Interpretation of Section 12: Cruel and Unusual Punishment
Images of medieval torture devices immediately spring into the mind with a mention of the words “cruel and unusual punishment”; however, this colorful, romanticized representation is a stereotype. One of the very first mentions of “cruel and unusual punishment” in Canada was in the Miller et al v. The Queen case of 1977. In this case reference to sections 1 and 2 of the pre-Charter Bill of Rights was applied (passive voice) in deciding that the death sentence for murder was indeed constitutional. A lasting influence of this case on section 12 of the Canadian Charter of Rights and Freedoms can be found in the decision that “‘cruel and unusual’ in s. 2(6) are to be read conjunctively
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and refer to ‘treatment or punishment’”. Incorporating definitions of “cruel and unusual” from the pre-Charter Miller et al v. The Queen case set stable legal reference for the interpretation of “cruel and unusual punishment” in section 12 of the Charter of Rights and Freedoms. The Canadian Charter of Rights and Freedoms replaced the Bill of Rights of 1960 and was officially enacted in 1982, serving to enhance and protect individual liberties.
It is one of the defining documents of Canadian history. The Charter is entrenched in the Constitution as a defined promise between denizens and government for the sustainment of “fundamental freedoms, democratic rights, mobility rights, legal rights, and equality rights”. As such, it is a fundamental part of our daily lives. Sections 7-12 of the Charter are particularly important. These legal rights directly regulate the relationship between individuals and the law, allowing for direct public influence and openness of government . Section 12 of the Charter’s legal rights particularly stands out in protection against “any cruel and unusual treatment or punishment” against citizens. This section defines the essence of ethical human treatment while serving as a governmental check and balance of punishment. The success of section 12 has been proven throughout the years of the Charter. From this, we can conclude that Canadian courts have done historically well in maintaining balance between cause for suffering and rightful legal punishment through the application of section 12 of the Canadian Charter of Rights and …show more content…
Freedoms. The case of Regina v. Smith was the first to successfully apply the principles of protection against cruel and unusual punishment in reference to section 12. In 1987, the appellant, Edward Dewey Smith, “pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act”. He was to be charged with eight years of imprisonment by the County Court of Vancouver, however the “seven year minimum sentence imposed by s. 5(2) of the Narcotic Control Act” was challenged “as being inconsistent with [sections] 7, 9 and 12 of the Charter”. Justice Macdonald of the Court of Appeal for British Columbia was “not persuaded that [s. 43] violates either s. 7 or s. 9 of the Charter” and upheld the County Court of Vancouver’s sentence of eight years. The Supreme Court concluded as per Chief Justice Dickson, Justice La Forest, and Justice Lamer that s. 5(2) was in violation of s. 7, 9, and 12 of the Charter of Rights and Freedoms, however still imposed an eight year sentence unto Smith. Justice McIntyre upheld Smith’s eight year sentence mainly due to a consideration of his personal characteristics; Smith “was a multiple offender and had imported enough narcotics that it was not cruel and unusual to sentence him for over seven years. The standard for cruel and unusual punishment should be based on public outrage and the degradation of the offender’s dignity, none of which was found”. In relation to section 12 of the Charter, the seven-year minimum imprisonment was deemed as “cruel and unusual punishment” due to a “gross disproportionality” between the sentence and the severity of the crime; further, the breach by s. 5(2) was not justified as per s. 1 of the Charter. The right against cruel and unusual punishment is a negative right of citizens. By allowing the seven-year minimum sentence to pass, the government would be legally infringing on that right. This infringement would be in direct violation of the purpose and nature of the Charter of Rights and Freedoms, which is to “protect aggressively the civil liberties of individuals from infringement by legislatures”. For example, if a man were to smuggle one ounce of cocaine for personal use, he would previously receive the same seven-year minimum sentence as a man that smuggles large quantities for drug trafficking. In common application, this would be akin to suspending both a student that was tardy twice and a student that skipped classes 90% of the time. This suspension would be incongruent to the offense of tardiness. In both cases, the governing body would be infringing the rights of the individual with minor offenses in relation to the individual with major offenses. Because of this logical reasoning, I believe the ruling by the respondent, the Queen, was correct and just. It is absolutely unreasonable for two people of extremely varying cases to receive the same seven year punishment. There should be flexibility in the law, and the sentence for imprisonment should vary in proportion to the offense so as to not infringe upon section 12 of the Charter. In the very first landmark case referencing section 12, R. v. Smith, the Canadian Supreme Court did well in regulating balance between the severity of drug trafficking and the sentence for imprisonment. Adherence to section 12 of the Charter successfully carried on into the 21st century. In 2001, one of the defining cases of Canadian history, R. v. Latimer, debated the constitutional validity of the sentence for second degree murder with Robert William Latimer as the appellant and the Queen as the respondent. This case was on appeal from the Court of Appeal for Saskatchewan on the basis of violation of s. 12 Charter rights, jury nullification, and defense of necessity. Mr. Latimer’s daughter, Tracy, suffered cerebral palsy and epilepsy. To end his daughter’s suffering, Mr. Latimer carried her to his truck, where he killed her by carbon monoxide poisoning from the exhaust pipes on October 23, 2003. When charged for second degree murder, the Court had to rationalize “whether imposition of mandatory minimum sentence for second degree murder constitutes ‘cruel and unusual punishment’ in this case, so that accused should receive constitutional exemption from minimum sentence” of life imprisonment with no chance for parole in ten years. In conclusion, the Supreme Court decided the minimum sentence was not in fact a violation of his section 12 Charter rights, as his deprivation of his daughter’s life was of utmost violation, and superseded his Charter violation. There was proportionality in the mandatory ten year sentence in relation to the offense of his second degree murder. Latimer’s arguments for defense of necessity and jury nullification were ruled as invalid. Although his negative rights and Charter rights were violated by the government, these violations were overshadowed by his offence of depriving life unjustly from his daughter. Therefore, subjecting him to a ten year minimum sentence was not cruel and unusual punishment, but rather justified execution of the punishment for his crime. If a woman had committed second degree murder of her son and did not have to serve the mandatory ten year sentence, whereas Latimer did, then cruel and unusual punishment as per discrimination would be valid. A violation of section 12 would then be justified, as the Charter “protects individuals from discriminatory actions by the government”; however, Latimer was not discriminated against. Personally I believe that, once again, Section 12 was upheld, and the government was just, in that Latimer received a proportional sentencing that was neither cruel nor unusual. The punishment of a minimum ten years imprisonment fit the crime of second degree murder by meeting “the public standard of acceptability”. Canada continued to deliver objective, just rulings in relation to Section 12 of the Charter of Rights and Freedoms despite changing public attitudes provided in a jump from the 20th to the 21st century. This lawful adherence was clearly demonstrated in the Supreme Court’s handling of the R. v. Latimer case. One of the most recent applications of referral to section 12 of the Charter of Rights and Freedoms can be found in “the Spanking Case” of 2004, in which the Canadian Foundation for Children, Youth and the Law brought a case fighting for the eradication of s.
43 of the Criminal Code of Canada to the Supreme Court: the respondent was the Attorney General of Canada. The applicant, the CFCYL, is an organization built upon providing indirect and direct legal protection and representation to children. The applicant had appealed to the Ontario in a process that stretched from 1999-2002, however was unsatisfied with Justice McComb, Catzman, Douherty, and Goudge’s ruling that s. 43 was constitutional, and that the Supreme Court should set “clearly defined parameters to guide teachers, parents, and caregivers”. The appellant wanted to Court “to remove the existing authorization of the use of ‘reasonable force’ in disciplining children [as per s. 43 of the Code] and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed”. They argued that s. 43 violated s. 7, s. 12, and s. 15(1) of the Charter of Rights and Freedoms and the United Nations Conventions on the Right of the Child. As a response, Justice Binnie (in accordance with Justice Deschamps among others) decided that the subjection of children to spanking was not considered a case of cruel and unusual punishment nor
unconstitutional. This was decided although s. 43 allowed for varying severity of spanking that may or not have been proportional to the justification for punishment due to its vague outlining of using “reasonable force” when spanking children. A parent or teacher was legally allowed to severely beat a child for minor issues such as, for example, stealing a cookie from the cookie jar before dinner. Although s. 43 was not considered unconstitutional in a 6-3 decision, the vague outlining of using “reasonable force” in disciplinary action did not meet with the broad public standard of acceptability. As a result, the Supreme Court set guidelines of clarification for the interpretation of “reasonable force”, following the recommendation by the Ontario Court of Appeal. Spanking was only to be applied to children ages 2-12, could not be done out of anger, and could not be completed using belts or force to the head; further, “teachers [were no longer] permitted to strike students, but… limited force [was] allowed in order to restrain students during a violent outburst”. Children were further protected by the Supreme Court’s amendments to s. 43. Although citizens such as Ailsa Watkinson, who began the challenge in 1995, believe “[s. 43] perpetuates the notion that children are second-class citizens", I do not believe this is so. Children must naturally be conditioned- whether negatively or positively- into societal rules of conduct through the natural process of socialization. Spanking is an effective part of this process. It is not cruel nor unusual punishment, as it is justified disciplinary action by responsible adults. Although the past interpretation of s. 43 was vague and allowed high degrees of spanking for the sake of discipline (and influences from other factors such as anger), the Supreme Court addressed the ambiguity of “reasonable force” in response to the 2004 case of the Canadian Foundation for Children, Youth and the Law v. Canada. The Supreme Court set reasonable parameters. This is of utmost importance, clearly highlighting the children as equal citizens that must not be subject to cruel and unusual punishment just as their post-pubescent counterparts. In the very recent case of the Canadian Foundation for Children, Youth and the Law v. Canada, the Canadian Supreme Court once again upheld the s. 12 Charter right against cruel and unusual punishments- this time in application to children, one of the most vulnerable of groups in society. As historically proven with the landmark cases of R. v. Smith, R. v. Latimer, and the Canadian Foundation for Children, Youth and the Law v. Canada, Canada has done well in maintaining balance between punishment and offense in adherence to s. 12 of the Charter of Rights and Freedoms. By objectively interpreting and applying the law, all choices were made with the utmost sense and sensibility. History repeats itself, and with such a strong record of human rights preservation, it can be assumed that Canada will continue in the path of righteousness for many years to come.
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
One of the few purposes of the Section 11(b) of the Canadian Charter of Rights and Freedoms is to ensure that the right for a fair trial for every person criminally tried on Canadian soil and the right for them to be tried within a reasonable time. This ensures that when the trial is commenced in court while the evidence is fresh and available during the trial. However, trials in the Canadian justice system can be delayed due to many factors in which the criticism could be on either the Crown or the accused. This essay will examine the Supreme Court of Canada case R. v. Morin. In this case, the accused was charged for impaired driving and the trial date set 399 days after the judge scheduled the trial. In total this was 444-days after the accused was charged with the impaired driving offence. The final verdict of this case set a precedent in the justice system due to the decision by the Ontario Court of appeal that decided that the trial delay was reasonable due to lack of prejudice to the accused during the delay.
The Canadian Charter of Rights and Freedoms was implemented 1982 has been essential in providing justice for all Canadian citizens. Countless amounts of cases have been decided to create the Charter that is well known in today’s society. Sharon Turpin and Latif Siddiqui were accused of first degree murder and according to the law, the trial was supposed to be tried by a judge and jury. The accused demanded a trial by judge alone because they believed that they were entitled to such a right. The R. v. Turpin case was a significant case that was tough to decide upon because there were many violations of different statutes such as the Canadian Charter of Rights and Freedoms, and the Criminal
The Canadian justice system, although much evolved, is having difficulty eliminating bias from the legal system. Abdurahman Ibrahim Hassan, a 39 year old man, died on June 11 in a Peterborough hospital, while under immigration detention. He came to Canada in 1993 as a refugee and was suffering from mental, and physical health issues such as diabetes and bipolar disorder. There was an overwhelming amount of secrecy surrounding the death of this troubled Toronto man, and to this day no light has been shed on this tragedy. (Keung, 2015) An analysis of the official version of the law will reveal how race class and gender coincide with the bias within the legal system.
Blair, Annice. Law in Action: Understanding Canadian Law. Toronto, Ontario: Pearson Education Canada, 2003. Print.
Weems v. United States (1910) set a judicial precedent for showing that punishment must be proportionate to the crime committed and allowed courts to decide what is “cruel and unusual”. Lower courts allowed the VIS and that use sometimes came under question. Thus the case was sent to the U.S. Supreme Court to review. In Booth v. Maryland (1987) and Gathers v. South Carolina (1989) the U.S. Supreme Court ruled that VIS could potentially lead to harsher sentences and yet upon further review reconsider their stance on VIS and overturn their decisions and concluded that the Eight Amendment was not violated by victim Impact statements on the ground that such statements did not lead to cruel and unusual punish...
The Canadian Charter of Rights and Freedoms has long been the legal document that protects Canadian citizens from infringements made by unscrupulous politicians and legislators. However, there are questions explored about the Sections of the Charter and in those of Section 7 in particular. This is because of the protective function of Section 7 and its obligations of the protection of a citizen’s rights to life, liberty and security of the person. There are third parties that could be posing “threats” to Charter interests and therefore the extents of Section 7 in terms of its protective function for individuals’ rights are put into question. Section 7 of the Charter says that “[E]veryone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The meaning of Section 7 is to adhere to each individual’s right to the sanctity of life, their physical liberty in a narrow sense, and the integrity of the person is to be kept secure. However, what would the extent of Section 7 be or moreover, what is the extent of each protected interest? The objective of this paper is to examine the extents of Section 7 of the Charter in which the focus is on the protected interests of life, liberty and security of the person. Each protected interest will be discussed in depth with its relationship to a specific Canadian court case. This will help to determine the extent of Section 7 and therefore help understand how much the Charter protects the freedom of Canadian citizens. For right to life, the First Nation communities in Canada had ‘high risk’ of threats to health in their water systems according to Health Canada. The focus of this topic...
This paper will be focusing on the controversial issue of mandatory minimum sentences in Canada. There has been much debate over this topic, as it has quickly become implemented for the sentencing of drug offenders, drug-related crimes and banned firearm offences. I will argue that every case that comes through the criminal justice system is different and deserves a fair trial with a sentence that is not already determined for them. There have been many cases where the judge has no discretion in the sentence due to the mandatory minimum sentences pre-determined for the case, no matter what the aggravating or mitigating factors were. I will argue that the mandatory minimum sentences in Canada should be reduced or eliminated as they result in very few positive outcomes for the offender and society, increase recidivism rates, are very expensive, and in many cases are detrimental and unjust. Throughout this essay I will discuss two main cases that represent an unjust sentencing outcome due to the mandatory minimum sentencing laws. I will stress how it should be the discretion of the judge to individualize the sentences based on the offender’s mitigating factors, aggravating factors and background. Leroy Smickle is the first case discussed through the essay, which ended with the judge striking down the mandatory minimum sentences in Ontario due to the possession of a loaded gun. Robert Latimer was also a highly controversial Canadian case about a father who killed his mentally disabled daughter out of compassion to end her severe suffering. I will be using many academic articles throughout this essay to give empirical support to the overall argument.
The Canadian Justice system is run like a well-oiled machine. It is based on the fair and humane treatment of suspects who remain innocent until proven guilty. There is one big question that has been debated since July 14th, 1976 - should the death penalty have been abolished in Canada? The new younger generation of Canadians seems to agree with me that the death penalty should be resurrected in Canada.
Throughout America’s history, capital punishment, or the death penalty, has been used to punish criminals for murder and other capital crimes. In the early 20th century, numerous people would gather for public executions. The media described these events gruesome and barbaric (“Infobase Learning”). People began to wonder if the capital punishment was really constitutional.
As noted by Allen (2016), measures that are implemented outside the courtrooms, especially in a formal procedure, may lead to the provision of accurate as well as timely considerations for youth crime. As such, Canada is keen in the reinforcement of these regulations, as they determine both short and long-term judicial solutions. Most importantly, the Youth Criminal Justice Act (YCJA) in Canada plays a major role in the implementation of extrajudicial measures as they may affirm to the occurrence of future issues. According to the Government of Canada (2015a), this calls for an attempt to channel out or divert such offenders from the mainstream justice system to a lesser formal way of dealing with the offenses. This paper attempts to investigate the appropriateness of the extrajudicial measures in Canada, and the reason behind why we established these provisions of the YCJA. It also illustrates an example of a Canadian case, which questions the extrajudicial measures. This discussion canvasses the main argument as for or against the extrajudicial measures in Canada through the adoption of recommendations to the Canadian Government about the proper situations in which such processes should be used.
In “The Fish” by Elizabeth Bishop, the narrator attempts to understand the relationship between humans and nature and finds herself concluding that they are intertwined due to humans’ underlying need to take away from nature, whether through the act of poetic imagination or through the exploitation and contamination of nature. Bishop’s view of nature changes from one where it is an unknown, mysterious, and fearful presence that is antagonistic, to one that characterizes nature as being resilient when faced against harm and often victimized by people. Mary Oliver’s poem also titled “The Fish” offers a response to Bishop’s idea that people are harming nature, by providing another reason as to why people are harming nature, which is due to how people are unable to view nature as something that exists and goes beyond the purpose of serving human needs and offers a different interpretation of the relationship between man and nature. Oliver believes that nature serves as subsidence for humans, both physically and spiritually. Unlike Bishop who finds peace through understanding her role in nature’s plight and acceptance at the merging between the natural and human worlds, Oliver finds that through the literal act of consuming nature can she obtain a form of empowerment that allows her to become one with nature.
In the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...
Welsh, B., & Irving, M. (2005). Crime and punishment in Canada, 1981-1999. Crime and Justice, 33, 247-294. Retrieved from http://library.mtroyal.ca:2063/stable/3488337?&Search=yes&searchText=canada&searchText=crime&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dcrime%2Bin%2Bcanada%26acc%3Don%26wc%3Don&prevSearch=&item=18&ttl=33894&returnArticleService=showFullText
Mauer, Marc. "The Race to Incarcerate." The Case For Penal Abolition. Ed. W. Gordon West and Ruth Morris. Toronto, Canada: Canadian Scholars? Press, 2000. 89-99.