Section 12 of the Canadian Charter of Rights and Freedoms guarantees every individual “a right not to be subjected to any cruel and unusual treatment or punishment”.
Though s. 12 is not used as frequently by criminal defence lawyers as some of the other legal rights in the Charter (for example, ss. 10 or 11), criminal defence lawyers have had some success using s. 12 to challenge sanctions sentences imposed upon conviction.
In the United States the proscription against cruel and unusual treatment” has been used to challenge the quality of the custodial experience and the death penalty. In addition, in the context of an extradition hearing, criminal defence lawyers sometimes use s. 12 to protest their client’s deportation to a country where they may face torture or the death penalty.
Only the government of Canada and its agents are legally bound by the provisions of the Charter. Thus, s. 12 of the Charter only applies to punishment that is imposed by the Canadian government.
The Supreme Court of Canada has ruled that judges are not agents of the government for the purposes of applying the Charter. Thus, s. 12 can only be used by criminal defence lawyers to challenge a punishment that is prescribed by law or imposed by Parliament. (Other legal mechanisms allow criminal defence lawyers to appeal sentences imposed by judges.) The government of Canada prescribes an appropriate range for the punishment of every offence in the Criminal Code.
In theory, these ranges are all susceptible to Charter challenge. However, the Supreme Court of Canada has interpreted s. 12 in a way that is very deferential to the government. In 1990, the Supreme Court, in Steele v. Mountain Institution, stated that judges should only find a punishment to be cruel and unusual in “rare and unique” cases.
Thus, for the most part, the court defers to Parliament’s ability to judge an appropriate range of punishments. Generally, the range in sentence from minimum to maximum allows significant flexibility in sentence.
Section 12 has been applied most commonly to challenge mandatory minimum sentences legislated by the government. Section 12 is also applicable to extradition because the final decision to extradite an individual is made by the executive branch of government, not by a judge.
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The Supreme Court of Canada first explored the meaning of s. 12 – most importantly the definition of the term “cruel and unusual punishment” - in the 1987 case of R. v. Smith. Smith plead guilty to importing seven and a half ounces of cocaine into Canada. He argued that the seven-year mandatory minimum sentence in the Criminal Code for importing narcotics was unconstitutional. The court explained that “cruel and unusual punishment” is defined as punishment “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate”. The court found that the mandatory minimum sentence for importing narcotics did violate s. 12 of the Charter.
Since the law against importing drugs could catch such a diverse variety of substances or quantities, the mandatory minimum sentence could force a judge to impose a disproportionate sentence for a minor crime caught under the law.
In reaching its decision, the court suggested a list of factors one should consider when measuring whether the punishment was proportional, including: the seriousness of the crime, the personal characteristics of the offender, and the wide range of punishments available for the court to impose.
In R. v. Goltz and R. v. Morrisey, the Supreme Court added that a judge could also consider how the offender would be impacted by the punishment in practice, the objectives of the punishment, whether other types of punishment could be used instead, and how other categories of crime are punished when determining whether a punishment is proportionate.
The most significant mandatory minimum sentences in the Criminal Code are the mandatory life sentences attached to first-and-second-degree murder. In the well-known case of R. v. Latimer, Robert Latimer tried to use s. 12 to challenge the mandatory life sentence for murder. Latimer was accused of killing his daughter, Tracey, who suffered from cerebral palsy. Though Latimer admitted to killing Tracey, he claimed that he did so out of love and a desire to end her suffering. In 1997, Latimer was found guilty of second-degree murder.
In Canada, the minimum sentence for second degree murder imposed by the Criminal Code 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 noting that Latimer’s actions were motivated by compassion.
The judge granted him a “constitutional exemption” based on the idea that the ten-year parole ineligibility would be cruel and unusual punishment. The Crown appealed the constitutional exemption. 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 Latimer had other more compassionate options available to him to ease Tracey’s suffering such as administering pain medication. For these reasons, the court concluded that the 10-year parole ineligibility was not disproportionate and did not qualify as cruel and usual punishment.
It is unclear whether execution (i.e., the death penalty) constitutes “cruel and unusual punishment” in Canadian law. In the 2001 case of United States v. Burns, the Supreme Court of Canada ruled that a Canadian citizen could not be extradited to a country where they faced the death penalty.
They based their ruling on an analysis of s. 7 of the Charter, which states that every individual has a right to life, liberty, and security of the person and cannot be deprived of that right except in accordance with the principles of fundamental justice. In Burns, the Supreme Court declined to decide whether the death penalty violated s. 12 of the Charter. Under s. 32 of the Charter, s. 12 only applies to punishments imposed by the Canadian government. Since, in this case, it was in the United States that the two defendants could possibly face the death penalty, s. 12 did not apply. Section 12 could only be applied to the death penalty if the Canadian government chose to restore the death penalty in Canadian law.
However, the Supreme Court did hint that the death penalty “engaged the underlying values of the prohibition against cruel and unusual punishment”. In this way, the Court hinted that the death penalty would probably be considered contrary to s. 12 if ever restored.
Though the court ruled that extradition to face the death penalty (except, perhaps, in the case of crimes against humanity or genocide) is unconstitutional, this has not been interpreted in precluding extradition in these situations. The individual may still be extradited to face trial abroad; however, with a special condition that the death penalty not be imposed. Canada must obtain a formal assurance from the receiving country that the extradited prisoner will not be executed prior to extradition.
In Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada 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”.
The decision in Suresh 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”. In Suresh the court also found that torture violates s. 7 of the Charter. Thus, Canada cannot extradite individuals to face torture, in the same way that they cannot extradite to face the death penalty.
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