges are all susceptible to Charter challenge.

The most significant mandatory minimum sentences in the Criminal Code are the mandatory life sentences attached to first and second degree murder. These were tested in the well-known case of R. v. Latimer.

What Happened in R. v. Latimer?

Robert Latimer was accused of killing his daughter, Tracey, who suffered from cerebral palsy. Though Latimer admitted to killing Tracey, he claimed he did so out of love and a desire to end her suffering. In 1997, he was found guilty of second-degree murder.

In Canada, the minimum sentence for second-degree murder is life imprisonment with no chance of parole for ten years. The jury recommended that Latimer be eligible for parole after one year, and the trial judge agreed, granting a “constitutional exemption” based on the idea that the ten-year parole ineligibility would be cruel and unusual punishment.

The Crown appealed, and in 2001, the Supreme Court overruled the constitutional exemption. The Court noted that Latimer’s actions resulted in “the most serious of all possible consequences, namely, the death of the victim” and that he had other, more compassionate options available, such as administering pain medication. The Court concluded that the 10-year parole ineligibility was not disproportionate and did not constitute cruel and unusual punishment.

Does the Death Penalty Violate Section 12?

It remains unclear whether execution constitutes “cruel and unusual punishment” in Canadian law. In the 2001 case of United States v. Burns, the Supreme Court ruled that a Canadian citizen could not be extradited to a country where they faced the death penalty. However, they based this ruling on Section 7 of the Charter (the right to life, liberty, and security of the person) rather than Section 12.

The Court declined to decide whether the death penalty violated Section 12, noting that under Section 32, the Charter only applies to punishments imposed by the Canadian government. Since the defendants could face the death penalty in the United States, not Canada, Section 12 did not apply.

However, the Court hinted that the death penalty “engaged the underlying values of the prohibition against cruel and unusual punishment,” noting its impossibility to correct in cases of wrongful conviction and its perceived arbitrary nature. This suggests the death penalty would likely be found contrary to Section 12 if ever restored in Canadian law.

While extradition to face the death penalty is unconstitutional, individuals may still be extradited to face trial abroad with a special condition that the death penalty not be imposed. Canada must obtain formal assurance from the receiving country that the extradited prisoner will not be executed.

Does Torture Violate Section 12?

Yes, absolutely. In Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court ruled that torture is always considered cruel and unusual punishment. The Court stated that torture is “so inherently repugnant that it could never be an appropriate punishment, however egregious the offence.”

This echoed R. v. Smith, where the Supreme Court wrote that some punishments “will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment.”

The Court in Suresh also found that torture violates Section 7 of the Charter and “shocks the conscience.” As a result, Canada cannot extradite individuals to face torture, just as it cannot extradite them to face the death penalty without assurances.

How Is Section 12 Used in Extradition Cases?

Section 12 applies to extradition because the final decision to extradite an individual is made by the executive branch of government rather than by a judge. Criminal defence lawyers sometimes use Section 12 to protest their client’s deportation to a country where they may face torture or the death penalty.

In the United States, the prohibition against cruel and unusual treatment has been used to challenge the quality of the custodial experience. Similar arguments could arise in Canadian extradition cases in which prison conditions in the receiving country are at issue.

Do You Need Help Challenging a Sentence?

If you believe a sentence imposed upon you or a loved one may constitute cruel and unusual punishment, an experienced criminal defence lawyer can assess whether a Charter challenge is appropriate.

Pyzer Criminal Lawyers has over two decades of experience defending clients throughout Toronto and the GTA, including cases involving constitutional arguments. We understand how to use Charter protections to defend your rights. Contact us at (416) 658-1818 for a free, confidential consultation.